This article is not primarily about the arguments for and against legal abortion. Rather, it is about whether the legislative process imposed to hasten the passage of the Reproductive Health Care Reform Bill 2019 in the New South Wales Parliament, although not technically faulty, is a glaring example of the wrong way in a post-modern 21st Century society to undertake “making law”.

The Standing Committee on Social Issues of the Legislative Council of the New South Wales Parliament (the Upper House) held hearings last week on the Reproductive Health Care Reform Bill 2019 which had passed the Legislative Assembly (the Lower House) on August 8 after an unusually short time for debate.

Some Lower House members have complained bitterly that the Bill had been rushed through without time for proper or adequate consideration and discussion in that House.

The amended Bill only became available to the public around 5pm on Friday, August 9. The Standing Committee’s call for submissions closed on August 13, just three working days after the Bill passed the Lower House. The Committee hearings of witnesses were limited to the two following days, August 14 and 15. I was one of the witnesses and gave evidence in the late afternoon of August 15. The Committee was required to report by August 20, which it has just done (see PDF). It received over 13,000 submissions and at one point on August 13 its website crashed.

What are the ethics of inviting submissions from citizens on such an important personal and societal issue as abortion and then ignoring them, even though these people probably worked over the weekend and far into the night, as I did, to get my submission in before the impossibly short deadline?

Might this contribute to cynicism among the public about politicians? What risks and harms does that cynicism present? For instance, might it harm democracy? Might it harm the “ethical tone” of our society?

Some Upper House Standing Committee members, during their questioning of witnesses other than myself, responded to complaints that there was grossly inadequate time allowed for proper debate of the Bill, let alone “sober second thought” as the role of the Upper House (and one assumes likewise its Committees) is traditionally characterized. They contended that the law governing abortion was hardly a new issue. It had been debated for many years and more time was not needed as all the relevant issues had been canvassed and all points of view fully expressed.

But there is a difference in kind, not just degree, between a debate in the public square or around a dinner table, on the one hand, and a debate in Parliament. The latter is an example of, what is called in law, a “verbal act”. This means it does not consist just of the words spoken, as the former situations do; instead, the words change a reality. An example is a judge handing down a guilty verdict in a criminal trial. That changes the reality of the accused, their status in society and how society may legitimately treat them.

The Reproductive Health Care Reform Bill 2019 is a “verbal act” determining the status or otherwise of unborn children and governing their treatment throughout pregnancy. The debate to decide its final form is certainly not just a dinner party conversation and that debate must be fully engaged in with the seriousness, breadth and depth it demands. 

It makes for interesting speculation why, especially when the Director of Public Prosecutions has not initiated any prosecutions in relation to abortion although it is an offence in the NSW Crimes Act 1900, there was such a sense of urgency to rush the Bill through Parliament.

Might it be related to trying to take divisive political issues off the table as early as possible before another election?

The current law

The Bill would amend the Crimes Act to eliminate the crime of abortion in relation to the termination of pregnancies carried out in accordance with the requirements of the Bill. The Crimes Act provides in section 83:

Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

Courts have interpreted the word “unlawfully” very narrowly – in other words, they have interpreted what constitutes a lawful abortion very broadly — to classify a wide range of reasons for having an abortion as rendering the abortion lawful, especially, in practice, early abortion on demand. As well, as noted already, the Director of Public Prosecutions has exercised its discretion not to initiate prosecutions in relation to abortion.

The proposed new law

The Reproductive Health Care Reform Bill 2019 would allow abortion throughout pregnancy, but the requirements for it to be legal differ depending on the gestational date after which the abortion occurs. The Bill draws a bright line at 22 weeks gestation, which is very late by the standards set in many other countries. France, Germany and the Scandinavian countries have limits of around 12 weeks. It is also post-viability of the fetus – that is, if born, the fetus would have a chance of living — which is usually set at 20 weeks gestation.

Sections 5 and 6 of the Bill, respectively, set out these requirements.  In short, abortion on demand will be available up to 22 weeks gestation. There are just two more conditions – that two “specialist medical practitioners” not both of whom need to be specialists in the usual sense of that designation and that the abortion takes place in a public hospital or “an approved health facility“- up to birth of the child.

Do these provisions need more in-depth discussion?

