The abortion law dilemma in NSW
Image courtesy of abc.net
NSW has the dubious distinction of being the only jurisdiction in Australia that still treats abortion as a criminal offence. In all other States and and Territories, abortion is legal - as in, not “criminal”, but the laws vary widely in terms of how easy it is to actually obtain a termination, particularly if your main reason for wanting one is just that you’re pregnant, and you don’t want to be. Paradoxically, while NSW is alone in regulating abortion as a crime, it is not the most restrictive abortion regime in the country, and by politicising the question of women’s right to self-determination, the risk of ‘law reform’ is that the situation for women may be made a good deal worse.
Abortion across Australia
The Australian Capital Territory has the lightest-touch abortion laws in Australia - specifying only that an abortion must be supervised by someone who is medically qualified. That’s it. There is no gestational age threshold (a requirement that the termination must be performed before a certain stage in pregnancy), no specified permissible reasons (such as fetal abnormality, or risk to the mother’s health), and no need for approval by a panel of doctors or other experts. So in the ACT, abortion is treated similarly to any other medical procedure, in that you can have one if you need one. The decision about whether or not you need one is made by you and your doctor, who decide whether abortion is appropriate in all the circumstances.
This is approaching the level of regulation that applies to any other medical procedure, many of which also have moral dimensions. Consider vasectomies, surgeries involving use of donor tissue, heart operations, cancer medicine, even boob jobs. People may disagree about the level of need, the morality, or the ethics of many of these procedures, depending on the circumstances, but the state leaves it up the patient and her doctor to decide what should be done. (Legals for the lawyers are here: Medical Practitioners (Maternal Health) Amendment Act 2002; Health (Patient Privacy) Amendment Bill 2015; Health (Improving Abortion Access) Amendment Bill 2018)
The situation ramps up from there. In the second least regulated jurisdiction, Victoria, abortion is accessible in the same way as the ACT only up to 24, weeks, after which two doctors must agree that the procedure is warranted.
A variety of other restrictions apply in the other states and territories after specified points in pregnancy - from 14 weeks in the NT, to between 22 and 24 weeks elsewhere. After this time, all require the agreement of at least two doctors, and restrictions apply as to the circumstances under which abortions can be given. The most heavily restricted state is Western Australia, where an abortion may be performed before 20 weeks if the woman will suffer “serious personal, family or social consequences” if the abortion is not performed. After 20 weeks, two medical practitioners from a Government-appointed panel must agree that either the mother or fetus has a severe medical condition that would support the need for an abortion.
Abortion in NSW
Under NSW law, abortions are an offence under the Crimes Act, but a broad defence applies, under which an abortion may be performed where a doctor forms the honest, genuine and reasonable belief the abortion is necessary to protect the woman from serious danger to her life or her physical or mental health. The law also requires that the doctor must be satisfied that the risk of the termination is not out of proportion with the risk of continuing the pregnancy.
The defence has been interpreted very widely, so that the impact of non-termination on all the circumstances of a woman’s life, including social, emotional, and economic aspects, may be considered in deciding whether an abortion is necessary and proportionate to protecting the mother. In 2006, in the case against Dr Sulaiman Sood, Supreme Court Justice Carolyn Simpson stated that: “The requirement of the law is that medical practitioners assess and balance the relative dangers of termination against the dangers of non-termination – that is, of obliging an unwilling patient to proceed with an unwanted pregnancy with all that that might, physically or mentally, entail.”
But despite the fact that a relatively liberal abortion regime exists, it is clear that women in NSW are not “entitled” to an abortion, either as of right, or as a corollary a general right to privacy or bodily integrity. It is this last fact that has compelled generations of activists to call for a change in the law in NSW. Given the availability of abortion in the state, and wide public support (a recent survey published in the Australian and New Zealand Journal of Public Health showed that support for decriminalising abortion in the State was just shy of 80%), when independent MP for Sydney, Alex Greenwich, introduced the Bill into NSW Parliament, many felt it was long overdue.
However what seemed initially to be a straightforward attempt to recategorise abortion as a healthcare decision has now been derailed. Premier Gladys Berejikilian has delayed a final vote on the Bill, while religious groups and conservative politicians mobilise on social media, backed by foreign actors with deep pockets, including the US Right to Life movement. The chance that through a distorted public relations campaign significant restrictions could be placed in the Bill, is high and rising.
What is at stake?
What is at stake, is an imperfect criminal model which is currently silent on the reasons a woman gives for abortion, and requires only that the woman’s doctor is satisfied that the procedure is necessary and proportionate to protecting her. Crucially, the harms the woman is entitled to protection from, include the harms associated with making her go ahead with a pregnancy she does not want. This boils down to finding a good reason why an abortion should not be performed, when a woman really wants one. Naturally a conversation is required - sometimes several. More talking might be necessary where the woman seems ambivalent, her reasons seem strange, if the circumstances are highly unusual, if she is especially distressed or there are signs of duress. But this is what health care is. And in the end, if woman is determined, and her doctor agrees, an abortion can probably* be performed lawfully in this State.
