NSW abortion conviction and the right to choose

A pro-choice rally in Brisbane in March.
Friday, September 1, 2017

The August 14 publication of a NSW local court ruling earlier in the year has again shone light on the state’s anti-abortion laws.

A 30-year-old woman was found guilty of attempting abortion and sentenced to a 3-year good behaviour bond. The court record describes the circumstances, but leaves important questions unanswered.

The case seems to have polarised people who generally support abortion rights because the woman was 28 weeks’ pregnant when she was seeking help. However, the case shows how treating abortion as a crime as it is in NSW, rather than a health issue, is detrimental to women.

Blacktown magistrate Geoffrey Hiatt ruled that the woman had a “clear intent to procure a miscarriage” and that under the NSW Crimes Act, it is an offence for a pregnant woman to administer “any drug or noxious thing” or unlawfully use “any instrument or other means” with the intention of procuring a miscarriage.

The woman’s defence lawyers contended that their client could not be found guilty because the foetus survived. But Hiatt said “it makes no difference whether the foetus survives independently or not outside the womb”, it was his job to apply the law. This section of the Crimes Act is 117 years old.

Pregnancy is a unique experience. Although the joke goes “you can’t be a little bit pregnant”, the progress from conception to birth is a progression of physical development and readiness for independent life.

While each pregnant woman may differ as to whether there are circumstances when they would consider terminating a pregnancy, and those circumstances may depend on significant milestones (like conception, implantation, heartbeat, organ development, quickening and viability), if the decision to continue the pregnancy is made by someone other than the person concerned, and when that decision is backed up by a refusal of care and legal sanction, we should be clear that this is a form of forced childbearing.

The woman and her partner had planned to get married. When she was 19 weeks’ pregnant and again when she was 26 weeks’ pregnant, her partner urged her to get an abortion. He said he didn’t want her to have a baby when they weren’t married. She told him she thought it was too late.

She contacted abortion clinics, but they could not help her. She obtained some misoprostol, a medication that causes uterine contractions, and wound up in hospital. There, she underwent an emergency caesarean.

Across Australia, late abortion (which has no single definition, but is sometimes taken to mean after viability — a shifting milestone as neonatal care advances) makes up a tiny proportion of the abortions carried out every year.

There are no good national statistics, but West Australian data for terminations after 20 weeks put the figure at about 0.5% of the abortions carried out in that state between 1998 and 2002, and the figures have remained fairly stable. In Victoria between 2000 and 2004, there were 35 abortions after 28 weeks, and a total of 220 in 2004 after 20 weeks.

Most late abortions are of wanted pregnancies, carried out because the pregnant woman is facing serious health problems or because of a diagnosis of a serious foetal condition.

Australian, British and North American studies of women presenting for abortion late in pregnancy show that for many, disadvantage and oppression are contributing factors. Not having money to access services sooner, domestic violence, reproductive coercion, geographical isolation and distance from care are all more common in women seeking late abortion.

Delays in diagnosing pregnancy may occur when menstruation is irregular. This is more likely to occur when women are young and their cycles are just getting established, or as women approach menopause. Young women are more likely to be in denial and may find it difficult to approach anyone for support.

Other times, a change in circumstances (including change in support from partner or family) can lead to delays in seeking abortion.

For abortion to be a crime adds an extra layer of delay as does the refusal of medical care, which occurred in this case.

In this case, the magistrate did not use the term coercion, but the description of the agreed facts and the frequency with which women experience reproductive coercion does raise the issue of the extent of the pressure exerted by the woman’s fiance. The withdrawal of his support likely carried immense weight.

Reproductive coercion takes numerous forms from contraceptive sabotage (removal of condoms, disposal of pills and even direct removal of contraceptive devices) and rape to force pregnancy, to threats and violence to bring about a miscarriage or abortion. Of women who report intimate partner violence, a large number report it happening for the first time during pregnancy.

While work is being done by Children by Choice and other agencies to raise awareness of reproductive coercion, and many medical services for pregnant women have systems in place to assist in the detection of violence and coercion, there is still a lot of unmet need for support - as this case suggests.

Whether or not the woman was herself subjected to coercion in her intimate relationship, the refusal of medical care and the court's ruling that she had committed a crime indicate a wider context of reproductive coercion, shared by all women subjected to the same system of law and medical oversight.

Hiatt was clear that regardless of the outcome, and without reference to the duration of the pregnancy, the crime of which she was convicted took place when she took medications with the intention of ending the pregnancy.

He claimed it was the intention that NSW’s anti-abortion law provide “[i]n essence, protection for a foetus from the time of conception through all stages of pregnancy to the point of birth”.

This ruling highlights that abortion in NSW without a doctor's agreement is a crime, and sets a dangerous precedent for women of any pregnancy gestation. Despite the steps forward in access and destigmatisation since the feminist abortion campaigns of the 1970s, the ultimate decision about whether to continue a pregnancy remains in the hands of doctors, backed up by laws and courts.

This woman was carrying a pregnancy she had apparently been prepared to continue with until her partner withdrew his support. Instead of recognising that she was someone in need of assistance — either to continue the pregnancy or to end it — this judgement has made her out to be a criminal. As a society, we should recognise that someone in these difficult, if rare, circumstances needs compassion and support, not pressure (religious or other), refusal of care and a criminal record.

Julie Hamblin, a Sydney lawyer, said: “What this decision does is demonstrate that doctors and their patients risk having this law used against them at any time … Many abortions that are currently being carried out might not withstand legal scrutiny, but the law is mostly not strictly applied. What this case does, I think, is show that you can’t assume that you’re okay because the law won’t be enforced. This case came out of the blue, and now this woman has a criminal record.”

Now is the time to press for legal change and return reproductive rights to women.

[Kamala Emanuel is a medical doctor with more than 20 years experience working in services that provide contraception and/or abortion care.]

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