Archaic abortion laws in NSW an affront to basic human rights


In 2015, abortion remains a crime in New South Wales. Although, there are lawful means of obtaining an abortion, its continued existence in our criminal legislation indicates that this kind of behaviour is one that is linked to criminality. Procuring an abortion is an offence punishable up to ten years imprisonment for the woman and doctor involved in the termination under sections 82 and 83 of the Crimes Act.

Let this be clear: abortion is a health matter and a medical procedure. It is not criminal conduct. It never has been, as former Prime Minister Tony Abbott infamously decreed, “an easy way out.” The existence of such laws unequivocally denies women the right to bodily autonomy and self-determination - fundamental principles in any sort of commitment to human rights. Women in this state are not entitled to an abortion on demand and yet, one in three Australian women will undergo an abortion in their lifetime.

As the law currently stands in NSW, a doctor must honestly believe on reasonable grounds that “the operation was necessary to preserve the woman involved from serious danger to her life or physical or mental health which the continuance of pregnancy would entail” (R v Wald [1971]). A doctor may take into account economic and social factors of the woman seeking the termination, as well as medical ones. The doctor may also consider the risks of the abortion are not out of proportion to the danger to being averted.

This legal uncertainty unnecessarily puts women, health professionals and doctors at risk. The offence also perpetuates stigma and taboo for something that should be a basic right for women across the state. Removing the overhang of criminality from abortions will be an important step in reducing guilt and negativity associated with the procedure. Where raising a child is not appropriate for a woman, there should be no social coercion to proceed with an unwanted pregnancy.

Globally, a woman dies every 8 minutes from an attempted abortion. Although Australia may have progressed from such shaky practices, such outdated laws and attitudes continue to put women at risk. NSW and Queensland are the only two Australian states where abortion is still a part of the criminal code.

On 28th September 2015 NSW Greens Senator Dr Mehreen Faruqi launched her community campaign to decriminalise abortion and enact privacy zones around abortion clinics around NSW. Dr Faruqi commented, “Many people do not even know that abortion still sits in the Crimes Act in NSW, until they need to make a decision about it. There seems to be a real disconnect between what the law is, what people think it says and what people believe it should be.”

This reform is also seeking to prevent the aggressive and intimidatory tactics used by anti-abortion groups and individuals to harass women as they enter and leave clinics by creating exclusion zones. The intention of such legislation is to ensure medical privacy is respected and that women can have safe access to clinics for a medical procedure.

In this day and age it is shameful that abortion is yet to be decriminalised. A woman’s control over her body and reproduction is a basic human right. A commitment to reproductive rights ensures that women and couples can freely and responsibly choose when and how many children they would like to have without discrimination or reproach. Laws like these undermine the integrity of our criminal justice system and its ability to regulate the worst of human behaviour. It is time that our laws actually meet the needs of the community and make abortions safer, more accessible and free of stigma for all women.


Michaela Vaughan, the author of this article, was the Human Rights Defender intern for Semester two, 2015.   To read more about our internships, click here.


Photo credit: Steve Rhodes/Creative Commons