Opponents claim the new law will allow sex selection and abortion up until birth. But what does the bill actually do?

In the two weeks since an historic bill removing abortion from the New South Wales criminal code passed its first hurdle in the parliament’s lower house, opponents of the legislation have fought hard to stop it becoming law.

Religious leaders, rightwing MPs and conservative media commentators have all mounted a concerted campaign to derail the legislation ahead of the vote. Opponents claim the bill will allow so-called gender or sex selection and abortion “on demand” up until birth.

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They have also argued for the removal of a requirement for medical practitioners with a conscientious objection to performing terminations to refer women to another doctor, and pushed for mandatory counselling for those seeking an abortion.

But what does the bill actually do? What is gender or sex selection and does the bill legalise it? Will women be able to access abortions up until the time of birth, and will doctors be forced to perform them?

What does the NSW reproductive healthcare reform bill do?

NSW is the last state to decriminalise abortion, though it remains in the criminal code in South Australia and Western Australia in some form. That doesn’t mean, however, that women do not have access to terminations.

Doctors are able to conduct abortions if they believe the pregnancy is a risk to a woman’s physical or mental health, and a common law precedent set in 1971 means social and economic factors may also be taken into consideration.

But women accessing terminations still face a legal risk. In the past 25 years a dozen people have been prosecuted under the NSW Crimes Act for abortion offences. Four of those were found guilty and sentenced. The most recent case was in 2017, when a mother of five was prosecuted for self-administering a drug to cause a miscarriage.

Quick guide Abortion in Australia Show Hide Abortion law in Australia varies from state to state. New South Wales

New South Wales is the last state to decriminalise terminations, though it remains in the criminal code in South Australia and Western Australia in some form. Abortion has been a criminal offence in New South Wales since 1900, and unlawfully procuring an abortion is punishable by up to 10 years' imprisonment. Doctors are able to conduct abortions if they believe the pregnancy is a risk to a woman’s physical or mental health, and a common law precedent set in 1971 means social and economic factors may also be taken into consideration. Laws before the NSW parliament would make abortion legal on request up to 22 weeks, and with the approval of two doctors beyond that. Queensland

The NSW legislation is based off the bill that passed in Queensland last year. Abortion is legal until 22 weeks gestation, and thereafter with the approval of two doctors. Victoria

Legal to 24 weeks and then after 24 weeks with two doctors’ approval. ACT

Legal. Until last year, only a registered medical practitioner could carry out the procedure in an approved facility. However a change to ACT law last year now allows general practitioners to prescribe abortion drugs such as MS‑2 Step. South Australia

Legal up to 28 weeks but only if two doctors agree that a woman’s physical and/or mental health is endangered by pregnancy, or for serious foetal abnormality. Unlawful abortion remains a crime. Terminations must be performed in a "prescribed hospital". Western Australia

Legal up to 20 weeks but women must be given the opportunity to participate in counselling before a termination can be performed. Teenage girls under 16 require a parent to be informed. After 20 weeks, terminations become much more difficult to access. A woman must receive approval from two doctors from a statutory panel of six who agree the woman, or her foetus, has a "severe medical condition" that justifies the procedure.

Tasmania

Lawful on request up to 16 weeks, and beyond that point with the agreement of two doctors.

Northern Territory

Legal to 14 weeks with one doctor's approval, and after that to 23 weeks with an additional doctor. Beyond 23 weeks, abortions cannot be performed unless it is performed to save a pregnant person's life.

Based on legislation passed in Queensland last year, the reproductive healthcare reform bill 2019 removes abortion from the state’s 119-year-old Crimes Act.

Co-sponsored by 15 MPs from across the political divide, the original bill created a standalone healthcare act to regulate the procedure. It allows for terminations up to 22 weeks, and after that with the approval of two doctors.

Were there any changes to the bill in the lower house?

Opponents of the bill moved more than a dozen amendments during the lower house debate. Most failed, but there were changes to the legislation.

Most significantly, medical practitioners will be required to offer counselling to a woman seeking an abortion if they believe it would be beneficial. The legislation states doctors will be required to “assess whether or not it would be beneficial to discuss” counselling and then offer it if the woman is interested.

Another change means that after 22 weeks one of the two doctors involved in approving a termination must be a specialist obstetrician or gynaecologist, and it can only occur at a public hospital.

Doctors will also have a statutory requirement to gain “informed consent” before performing abortions – a change the Australian Medical Association said was unnecessary and could cause confusion.

Facebook Twitter Pinterest Tanya Davies speaks during amendments to the reproductive healthcare reform bill. Photograph: Joel Carrett/AAP

What do the bill’s opponents say?

The bill’s supporters argue that what its opponents actually want is to stop the bill passing entirely.

But the debate around the bill has prompted a number of claims about its consequences. The columnist Miranda Devine claimed the bill “sanctions sex-selection abortion” and amounted to “legal gendercide”. The Catholic and Anglican archbishops of Sydney said the bill would allow abortion “right up until birth”.

Others have fought for provisions which would allow doctors with a conscientious objection to performing abortions to not refer women seeking terminations to another doctor. In an opinion piece published in the Daily Mail on Monday, the One Nation upper house MP Mark Latham claimed the “religious freedom of doctors and nurses not to participate in the process has also been wiped” by the bill.

What is gender or sex selection and does the bill allow it?

The issue of “sex selection” was raised during the debate on the bill in the lower house when the conservative Liberal MP Tanya Davies sought to include an amendment stating that terminations not “be used for gender selection”. The contention is that women – Davies said those from “Indian, Chinese and south-east Asian migrant communities” – abort female foetuses because of a “son preference”.

The amendment was rejected because, opponents said, it was unnecessary and unworkable. Instead, an amendment was passed requiring NSW Health to conduct a review into whether there was any evidence of the practice taking place.

Davies relied on a 2018 study from La Trobe University which found that while the ratio of boys and girls born in Victoria was close to natural rates of 105 boys to every 100 girls, there were higher rates of boys born to mothers who had migrated from China and India.

But during a review of the legislation last week, a number of expert medical, legal and women’s groups said there was no evidence the practice was an issue in NSW. Claire Pullen, the chair of Our Body, Our Choices, told the inquiry the La Trobe study “does not show that gender selective abortion is taking place”.

Instead, the study’s authors concluded that while there was some evidence of sex-selective IVF or abortions among some first-generation migrants, it appeared to be taking place overseas. She also pointed out that India already has a ban on gender-selective abortion, which appeared not to be working.

In an opinion piece published last week, the NSW AMA vice president, Dr Danielle McMullen, warned that such a change would force doctors to “move beyond being a carer to a patient to become a mind reader”.

“If a patient wants an abortion on the basis of gender selection, they aren’t telling us,” she wrote.

“This means that doctors would have to view every abortion requested after nine weeks as potentially suspect, saddling doctors with the prospect of being party to a crime. This would lead to delays in delivery of care at best and no procedure at worst.”

Does the bill allow abortion up until the time of birth?

The Catholic and Anglican archbishops of Sydney published a joint statement claiming the bill would allow abortion “for any reason even up until birth”.

“What civil society legislates for the abortion of a baby a week or a day before she is born?”

Those comments have been echoed by a number of the bill’s opponents. But under the common law ruling currently governing terminations in NSW there is no differentiation between the gestation point at which terminations can occur. As the bill’s proponents have pointed out, the proposed legislation actually adds a layer of regulation by requiring the approval of two doctors after 22 weeks.

Beyond that, abortions after 22 weeks are extremely rare – in 2018 the Queensland Law Reform Commission found that only 1% to 3% of abortions in Australia occur after 20 weeks – and occur as a result of severe foetal abnormality.

“Some severe foetal conditions only present at the routine 18-to-20 week ultrasound, and often require further testing,” Melanie Fernandez, the co-founder of the NSW Pro-choice Alliance, told the inquiry last week.

“For women in regional and remote areas, these tests can be delayed, which means they are pushed further into their time,” she said.

“For women in poverty, the ultrasound that happens at 20 weeks is the first opportunity they have to free access to a chromosomal abnormality scan.”

Will doctors be forced to perform abortions?

One Nation’s Mark Latham has promised to move an amendment to ensure medical practitioners “are not made to do anything they regard as morally wrong”.

The bill, he claims, means that “the religious freedom of doctors and nurses not to participate in the process has also been wiped”.

But the legislation states that if a medical practitioner has a conscientious objection to performing abortions, they must only disclose it to the patient seeking the termination and refer them to another doctor. The referral does not need to be in writing.

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Vijay Roach, the president of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, told the inquiry this was already common practice.

“Before this bill is passed we actually are already confronted with the potential that a nurse or a midwife or a doctor does not want to be involved in this process,” Roach said.

“We respect that already so we will not change. Independent of whether this bill passes or not that will be how we practice.

“However, we chose to be doctors, we were not made to be doctors. In choosing to be doctors we have a duty of care to the patient and if the patient seeks our care and we are unable to deliver that care [because of] conscientious objection, then it is our duty, and I think a better term would be transferring the care or providing information to the patient so that she is then able to access the care that she seeks.”