A young, savvy woman who volunteers in my office expressed great surprise the other day when she found out that abortion remains a criminal offence in NSW.
Her reaction is a tribute to the feminist movement that has so successfully won the battle to provide women with good quality abortion services in Australia. It is also a sign that NSW laws are out of step with women’s valid expectation that abortion be accessible, safe and beyond the reach of the criminal law.
NSW is dragging its feet on this front.
The ACT completely decriminalised abortion in 2002. Abortion is now regulated by the Health Act and it is treated like any other medical procedure.
Victoria modernised its laws late last year, following a comprehensive and skilful review by that state’s Law Reform Commission.
Women in NSW would be forgiven for asking: if they can do it, why can’t we?
To date, Premier Nathan Rees has been silent on abortion law reform. But that is at least an improvement on his predecessors: former Labor premiers Bob Carr and Morris Iemma both said they saw no need to change abortion laws.
In 1971 High Court Judge Justice Windeyer noted that the law marched with medicine, "but in the rear and limping a little". In the case of abortion law in NSW, we are suffering from more than a limp — we have stopped moving altogether.
It is not acceptable that case law spells out when an abortion can occur lawfully, allowing a more conservative judge to change the status quo with a flick of the pen. The potential for criminal prosecution creates concern for women and doctors. It contributes to stigma, humiliation and distress and risks women delaying abortions. Those in the field also report that the current law deters people working in the area and contributes to staff shortages.
A good abortion law would promote safe medical practices, and allow for an unqualified person who carries out an abortion to be prosecuted. It would also be a sensible requirement that an abortion must only occur in an approved medical facility.
There is danger in maintaining the current legal regime that lacks clarity and certainty and is out of touch with people’s experience. The present regime weakens respect for the law.
The reality is that many women do access abortion services in NSW. It is estimated that one in three Australian women have an abortion, with one in four pregnancies terminated.
A majority of Australians also support a woman’s right to choose. Rees would not be out of step with public opinion if he moved to remove abortion from the criminal law. But he will likely need to be pushed. NSW needs a vocal reform movement to provide that push.
On Sunday, the Greens launched a campaign to decriminalise abortion in NSW. The experience in Victoria and the ACT gives hope that the task of moving the regulation of abortion from the Crimes to the Health Act is not too contentious or difficult.
Ideally this is the job of the Government. We are calling on Premier Rees to introduce his own bill, as Victorian Premier John Brumby did in September last year. If he doesn’t, the Greens will consider introducing a private member’s bill into the NSW Parliament.
Public engagement in the law reform process is, of course, crucial. The Rees Government could conduct its own community consultations, or ask the NSW Law Reform Commission to inquire into and report on the issue, as Brumby did in Victoria.
Rees would be wise to step up to the job of modernising NSW abortion laws to guarantee women access to safe, affordable and legal abortions. A failure to act will be yet another indication that under Rees’ leadership, NSW Labor is no more imaginative, courageous or progressive than before.
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