If anyone is appalled by this, is it useful to consider the usual approach we take to other healthcare decisions that have moral dimensions and that affect others. How do we deal with a young father who doesn’t want to be treated for his cancer? The child who refuses a blood transfusion? The person newly dedicated to altruistic donation of a kidney to a stranger? The drug addict who needs another transplant? The smoker who needs heart surgery? In fact the list of difficult clinical decisions is endless, and also part of the every day practice of medicine. And every day, a solution is arrived at. Sometimes this is not one the whole world would be happy with, but we find a way forward that both a patient and the health care team can live with. And that is all that matters.
So what exactly does health care decision making involve - and what would it look like if we applied it to abortion?
If we treated abortion as a health care decision, we would require firstly, a doctor would need to form the view that treatment was appropriate in all the circumstances, and be willing to offer it on that basis. Second, the patient must be fully informed about the procedure and risks, they must be competent to make the decision and be free from duress. While these may appear to be two consecutive steps, in reality the doctor’s and the patient’s positions are negotiated between them, over the course of the clinical encounter. If a patient seems to want something that seems especially odd, health care professionals are obliged to ask questions and to check they they’re ok. They must be sure the person understands what is happening and what is stake. They will need to be satisfied that the person’s decision making ability has not been hijacked by panic, or fear or duress. Why are you refusing cancer treatment? Why do want to give your kidney to a stranger? Why won’t you have a caesarean section? Why are you insisting on one? These are the questions doctors ask in clinics around Australia every day. And while the vast majority of cases are straight forward (a person requesting an early abortion at 6 weeks, say), some are more tricky (perhaps a belatedly discovered pregnancy and a distressed woman seeking an abortion at 22 weeks) - and they might need more time and discussion. When the risks are high, or when the patient is ambivalent or upset, there are going to be some things to work through. But in the end, in every single case, provided the person is competent and hasn’t been forced, the decision will be theirs, provided a doctor agrees to help them. This will be the case regardless of whether patient’s reasons are good or bad in the minds of others, rational or irrational, moral or immoral. Both the patient and the doctor may take advice from medical professionals and their community of loved ones, but the decision is ultimately a private one, determined by the patient alone, with the help of her doctor.
“This boils down to finding a good reason why an abortion should not be performed, when the alternative is to force a woman to proceed with a pregnancy she does not want to have.”
Should abortion be treated differently to other healthcare decisions?
In making the suggestion that abortion is a health care decision, are we overlooking any important reasons why it ought to be treated differently? It is clear that abortion involves an embryo, and then from about 10 weeks gestation, a fetus - and after that, possibly a live birth. This has moral relevance. In the Abrahamic religious traditions for example, fetuses are considered sacred and deserving of special protection. Traditionally the law reflected those values, and the law relating to abortion is at least partly grounded in the religious view point.
Two responses are available to this. First - opinions have always differed on the moral status of embryos and of fetuses, even among different religious traditions. Secular ethicists may also add that another moral dimension is associated with fetuses - and that is unique connection to their mother while in utero, and their unique impact on the life of their mother for many years afterwards, due to a confluence of physical, emotional, social and economic factors. Promoting one moral perspective over another, or indeed over the general legal right to autonomy and bodily integrity, is a strange choice in a secular democracy.
Second, given that almost everyone accepts that abortion should be allowed under at least some circumstances, if we want to say abortion is illegal “except when…”, we find ourselves straying into the difficult territory of having to specifying exactly when an abortion is ok. It turns out that that too, is rather a difficult thing for people to agree on.
It is clear that we are yet to come up with a settled list of the right or wrong reasons for having a baby, what it takes to be a good parent, and a person might be morally excused from the obligations of parenthood. All of these factors underlie every-day reproductive decisions, and more occasional decisions such as whether or not to proceed with a pregnancy. Do you need a partner? Do you need money? Is it ok to have an abortion if you don’t have those things? What about if your baby is going to have a disability? How bad does the disability have to be? What if you were were raped? What if you had sex with an asshole and regretted it? What if you’ve got three boys and you don’t want a fourth? What if you’ve got cancer? What if you made other plans? Most of us will have trouble answering at least some of these questions, even for ourselves - much less imposing them as a blanket rule for everyone. And let’s face it, some of us have found ourselves firmly believing that some of these reasons for wanting an abortion are wrong, and still wanted one, and got one, for those reasons anyway. We don’t always have the courage of our convictions, and how many times have we been secretly relieved that it’s not actually illegal to be a bad person.
“We don’t always have the courage of our convictions, and how many times have we been secretly relieved that it’s not actually illegal to be a bad person.”
The truth is that our reasons for doing anything are deeply complex, and are often obscure even to ourselves. We can even be relieved to have done things, about which we are also partially ashamed, and grateful that we haven’t had to break the law to do so. Under these circumstances, where the moral and ethical landscape is unclear, and where our reasons for wanting things may be complex, and hard to fully articulate, with whom should the ultimate decision lie, about whether a safe, and readily available procedure to terminate a pregnancy can be taken up by a person who wants it? In general, under comparable circumstances, the law has said that it should lie with the patient alone. All that is required is an informed decision - not reasons that satisfy the moral views of curious onlookers - whomever they happen to be.
Those lobbying for morally-based restrictions on abortion are unlikely to have their minds changed by secular, rights-based arguments. But despite their inflated presence on social media and in the government, their views remain minority views compared with population as a whole. The great risk is that these views will serve to further restrict women’s rights to healthcare - as compared with the current law.