Abortion has been decriminalised in NSW, and here’s what will actually change

Here's what last week's historic decision to decriminalise abortion in NSW means for women and doctors.

Co-sponsors of the bill celebrate after the passing of the amended Abortion Law Reform Act.

Co-sponsors of the bill celebrate after the passing of the amended Abortion Law Reform Act. Source: AAP

It’s taken 119 years but abortion will be removed from the NSW Crimes Act.

After weeks of heated debate, protests, robocalls and a threatened attempt on NSW Premier Gladys Berejiklian’s leadership, the moment the amended Abortion Law Reform Bill passed the state’s lower house for the final time on Thursday was largely uneventful.

The vote was taken orally with no division - the process of MPs moving to either the left or right side of the room to have their vote counted - needed to determine the final result.

Greens MP's Jenny Leong and Mehreen Faruqi - both long-time abortion rights campaigners - embrace outside NSW Parliament.
Source: AAP

Outside Parliament, and on social media, however, politicians and advocates, many of who had spent decades fighting for the removal of women's reproductive health from the criminal code, embraced and clapped.

But now that celebration has passed, attention is turning to how the new laws - which will come into force over the coming weeks - will affect the practice of obtaining an abortion in NSW. 

Women can now choose whether they have an abortion

Abortion, since 1900, has been outlawed by the NSW Crimes Act which stated that anyone who “unlawfully uses any instrument or other means” with the intention to force a miscarriage will face 10 years in prison.

Despite this, doctors have regularly performed legal abortions in NSW since the 1970s.

This has been possible due to case law that established only “unlawful” abortions were criminalised and that in some instances, an abortion could be undertaken legally.

In the first of these cases, Judge Levine found in 1971 that abortion is lawful when a medical practitioner holds the "honest belief on reasonable grounds that [the abortion] was necessary to preserve the women involved from serious danger to their life, or physical or mental health”. This is known as the Levine Ruling.

But as long as abortion remained in the Crimes Act there was still the potential for health practitioners to be prosecuted and for the case law to be challenged.

“After 119 years we've finally had abortion removed from the Criminal Code so it's no longer a criminal offence to have an abortion,” CEO of Family Planning NSW Ann Brassil told SBS News.

Crucially, this means it will now be entirely the woman’s choice whether she has an abortion, as long as the pregnancy is under 22 weeks, and not dependent on whether a medical professional has decided that remaining pregnant would be harmful to her health.

“[A woman now] goes to see her doctor to facilitate the process either through medication or through surgical procedures; whichever she decides she wants to pursue,” Ms Brassil said.

Under the new laws, there are no limits to when or why an abortion can be requested, as long as the person undergoing the procedure can provide informed consent. 

President of The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) - the peak national body for women’s health care - Dr Vijay Roach told SBS News he was hesitant to use the term “abortion on demand” because of its use by anti-abortion campaigners, but said the legislation allowed for “abortion at a woman's request prior to 22 weeks”.

Opposing groups protest outside the NSW parliament as abortion legislation is debated.
Source: AAP

“It isn't just words or the possibility of being charged, it's the stigma that's associated with making abortion the one area of healthcare that is in the Crimes Act,” Dr Roach, who is himself a general obstetrician and gynaecologist, added.

“Therefore removing it sends a significant message that abortion is the right of a woman and that it is part of healthcare.”

Changes to late-term abortions

Before the reform, the commonly used cut-off for termination of a pregnancy was 20 weeks.

Abortions were still performed after that time, almost exclusively in extreme circumstances, but services for these types of abortions were limited.

This cut-off was set out under the NSW Health framework for terminations, which provided guidelines for doctors before the regulation of abortion under law.

Under the new legislation, this has been extended to 22 weeks.

After that point, two specialists will have to determine that there are “sufficient grounds” for a termination.

Dr Roach believes the old framework was “problematic” as a lot of information about the fetus becomes available around 18 to 20 weeks.

While the new legislation has made it easier for people seeking abortions under 22 weeks, restrictions on terminations after that time are slightly stronger due to the two doctor requirement, Dr Roach said.

In an earlier statement, RANZCOG clarified that late-term abortions were only performed when there was "compelling clinical need".

The input of two doctors is not needed in an emergency. 

The new legislation also outlines that a medical specialist may consult a “multi-disciplinary team or hospital advisory committee” regarding a termination after 22 weeks, mirroring a point that already existed in the NSW health guidelines.

“When a woman is 22 weeks pregnant the reason that she terminates the pregnancy are usually to do with the fact that she's had a diagnosis of a severe foetal abnormality which means that the pregnancy will not result in a live baby or a baby that lives [after] the birth process,” Ms Brassil said.

“And in that situation, it's already common in clinical practice that there are multiple health professionals involved in confirming the diagnosis and supporting the woman and assisting in a good decision.”

Access to abortion services expected to increase

While doctors have had the power to undertake abortions in NSW for years, both Dr Roach and Ms Brassil believe its criminality has meant many doctors have been hesitant to take up the practice, leading to a lack of accessible services in the state.

Ms Brassil said Family Planning had researched urban, regional and remote areas to determine why medical practitioners have chosen not to offer medical abortions and found the criminalisation of abortion was a “significant deterrent”.

“I think women will be more likely to seek health care and also doctors will hopefully be more comfortable with providing that health care, so, therefore, it should improve access,” Dr Roach said, adding that there had been an increase in services in Queensland 

Dr Roach also hopes the new legislation will mean abortion is made widely available in public hospitals for little to no cost.

Currently, it is offered at some public hospitals but not as a “routine service”, he said.

It is unclear how large scale training will be administered for doctors who now wish to offer abortion services. 

For Dr Roach, however, the most important change that will come from the legislation is the removal of stigma both for women who are seeking an abortion and doctors who wish to perform them.

“I'm a doctor, I don't want anything that I do to have even a distant association with the criminal code,” he said.

“It's not just about the practical application of it … this is an important statement that acknowledges the right of a woman to make a decision, that the state cannot talk about what a woman chooses to do to her body as a crime.”

Published 30 September 2019 at 7:16pm
By Maani Truu