By Daniel Gump
The Reproductive Health Care Reform Bill (2019) (1) is legislation introduced in the Legislative Assembly of New South Wales, Australia to address several topics surrounding abortion and to repeal and amend existing laws from as early as 1900. This article attempts to provide a clear summary and analysis of the bill.
Due to inconsistent usage of terminology between the bill and existing legislative acts it references, some aspects of the text can be confusing upon initial reading. For clarity and consistency, this article uses the earlier-established terminologies. Examples include “abortions” (rather than “terminations of pregnancies”) and “patient” or “pregnant woman” (rather than “person”). Additionally, this article uses American spellings for most terminology but retains Australian spellings within quotations.
The bill includes seventeen Clauses within four Parts. Two Schedules follow them to provide additional clarity. In all, the bill spans twelve pages.
Part 1 establishes the enacted name of this legislation as the Reproductive Health Care Reform Act 2019. It declares commencement upon approval, summarizes the purposes, and notes that definitions are in Schedule 1.
Part 2 contains the core provisions for “registered health practitioners” permitting abortions. These provisions are grouped into Clauses 5-9, which are detailed in the following paragraphs:
Clause 5 limits elective abortion procedures to 22 weeks after the last menstrual period. The patient must give “informed consent” (detailed in Schedule 1), unless a medical emergency prevents it.
Clause 6 provides exceptions to the 22-week limit, permitting abortions when (a-b) two “specialist medical practitioners” agree that “in all circumstances” they should be performed; (c) the patient has given informed consent; and (d) the abortion takes place at “a hospital controlled by a statutory health organisation” (conforming to the Health Services Act 1997 (2)) or an approved health facility. The determination must consider (a) “all relevant medical circumstances,” (b) the patient’s “current and future physical, psychological and social circumstances,” and (c) applicable “professional standards and guidelines.” Ancillary services are not required to take place at the same facility as the abortion. Such services include (a) “tests or other medical procedures,” (b) medication, or (c) another treatment or service. Abortions beyond 22 weeks are also permitted for medical emergencies, which include those to (a) “save the person’s life” (i.e. the pregnant woman) or to (b) “save another foetus” (an apparent reference to “selective reduction” when pregnant with multiple unborn children).
Clause 7 describes requirements for “information about counselling” (exempted for medical emergencies). The medical practitioner must assess if it would be beneficial to provide the patient with information about accessing counseling — including that which is publicly-funded. (There are no details as to what the counseling would address or include.)
Clause 8 declares that while performing an abortion (including administering abortifacient drugs), a “medical practitioner” may be assisted by any of the following individuals: “a medical practitioner, nurse, midwife, pharmacist or Aboriginal and Torres Straight Islander health practitioner, or another registered health practitioner.” Assistance is not authorized if the request violates Clauses 5 or 6.
Clause 9 provides protocol for registered health practitioners to follow if they conscientiously object to performing or assisting in abortions. In such instances, the conscientious objectors must expedite the disclosure of any objections either to their patients or to the other registered health practitioners and offer referrals or patient transfers to other registered health practitioners that the conscientious objectors believe will not also object. This clause excludes medical emergencies.
Clause 10 indirectly addresses professional conduct in relation to violations of Clauses 5-8. It refers notification matters to the Health Practitioner Regulation National Law 2011 (3) and complaint matters to the Health Care Complaints Act 1993 (4). The bill does not limit additional (i.e. beyond this legislation’s scope) compliance duties of registered health practitioners.
Part 3 exempts patients from criminal liability for performing or assisting with abortions on themselves. It would replace a clause in the Crimes Act 1900 (5) that held anyone liable for intentionally causing miscarriages — including pregnant women themselves — with maximum imprisonment of ten years. This new third-party actor requirement would be similar to that of Victoria’s Crimes Act 1958 (6).
Part 4 grants the Secretary of the Ministry of Health the ability to approve hospitals or facilities that can perform abortions past 22 weeks gestation and issues guidelines for the procedures. The Minister must conduct a review within twelve months to determine whether abortions are being performed for purposes of sex-selection. (The bill includes a non-binding statement of opposition to such abortions.) Within five years, the Minister must also conduct a review of its operation and provide a report “to the Presiding Officer of each House of Parliament” then to each House within five days afterwards. The Governor has broad regulatory authority to carry out the provisions of this legislation.
Schedule 1 contains a dictionary of terms used within the bill. Most of these terms refer to non-student medical professions, as defined under the Health Practitioner Regulation National Law in their respective areas of registration. Specifically, these are: “medical practitioner,” “midwife,” “nurse,” “pharmacist,” “registered health practitioner,” and “Aboriginal and Torres Strait Islander health practitioner.” For this text, a “specialist medical practitioner” is a medical practitioner who has additional registration, experience, or qualifications, relevant to obstetrics, gynecology, or abortion. Moreover, it defines “termination” as a means of ending pregnancy via drugs, instruments, or other means, and “informed consent” as consent given “freely and voluntarily” in accordance with applicable guidelines.
