For an abortion to be legal in NSW, a doctor must believe that continuing the pregnancy or raising the child would pose a serious danger to the woman's life or physical or mental health.
When I was 25, I had an abortion.
After I found out I was pregnant, we talked about the options. I decided to end the pregnancy. He took me to a private clinic in Sydney. I spoke to a doctor whom I'd never met before. A woman performed an ultrasound and told me I was "seven weeks along". She showed me a picture of a bean-shaped thing not yet human in form, but recognisable nonetheless. The doctor asked me about my circumstances, asked whether I had considered the options. I had. She wrote a little blurb on my file.
Suddenly, the artificiality of this exchange struck me. There I was, justifying an incredibly profound and personal decision to a complete stranger. Reduced to a file note. A note that did not, and could not, come close to capturing why I was there.
The conversation felt like what it was: a box-ticking exercise. The law required this stranger to probe the reasons for my decision. Because, in NSW, women and doctors can be criminally prosecuted for seeking or performing abortions.
That's right, abortion is a crime.
For an abortion to be legal in NSW, a doctor must believe that continuing the pregnancy or raising the child would pose a serious danger to the woman's life or physical or mental health. That assessment takes into account the woman's socioeconomic circumstances, making it a fairly broad inquiry. As a consequence, most women can lawfully seek an abortion early in a pregnancy.
This argument – that abortions are only "technically illegal" – is commonly used to stymie efforts to change the law. It overlooks important considerations.
You might think it is reasonable to require a woman to explain to a doctor why she wants to end a pregnancy. It's a small price for legal access to the service. It's hardly prohibitive. But what kind of message does this position send about who should make these decisions and why?
The laws in NSW transfer the decision-making capacity from the person most directly affected (the pregnant woman) to a third party (the doctor). As in my case, that third party likely does not know the woman and cannot form a meaningful appreciation of her circumstances. The law reflects a deep distrust in women's ability to make informed reproductive decisions.
Frankly, it's offensive.
While prosecutions are rare in NSW, they do happen. Earlier this year, a NSW woman was convicted of unlawfully procuring her own abortion by taking the abortifacient, misoprostol. And "technically illegal" or not, describing abortion as a crime reinforces the stigma many women feel. This isn't just semantics. As long as abortion is a crime, we sanction judgment of women who choose to end their pregnancies.
Take Cory Bernardi. The day after Australia celebrated an emphatic "Yes" for marriage equality, Bernardi went to work to reclaim some ground for conservatives. On November 16, he introduced a Senate motion seeking to exclude Medicare funding of sex-selective abortions. He also moved to denounce the domestic violence advocacy group White Ribbon for its statements (in support of safe, legal and affordable access to abortions for survivors of sexual violence). The motions were unsuccessful, but they are a stark reminder of the fragility of reproductive protections in Australia.
Criminalising abortion legitimises attempts like Bernardi's to confine and condemn women's reproductive autonomy.
Criminalising abortion also perpetuates popular misconceptions about when and how women make reproductive decisions. True, abortions are a fundamental service for vulnerable women in our society. Those who are survivors of sexual violence, who face economic disadvantage, teenagers, persons in abusive relationships. However, not all women who seek abortions fit within these categories.
I didn't. I wasn't too young. I wasn't poor. I wasn't uneducated. I graduated at the top of my class in law school. I had savings. I didn't have a HECS debt. I'd started full-time work. I wasn't raped. I wasn't dumped. I wasn't misled about the future of the relationship. Maybe I was reckless but not reckless enough to embark on motherhood unprepared. I weighed the options; I made a decision. I had an abortion.
My experience was entirely unremarkable. Women from all walks of life have abortions. Up to one third of Australian women will seek an abortion at some point. We need to decriminalise abortion to debunk the myth that abortions are abnormal or delinquent.
There are many other good reasons why abortion should be decriminalised in NSW (the laws are out of date, they are out of step with public opinion, they are out of line with the laws in other Australian states and territories, just to name a few). But it is critical to understand how the current laws in NSW disempower and stigmatise women.
Queensland is the only other Australian state in which abortion remains a crime. Last weekend, Queensland's law reform commission released a consultation paper and began advertising for submissions from the public for a review of the laws. This is after a pre-election poll in Queensland found that 50.1 per cent of respondents would not vote for their preferred candidate if that candidate wanted access to abortion to remain a criminal offence.
It's time NSW followed suit and reviewed our abortion laws. It's time that we recognise and support the capacity of women to make these decisions, lawfully, for themselves.
Lou Dargan is Co-Head of Strategic Litigation at Grata Fund and a human rights lawyer.