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Abortion and the Law in New NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE Abortion and the law in New South Wales by Talina Drabsch Briefing Paper No 9/05 ISSN 1325-4456 ISBN 0 7313 1784 X August 2005 © 2005 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this document may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent from the Librarian, New South Wales Parliamentary Library, other than by Members of the New South Wales Parliament in the course of their official duties. Abortion and the law in New South Wales by Talina Drabsch NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE David Clune (MA, PhD, Dip Lib), Manager..............................................(02) 9230 2484 Gareth Griffith (BSc (Econ) (Hons), LLB (Hons), PhD), Senior Research Officer, Politics and Government / Law .........................(02) 9230 2356 Talina Drabsch (BA, LLB (Hons)), Research Officer, Law ......................(02) 9230 2768 Lenny Roth (BCom, LLB), Research Officer, Law ...................................(02) 9230 3085 Stewart Smith (BSc (Hons), MELGL), Research Officer, Environment ...(02) 9230 2798 John Wilkinson (MA, PhD), Research Officer, Economics.......................(02) 9230 2006 Should Members or their staff require further information about this publication please contact the author. Information about Research Publications can be found on the Internet at: www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. CONTENTS EXECUTIVE SUMMARY 1 INTRODUCTION............................................................................................ 1 1.1 Definitions ........................................................................................................ 1 1.2 Statistical overview.......................................................................................... 3 1.2.1 Number of abortions......................................................................................... 3 1.3 Overview of the pro-choice/pro-life positions ................................................. 8 1.4 Competing rights or interests............................................................................ 9 1.4.1 Reproductive rights.......................................................................................... 9 1.4.2 Foetal rights.................................................................................................... 10 1.4.3 Rights of the biological father ........................................................................ 11 1.4.4 Rights of the medical staff.............................................................................. 12 2 THE HISTORY OF ABORTION AND THE LAW...................................... 13 3 THE LAW IN NEW SOUTH WALES.......................................................... 19 3.1 Crimes Act 1900............................................................................................. 19 3.2 Interpretation .................................................................................................. 19 3.2.1 R v Wald......................................................................................................... 19 3.2.2 Statements by the NSW Attorney-General..................................................... 20 3.2.3 CES v Superclinics (Australia) Pty Ltd.......................................................... 21 3.3 Parliamentary bills and motions ..................................................................... 24 3.3.1 Infant Life Preservation Bill 1976.................................................................. 24 3.3.2 Bignold abortion motion................................................................................. 24 3.3.3 Procurement of Miscarriage Limitation Bill 1991 ......................................... 25 4 THE LAW IN AUSTRALIA ......................................................................... 26 4.1 Queensland ..................................................................................................... 26 4.1.1 R v Bayliss and Cullen ................................................................................... 27 4.1.2 Veivers v Connolly......................................................................................... 27 4.2 South Australia............................................................................................... 28 4.3 Tasmania......................................................................................................... 29 4.4 Victoria........................................................................................................... 30 4.4.1 R v Davidson .................................................................................................. 31 4.5 Western Australia........................................................................................... 31 4.6 Australian Capital Territory ........................................................................... 33 4.7 Northern Territory.......................................................................................... 33 5 ABORTION REGULATION THROUGHOUT THE WORLD.................... 35 5.1 Statistical overview........................................................................................ 35 5.2 Canada ............................................................................................................ 38 5.3 New Zealand................................................................................................... 41 5.4 United Kingdom............................................................................................. 42 5.5 United States of America................................................................................ 44 5.5.1 Roe v Wade .................................................................................................... 44 5.5.2 Planned Parenthood of Southeastern Pennsylvania v Casey.......................... 45 5.5.3 The current legal and political climate ........................................................... 48 6 CURRENT DEBATES................................................................................... 50 6.1 Some of the weaknesses of the current law.................................................... 50 6.2 Is abortion a criminal or health issue?............................................................ 51 6.3 Emergency contraception............................................................................... 54 6.4 The abortion pill ............................................................................................. 55 6.5 Late-term abortions........................................................................................ 56 6.6 ‘Bubble-zones’ ............................................................................................... 58 7 CONCLUSION .............................................................................................. 60 Abortion and the law in NSW EXECUTIVE SUMMARY The practice of inducing an abortion has existed for many years and remains controversial to this day. The debate on the availability and regulation of abortion services can at times be extremely divisive, yet surveys have found that the majority of Australians are fairly moderate in their view of how accessible the procedure should be. Whilst this paper highlights some aspects of the current debate, it is primarily concerned with the way abortion is regulated in New South Wales, throughout the rest of Australia, and in some overseas jurisdictions. Section one (pp 1-12) of this paper defines some of the key terms used in the context of abortion. It also provides a statistical overview of the number of abortions in Australia and the characteristics of those who undergo the procedure. Nevertheless, the limitations of abortion statistics are noted. This section also outlines the position of those who are ‘pro- life’ and ‘pro-choice’ and examines the results of a survey of the attitudes of Australians toward abortion. It discusses the competing rights and interests that may be involved, namely those of the pregnant woman, foetus, biological father and medical staff. In section two (pp 13-18), a history of the development of the law on abortion is included. It describes the various statutory provisions that have operated in the United Kingdom, and their impact on the development of abortion law in Australia. Much of the law on abortion continues to be located in the various Crimes Acts and Criminal Codes that apply in Australia. Section three (pp 19-25) examines the law in New South Wales, noting the relevant provisions of the Crimes Act 1900 (NSW) and the judicial interpretation of these sections in the case of R v Wald. The civil matter of CES v Superclinics (Australia) Pty Limited is also considered. This section notes some of the parliamentary attempts throughout the years to increase the restrictions on the provision of abortion services in New South Wales. Section four (pp 26-34) compares the regulation of abortion in the various Australian jurisdictions. In Tasmania and Western Australia, the threatened prosecution of medical practitioners who performed abortions after decades of non-prosecution sparked recent reform of the law. The Australian Capital Territory is the only jurisdiction
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