The offence is punishable by up to 10 years' jail but the case was dealt with summarily – without a jury – in Blacktown Local Court where the maximum sentence that can be applied is two years. The woman was convicted of the offence and given a three-year good behaviour bond. The abortion provisions in the Crimes Act are rarely used. In 2006, a NSW doctor was placed on a two-year good behaviour bond after being prosecuted for the first illegal abortion in the state in 25 years. The court heard the woman in the latest case had five children between four and nine and fell pregnant in February 2015. At about 19 weeks, her boyfriend informed her that he did not want her to have the child but she did not act upon this.

"At about 26 weeks into the pregnancy her boyfriend again urged her to terminate the pregnancy," the magistrate said. "She told her boyfriend that it may be too late to have an abortion. She contacted a number of clinics in NSW and interstate and was refused from all of them on the basis that her pregnancy was past 20 weeks." The court heard the woman eventually tracked down a man on the internet called "Patrick" who sold her the abortion drug misoprostol for $2000. She took the pills on September 2, 2015, when the foetus was 28 weeks, and was taken to Blacktown Hospital by a friend after she started to feel unwell. "An emergency caesarean section was performed and the child was born," Mr Hiatt said.

The woman's lawyer argued there was a "problem" applying the law in this case because it appeared to be directed to circumstances where the foetus did not survive. But the magistrate said in his view "it makes no difference whether the foetus survives independently or not outside the womb". The court heard expert medical evidence that a miscarriage was considered a "spontaneous" rather than deliberate pregnancy loss under 20 weeks of gestation. After 20 weeks, the death of the foetus was considered a still birth. A foetus was considered "pre-viable" up to 20 weeks, meaning it could not survive on its own. A 28-week-old foetus was "viable".

An abortion was described by the expert as "a deliberate or induced event generally at a time when the foetus is expected to die as a result of the event". The woman's lawyer relied on this evidence to argue the woman did not intend to procure a "miscarriage", because the foetus was not under 20 weeks. But the prosecution said Parliament did not intend to limit the operation of the Crimes Act to cases where a woman intended to procure a miscarriage "prior to the non-viable gestation period". Mr Hiatt agreed with the prosecution and said the law protected a foetus "from the time of conception through all stages of pregnancy to the point of birth". Accepting the argument advanced for the woman "would produce the absurd notion that it is illegal to unlawfully procure a miscarriage when a foetus is pre-viable but legal to unlawfully do so when the foetus is viable", he said.

Associate Professor Arlie Loughnan of the University of Sydney said: "This offence is not that commonly prosecuted and, unfortunately, the factual context out of which it arises is absolutely tragic in all respects."