The conviction of Dr Suman Sood on August 23 for unlawfully procuring a miscarriage brings NSW's antiquated abortion laws into the spotlight.
Sood was found by a jury to have supplied an abortion-inducing drug to a 20-year-old woman at 23 weeks of pregnancy in 2002. The woman had requested an abortion and understood the drug to be preparation for the operation the following day. But she gave birth overnight to a very premature baby that did not survive more than four hours.
In court, Sood denied giving the drug. She claimed that she gave only a simple analgesic and refused the woman an abortion, offering instead to refer her to a clinic in Queensland. In addition to charges relating to abortion, Sood was charged with the manslaughter of the foetus. The latter charge was rejected by the jury because of conflicting evidence about whether the foetus had been born alive.
Section 83 of the NSW Crimes Act prohibits "unlawful" abortion, but common law rulings in 1971 and 1995 have made abortion largely available — for women who can find and afford the service. The common law rulings define a lawful abortion as one where the doctor believes it is necessary based on the woman's physical and mental health, and her social and financial circumstances.
The prosecution in the Sood case argued that the abortion was illegal because Sood had not counselled the patient and could not have formed an opinion as to whether, given the circumstances, an abortion was necessary.
But the charge of unlawful abortion is unnecessary and should not exist. If Sood did not explain to her patient that the drug she was administering might result in the birth of an unviable foetus, this could be redressed by civil proceedings covering malpractice or negligence, as in any case in which proper explanation of a proposed treatment's risks and side effects are not given.
Subjecting a doctor to up to 10 years' imprisonment for each of the two counts (administering a drug with intent to procure a miscarriage and procuring a miscarriage) cements the status of abortion as a crime in NSW. This has potential repercussions beyond this case, and for other states with similar laws.
Abortion is singled out as a crime in every Australian state and the Northern Territory, the ACT alone having repealed its abortion laws in 2001.
Criminalising abortion reduces women's access to an essential element of reproductive health care. It gives weight to the idea that there is something wrong with abortion, and may contribute to doctors' reluctance to provide or refer women to abortion services. It also contributes to the climate of secrecy and shame connected to abortion and does nothing to improve the quality of care women receive when they require an abortion.
Abortion should be removed from the criminal code and instead be regulated by the laws that relate to any other medical or surgical procedure. Anything else insults and attacks women, taking away the right to decide whether or when to continue a pregnancy. Only the woman in question — not the courts, doctors or politicians — have the right to make this decision.
Feminists have been campaigning for more than 30 years in Australia for the repeal of all laws relating to abortion. The victory this year of the campaign to overturn the ban on the abortion drug RU486 shows that, even given the current right-wing attacks on women's right to choose, progressive advance is possible.
At a time when the government is introducing Medicare funding for anti-abortion "counselling", while blocking attempts to make anti-abortion "counselling" services disclose that they oppose abortion, we must use the spotlight that has been put on the legal status of abortion by the Sood case to strengthen the campaign to repeal all abortion laws.