Will the proposed law restrict current abortion practice in NSW?

One prominent argument used by the Bill’s proponents is that these provisions in the Bill reflect the current reality in NSW. Abortion on demand is already readily available, at least in urban areas. They describe the situation as the law catching up with the current practice of abortion. They further argue that the Bill is more demanding in its requirements for abortion than the present law which has given rise to that current reality through the way in which it’s been interpreted and (not) applied.

But if the current law in NSW has not been applied — indeed it seems to be totally ignored — why would the proposed new law, even if it did enact more stringent safeguards, which is not the case, be treated any differently?

Three cases that show the questions politicians must have time to consider

I lived in Canada and had an academic appointment in both the Faculty of Law and Faculty of Medicine at McGill University for 41 years. I was frequently consulted on medical ethical issues, including those raised by abortion. Here are three examples.

One involved a married woman who wanted a baby and intentionally became pregnant. A scan at 34 weeks gestation showed that the baby had a cleft palate – a congenital split in the roof of the mouth. This is not uncommon and can be repaired with routine surgery. The woman and her husband declared that they “did not want a ‘defective baby’” and the child was aborted.

Another case concerned a 27-year-old PhD student from the Middle East, who was 32 weeks pregnant. The student’s boyfriend was the father. The student came from a very conservative religious Muslim family where even having a boyfriend would not have been allowed, let alone engaging in sex. The student and the baby were both healthy. The baby was aborted.

Both these cases raise the issue of whether legal abortion should be limited to allowing the woman to evacuate her uterus or whether it also should allow death to be intentionally inflicted on a viable child.*

The decision in this regard will determine the nature of the abortion procedure that is used. On the one hand, early labour would be induced and the baby delivered and cared for. On the other hand, the baby would be killed in utero and delivered whether intact or dismembered. This can be a traumatic experience for the healthcare professionals involved, including medical students. Likewise, as sometimes happens, delivering a living baby that was meant to be dead can cause anguish. Horrible stories of such babies being left to die unattended in sluice rooms are reported.

Another case on which I was consulted shows the unique and difficult ethical issues that can arise in the context of in utero human life and abortion. The married parents had a 5-year-old daughter with medically difficult-to-manage Type 1 diabetes. They wanted to use IVF to create a genetically compatible “saviour sibling”, which would be aborted at five months gestation and the fetus’s pancreas transplanted to the 5-year-old daughter. Their request for this procedure was denied on ethical grounds.

Politicians deciding on abortion law must consider how the law they authorize will determine what is done in cases such as these. To decide ethically and wisely takes time, courage and hope – and, perhaps most of all, love.

The Reproductive Health Care Reform Bill 2019 and “Zoe’s law”

Finally, a debate has been sparked by the Bill on so-called “Zoe’s law”. Zoe was a 32 weeks gestation fetus killed by the criminal negligence of a driver on drugs. The New Daily has reported that “NSW Premier Gladys Berejiklian will warn MPs the decriminalization of abortion must be “settled” before she can act on tough new penalties for the deaths of unborn babies from criminal acts including domestic violence. …The New Daily understands that the Premier believes the laws can only be advanced when the abortion question is settled”.

Pro-choice advocates have long opposed laws establishing criminal liability for harming an unborn child, fearing that recognition of an unborn child as the victim of a crime could make people more opposed to abortion.

So now we are being asked to accept that abortion-on-demand should be legalized, but that killing unborn babies in association with a criminal offence is a serious crime. At first blush this seems grossly inconsistent. The informing principle which makes the two possibilities feasible focuses on the wishes of the pregnant woman. If the pregnant woman wants the unborn baby and it’s wrongfully killed, it will be a crime; if she doesn’t want that unborn baby, it will be legal.

Are there any other situations involving the taking of human life, where the verdict of whether or not a criminal offence has been committed depends solely on the wishes of one other person?

Margaret Somerville is professor of bioethics in the school of medicine at the University of Notre Dame Australia.

* Margaret A Somerville, “Reflections on Canadian Abortion Law: Evacuation and Destruction, Two Separate Issues” (1981) 31:1 University of Toronto Law Journal 1-26 (Selected for referencing in Sociological Abstracts, May 1981.)

Margaret Somerville AM, DSG, FRSC, FRSN, DCL is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor...