Abortion in NSW is legal only in very limited circumstances. Unlike in Victoria, the ACT and Tasmania, a woman cannot obtain an abortion in NSW ‘on demand’, but only if a doctor believes the procedure is necessary to preserve her from serious danger to her life or her physical or mental health.
The offence of unlawful abortion
Under the NSW Crimes Act 1900, it is an offence for a woman to unlawfully administer a drug or use an instrument with the intent to procure her miscarriage (Section 82). This offence carries a maximum penalty of imprisonment for ten years.
Under Section 83 of the Crimes Act, it is an offence for a person to unlawfully administer a drug or use an instrument to procure a woman’s miscarriage. This is also punishable by a maximum of ten years imprisonment.
Under Section 84 it is an offence to unlawfully supply a drug or instrument knowing that it is intended to be used to procure a miscarriage. This offence is punishable by a maximum of five years imprisonment.
Case law on abortion
The 1971 District Court decision of R v Wald established that an abortion is not unlawful if a doctor honestly and reasonably believed that it was necessary to protect that woman ‘from serious danger to her life or physical or mental health which the continuance of pregnancy would entail.’ Subsequent case law has established that ‘mental health’ includes ‘the effects of economic or social stress that may pertain either during pregnancy or after birth.’ (CES v Superclinics Australia Pty Ltd, 1995). It has also been held that the risks of the abortion procedure must not be out of proportion to the danger of continuing the pregnancy.
For an abortion to proceed, the pregnant woman must give informed consent. To do so, she must be given information about the procedure, including any risks and possible complications and the common emotional and psychological effects of undergoing an abortion. A person under the age of 16 can validly consent to an abortion without parental consent if the doctor is satisfied that she is mature enough to understand the implications of the decision.
Safe access law
In June 2018, the NSW parliament passed a law making it an offence to harass people within 150 metres of an abortion clinic. The Public Health Amendment (Safe Access to Reproductive Health Clinics) Bill introduces provisions making it an offence to do any of the following within a safe access zone:
- Harass, intimidate, beset, threaten, hinder, obstruct or impede a person leaving or accessing a reproductive health clinic where abortions are performed;
- Obstruct or block a footpath or road leading to a reproductive health clinic where abortions are performed;
- Communicate about abortions in a way that is reasonably likely to cause distress or anxiety to a person accessing or leaving a reproductive health clinic where abortions are performed;
- Intentionally capture visual data of another person without that person’s consent;
- Publish or distribute a recording of a person made within a safe access zone without the person’s consent;
These offences all carry a maximum penalty of:
- A fine of 50 penalty units or imprisonment for 6 months, or both (for a first offence);
- A fine of 100 penalty units or imprisonment for 12 months, or both (for a second or subsequent offence).
Types of abortion in NSW
Both medical and surgical abortions are available in NSW, following a doctor’s assessment that an abortion is necessary. Medical abortions (where an abortion is brought about by medication, such as RU486 or the ‘abortion pill’) are available up to nine weeks and surgical abortions can be obtained in NSW up to 20 weeks. A referral from a GP is not required and women can contact an abortion clinic directly.
Should the law be changed?
Advocates have long been calling for abortion in NSW and Queensland to be made easier to access. Research shows that the overwhelming majority of Australians support the availability of abortion ‘on demand’ and laws restricting abortion access are often criticised as being antiquated and out of touch with public opinion. However, in 2017 a move to decriminalise abortions in NSW was defeated in parliament, with a conscience vote of 25 votes against to only 14 in favour. Opponents of the change said it would force medical professionals to refer patients to abortion providers, including those already late in their term, and that it would lead to an increased number of women having late-term abortions.
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