Schedule 2 provides itemization of amendments to the Crimes Act 1900. It redefines “medical procedure” (7) to now include any abortions that would become legal under this bill. It also completely replaces the existing abortion penalties (8) with the newly-defined ones and sets the maximum sentence for illegal abortions at “7 years imprisonment.” Finally, the bill removes references to newly-repealed provisions of the Crimes Act from within the Criminal Procedure Act 1986 (9).
Based solely on existing laws, it would appear that there has been a total ban on elective abortions in New South Wales since 1900. In reality, two prominent court cases have established precedent to allow for both therapeutic (i.e. medically-necessary) and elective abortions under very broad considerations.
The first such case, R v. Davidson (1969) (10), was actually decided by the Supreme Court of Victoria. The defendant, Dr. Charles Davidson, MD, was charged with four counts (plus conspiracy) under the unlawful procurement of miscarriage section of the Crimes Act 1958 (11). Justice Menhennitt ruled that the use of the statutorily-undefined word “unlawfully” implies that there must also be certain abortions conducted “lawfully.” He cited a series of similar English abortion laws spanning 150 years to qualify that interpretation, coming to the conclusion:
...for therapeutic abortion to be lawful I think that the accused must have honestly believed on reasonable grounds that the act done by him was necessary to preserve the woman from some serious danger. As to this element of danger, it appears to me in principle that it should not be confined to danger to life but should apply equally to danger to physical or mental health provided it is a serious danger not being merely the normal dangers of pregnancy and childbirth.
As a result of the ruling, the defendant was found not guilty on all counts.
The second case, R v. Wald (1971) (12), followed two years later in the New South Wales District Court. Five people were charged with “unlawfully using an instrument with intent to procure miscarriage of women” under Section 83 (13)of the Crimes Act 1900. Judge Levin cited R v. Davidson and reached the same conclusion but also indicated that the jury should consider “any economic, social, or medical ground or reason” and whether mental health issues could be reasonably expected “some time during the currency of the pregnancy, if uninterrupted.”
Due to the broad exemptions for unlawful abortions set by court precedent, the only recent successful conviction under that statute was of Dr. Suman Sood in R v. Sood (2006) (14) more than a decade ago. This makes the implications of repealing and replacing the abortion ban in the Crimes Act 1900 (the key aspect of this bill) unclear.
As of the time of this writing, the Legislative Assembly has approved the second print of the bill (15). It now awaits confirmation by the Legislative Council with a lapsing deadline of January 31, 2020.
- Reproductive Health Care Reform Bill 2019 (NSW, 2019) https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=3654
- Health Services Act 1997 No 154, Chapter 4, pp. 17-26. (NSW, 1997) https://legislation.nsw.gov.au/inforce/59d71b18-59e1-693c-e068-b6c6de1d2851/1997-154.pdf
- Health Practitioner Regulation National Law 2011, Part 8, pp. 8-15. (NSW, 2011) https://www.legislation.nsw.gov.au/inforce/5f7cecec-66d4-c01e-92b1-f8efa02f105c/2009-86a.pdf
- Health Care Complaints Act 1993 (NSW 1993) https://www.legislation.nsw.gov.au/inforce/d133fbff-a3b9-46e7-f7ff-c679017fb69a/1993-105.pdf
- Crimes Act 1900 (No 40), Part 3, Division 83, p. 70. (NSW, 1900) https://www.legislation.nsw.gov.au/inforce/a0a6239c-5e99-6ad0-fe6a-9d1efad30e4f/1900-40.pdf
- Crimes Act 1958, Section 65 “Abortion performed by unqualified person,” Clause 2 (Victoria, 1958) http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ca195882/s65.html
- Crimes Act 1900 No 40, Part 1, Section 4 Definitions, p. 3. (NSW, 1900) Ibid.
- Crimes Act 1900 No 40, Part 3, Division 12, p. 70. (NSW, 1900) Ibid.
- Criminal Procedure Act 1986 No 209, Schedule 1, Table 1, Clause 2, p. 183 (NSW, 1986) https://legislation.nsw.gov.au/inforce/1a6c82a4-3f87-42e5-d426-ece14acf1cca/1986-209.pdf
- R v. Davidson, VicRp 85, VR 667. (Victoria, 1969) http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VicRp/1969/85.html
- Crimes Act 1958, Section 65 (Victoria, 1958) Ibid.
- R v. Wald, 3 DCR. (NSW, 1971), cited by Drabsch, Talina. “Abortion and the law in New South Wales.” NSW Parliamentary Library Research Service, pp. 19-20. (2005) https://www.parliament.nsw.gov.au/researchpapers/Documents/abortion-and-the-law-in-new-south-wales/Abortion%20and%20index.pdf
- R v. Sood, NSWSC 762 (NSW, 2006) http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2006/762.html
- Reproductive Health Care Reform Bill 2019 (NSW, 2019) Ibid.