Many people are unaware that abortion continues to be a crime in NSW under Division 12 of the NSW Crimes Act (sections 82-84), punishable by imprisonment for up to 10 years for the woman or anyone who assists her (including a doctor).
Despite this, women are able to legally access abortions due to the creative and liberal interpretation of these sections by Justice Levine in the District Court case of R v Wald in 1971. He established that an abortion would be lawful if a doctor had an honest and reasonable belief that an abortion was required to avoid a ‘serious danger to the pregnant woman’s life or to her physical or mental health.’ This approach has been subsequently affirmed and broadened by Justice Kirby in a NSW Court of Appeal case in 1994.
However, attempts have recently been made to legislatively erode a woman’s right to procure a late term abortion, with a bill introduced by Fred Nile known as Zoe’s Law which would recognise foetal personhood. While the first version of the bill was unsuccessful there are plans to reintroduce an amended version of it in the near future. If successful, this legislation could render women procuring a late term abortion liable to imprisonment for up to 25 years and may be used to impose restrictions upon the behaviour of pregnant women. For more information, see here.
The Greens drafted a bill to decriminalise abortion by removing Division 12 of the Crimes Act, create safety zones around abortion clinics and oblige doctors to advise and refer patients when they have a conscientious objection to abortion. Had it been passed this legislation would have removed any uncertainty and have required NSW politicians to categorically recognise women’s reproductive rights and reduce the possibility of Zoe’s Law and other similar attempts being made to restrict women’s reproductive rights. Unfortunately it was defeated in 2017, so the campaign continues.