On May 14, New South Wales Greens upper house MP Dr Mehreen Faruqi read her intention to introduce a bill to reform abortion law in New South Wales onto the notice paper of the Parliament. This follows Faruqi’s giving notice on June 19 last year of her intention to introduce a bill to decriminalise abortion.
Abortion is an important health issue for Australian women. Yet in 2015, the right to a safe, legal abortion cannot be guaranteed for women in two of the nation’s most populous states: New South Wales and Queensland. This is clearly an unacceptable situation and blatantly out of step with community attitudes.
At present, more than 50% of Australia’s women live in states where the law on abortion dates from the 19th century. A third of the population lives in New South Wales, where the abortion provisions of the 1900 Crimes Act still apply, and more than 20% of Australian women live in Queensland, where the abortion legislation in the 1899 Criminal Code is little changed since the day it was written.
In both states the wording of the legislation was taken directly from the English Offences Against the Person Act of 1861. The United Kingdom rescinded its own laws in 1967, but the outdated law and language remain in place in both Australian states.
Queensland has the most archaic abortion laws in Australia. Anyone directly involved with abortion in Queensland can be prosecuted: including the pregnant woman, the receptionist who answers her enquiry, the counsellor, the nursing assistants and the doctors. Indeed, as recently as 2010, a young Cairns couple were charged with abortion offences and successfully committed to trial. While a jury ultimately acquitted the pair, the experience was a traumatic one for two young people who didn’t believe they were doing anything wrong.
The criminalised nature of abortion means it is a radicalised procedure, particularly in Queensland, but also in New South Wales, and one that carries a significant social stigma for doctors. Unlike the situation in the UK and other parts of Europe, abortion is still not part of mainstream medical practice. Many doctors refuse to provide or refer for abortion, and many others don’t want anyone to know they do so. Rural women, in particular, miss out, as most doctors who provide abortion services are located in urban areas. The secrecy and stigma can make it difficult for women to know what to do or where to go.
Like all other states, both New South Wales and Queensland offer screening tests for foetal abnormality to all pregnant women. In both states, the most up-to-date technology is available for diagnoses of such abnormalities, including NIPT (non-invasive prenatal testing) in the first 12 weeks of pregnancy, now available to all women able to access private pregnancy care. But for women receiving the diagnosis of a severe abnormality and deciding to request a termination of pregnancy, there is the additional and unwelcome news that such a procedure is illegal in their state.
The rudimentary medical technology of the 19th century did not include diagnosis in the foetus, and abortion law has since failed to keep up with modern medical practice. Particularly in the public sector in Australia, where NIPT has yet to be introduced, most abortions for foetal abnormality need to be done later in pregnancy, around 20 weeks, as the diagnoses cannot be made until this time. As pregnancy progresses, the abortion process becomes more difficult for the doctor, more risky to the pregnant woman and much more expensive — sometimes up to $10,000 when done later than 20 weeks.
It’s important that women have access to information and support as early as possible so they can make timely decisions. It’s also important that they have access, when it’s needed, to later abortion services close to home. Too often, significant amounts of money are spent supporting women to travel to Victoria so they can access a later abortion. The current situation disadvantages rural and poor women most of all.
Overwhelmingly, the public supports women’s right to choose whether or not to have an abortion. The 2003 Australian Survey of Social Attitudes found that 81% of those surveyed supported this right. The survey also found that 77% of those who identify as religious support a woman’s right to choose. A 2009 survey conducted by Auspoll of over 1000 Queenslanders found that almost four out of five voters wanted the law changed so abortion is no longer a crime. The campaign to decriminalise abortion in NSW is already well under way and gaining support from women across that state.
In Queensland, the time has also come for reform. For the first time in Queensland’s history, women outnumber men on Queensland’s frontbench. There are now eight women in cabinet, and the leader and deputy leader are both women. There are 22 women in Queensland’s Parliament — more women than ever! And this matters, because we know women make a difference on this issue.
In 2008, in Victoria, there was significant reform of the state’s abortion law. In Victoria, abortion is no longer a crime — and abortion rates have not increased. The successful reform in Victoria happened because women overwhelmingly voted, across party lines, to support the bill. In 2013, in Tasmania, the then-Labor health minister Michelle O’Byrne successfully steered her Reproductive Health (Access to Terminations) Act through the Tasmanian Parliament with the help of women across all parties, largely decriminalising abortion in Tasmania and introducing the first legislation mandating protected access of women to abortion clinics.
Reform also occurred nationally in 2005-2006, when women politicians got together, again across party lines, to pave the way for better access to medical abortions through forcing the approval of RU486. Claire Moore (Labor), Lyn Allison (Australian Democrats), Judith Troeth (Liberal) and Fiona Nash (National) created history when they took a stand on the issue.
Abortion should not remain a crime on the statute books of New South Wales and Queensland, putting women like that Cairns teenager at risk of criminal prosecution. Mehreen Faruqi is leading the way in NSW — women, especially women politicians, should follow in both states.
Heather Douglas is Professor of Criminal Law at the University of Queensland in Brisbane. Caroline de Costa is Professor of Obstetrics and Gynaecology at James Cook University in Cairns.