21st August 2019

The Hon. MARK PEARSON (16:48): I speak in support of the Reproductive Health Care Reform Bill 2019 and commend my Animal Justice Party colleague, the Hon. Emma Hurst, for co-sponsoring this much‑needed bill. The Animal Justice Party stands for kindness, empathy, rationality and non-violence and I believe the bill delivers on all these values for the women of New South Wales and their treating doctors.

It is just over two years ago since I stood here in this Chamber speaking in support of the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016. Since the failure of that bill to secure a majority vote New South Wales has become the only State in Australia where women and doctors can be jailed for terminating pregnancies. The only reason this has not caused public outrage is that the New South Wales public is generally unaware that abortion is a illegal. It is only by virtue of the 1971 landmark judgement inRegina v Ward that women who have undergone abortions and doctors who have performed them have not occupied all the jail cells available in New South Wales. The Levine ruling, named after the judge, defined an unlawful abortion as one where there was no “economic, social or medical ground or reason” upon which a doctor could have an honest and reasonable belief that an abortion was required to avoid a serious danger to the pregnant woman’s life or to her physical or mental health. That is a humane and rational defence for abortion whilst it remains a crime, but it is not the basis on which to operate a modern twenty-first century reproductive healthcare program.

Many in this Chamber are undoubtedly keen to leave the law as it stands, believing that abortion should remain a punishable crime but they lack the courage of their convictions to say so. They know that any broadscale attempt to enforce these laws in 2019 would lead to a significant electoral backlash. With an Australian Bureau of Statistics estimated 20,000-plus abortions in New South Wales each year, it would also lead to our jails overflowing with women and fertility control clinics being emptied of medical staff. And so we muddle along with an unacceptable compromise of women and doctors arranging terminations in the twilight zone of legality.

At this point I acknowledge the “#Arrest Us” campaign on Facebook and Twitter, started by Emily Mayo, where dozens of women have confessed to having committed the crime of abortion and are prepared to be arrested. To my knowledge no police officer is knocking down any door. That is not to say that there have notbeen prosecutions in the modern era. Data from the NSW Bureau of Crime Statistics and Research reveals that12 people have been prosecuted under the New South Wales Crimes Act for abortion offences in the past 25 years. A 2018 survey by researchers at the University of Sydney and James Cook University found that 76 per cent of respondents did not know that abortion was a criminal offence in New South Wales. Once this information was provided, 73 per cent of those who were surveyed thought abortion should be decriminalised and regulated as a healthcare service, which is exactly what this bill proposes. With three-quarters of the population saying abortion should not be a crime and should be dealt with by healthcare professionals, legislators should feel very confident in having the support of the vast majority of New South Wales residents when voting to pass this bill.

So how did New South Wales women come to be so ill-served by their elected representatives that they could be imprisoned for exercising agency over their own bodies? The Crimes Act containing the abortion provisions was proclaimed nearly 120 years ago, at a time when women, and in particular married women, were not afforded the same rights and privileges as men. I know it will upset the Hon. Mark Latham but I should clarify that statement as “white, heterosexual men” because Indigenous people, non-white migrants and gay men were not afforded the same range of rights and privileges as the straight man. In 1900 women’s lives were controlled by their guardians, either young women by their parents or older women by their husbands, and indeed even seen as being in service to the State to ensure the production of the next generation of citizens. Politicians such as Billy Hughes demanded that Australians “populate or perish” and by that he meant white Australians.

The shameful White Australia Policy, which restricted the immigration of non-Europeans, put pressure on white Australian women to populate the country with large families. Contraception was neither reliable nor easily available. Girls were married off in their teens and wives could not refuse to have sex with their husbands. The idea of women having control over their fertility was seen as an existential threat to the British Empire and Australia’s place within it. The bodily autonomy of individual women was not a consideration. In the early 1900s, the New South Wales Government established the Royal Commission on the Decline of the Birth-Rate and on the Mortality of Infants in New South Wales. It was the first inquiry of its kind in the world. The findings linked the use of contraception and abortion to the deterioration of the nation.

In particular, the all-male commissioners condemned women as selfish in attempting to reduce the number of pregnancies that they would have to endure—a remarkable statement given that this was at a time when infant and maternal mortality rates during birth were still common. To understand the misogyny of the times,one cannot go past the quote from the then President of the Victorian Branch of the British Medical Association,Dr Michael O’Sullivan. He believed that the main cause of ill health amongst Australian women was:

… because, living in luxurious indolence, they cannot allow the duties of maternity to disturb their social pleasures; or perhaps, weighed down by shiftless poverty, they dread the devastating crowd of unwanted children.

It was from these racist and sexist beginnings that we inherited the restrictive abortion laws that are still with us today, at least in New South Wales anyhow. As I have acknowledged previously in this House, as a gay man I may not have directly experienced the risks and challenges of unplanned pregnancies, but I do know what it is like for the State to have an unwarranted intrusion into my private life. