Dr Mehreen Faruqi protesting against the introduction of Zoe's Law.
Abortion is an illegal act in New South Wales. It's an offence for a woman to undergo an abortion and for a doctor to perform one under Sections 82-84 of the NSW Crimes Act 1900. As abortions are readily available within the state, many in the community are unaware that the procedure is illegal. Which begs the question: if a law is so out-of-touch with society's values that it's become unenforceable, why even have it at all?
NSW Greens MP Dr Mehreen Faruqi says it hasn't changed because most politicians are uncomfortable discussing it. "It seems that in New South Wales we are reluctant to talk about this subject because of the stigma and shame that surrounds it. It is unacceptable that even discussing a medical procedure like abortion has to happen in the shadows," Faruqi said.
On June 19, Faruqi placed the first abortion decriminalisation bill in NSW history on notice in the upper house. This will open a long overdue debate on a law that she sees as antiquated and damaging. According to her, women in NSW are often unaware that abortion is illegal until they have a need for one. While they are able access safe abortions, the illegality of the procedure places them in difficult territory.
Heidi, who prefers to keep her last name private, is a radio producer. After having covered the issue of abortion on her show, she found herself in a position where she had to undergo the procedure. "I was quite lucky that I could access safe abortion but technically that is illegal and that is quite shocking to a lot of people."
Heidi found that in her situation the two main implications of abortion being illegal were a lack of information on how to access services and a reluctance of people willing to speak about the issue. On ringing a Family Planning Clinic she was told that they could not refer her to a GP who could prescribe her RU486, the abortion pill, nor could they recommend an abortion clinic. "I think that if abortion was legal and if there was less of a taboo around it, people would be able to talk about it and properly assess what the best option is for them," she said. "There remains a stigma around the issue, which means that women don't talk to other women about it."
In November last year, a proposed foetal personhood law was passed by the NSW lower house but as yet has not gone before the upper house. The bill, known as Zoe's Law, seeks to provide a 20-week-old foetus with personhood status. Faruqi said there is an increased need to decriminalise abortion due to the implications of a law such as this being passed.
"Foetal personhood would change the way NSW law conceptualises pregnant women and the foetuses they carry. Judges would have to factor in parliament's new definition of a foetus as a person when considering whose rights take precedence," Faruqi said.
"The status of abortion is already on shaky ground and foetal personhood law, if passed, has the potential of adding another layer of criminality to what should essentially be a human right."
Melanie Fernandez, the national chair of the Women's Electoral Lobby stressed that while abortion does remain criminalised there is a very real chance that people could be prosecuted. "We think that it's really crucial that abortion is removed from the Crimes Act in this state. It should be a woman's and her partner's right to choose what she does with her body. We don't want to see the continued threat hanging over women and their practitioners' heads that criminal charges could be brought against them for procuring an abortion," she said.
In Queensland abortion is also criminalised, with very similar legislation to NSW. Fernandez points to a 2010 case from that state, where criminal charges were brought against a young couple in regards to an abortion. The couple from Cairns purchased RU486 overseas and legally imported back into the country. But under the Queensland Criminal Code Act 1899, they were prosecuted for procuring an illegal abortion because the drug wasn't prescribed by a medical practitioner within Australia. The couple were facing sentences of five to seven years but the jury found them not guilty.
Over the last two decades other states in Australia have reformed their abortion laws. The ACT decriminalised abortion in 2002, whilst significant decriminalisation legislation was passed in Victoria in 2008 and Tasmania in 2013.
Fernandez further warns of the implications of a foetal personhood law being passed while abortion remains criminalised: "The biggest concern for us is that Zoe's Law will create human rights for a foetus and so it will become very difficult for a judge to rule that abortion is legal, when it essentially would be bringing the foetus' human rights into conflict with the mother's human right to be able to choose to have an abortion and while abortion remains in the Crimes Act that then carries a criminal sentence."
Dr. Linda Atkins, a fellow of FRANZCOG and an obstetrician and gynaecologist, pointed out that in NSW abortion attracts a Medicare rebate under certain circumstances, which most people fall into. This is an example of why she finds the laws governing abortion in the state illogical. "How can you have something that's illegal and then attract the Medicare rebate?" she asked. "If you are going to seek a termination in NSW, it's illegal unless it impacts on your social, physical or mental wellbeing to continue the pregnancy, which means that all women have to meet a counselling requirement and have to be assessed for suitability for what's essentially a criminal act."
Atkins believes that the current laws are out of touch and stigmatise abortion. "That is really about outdated attitudes placing a moral value on terminations of pregnancies. It's almost a default way of adding guilt and shame to the emotional burden of women who seek to end pregnancies."
"It's a scandal that abortion is illegal in New South Wales," Atkins said.
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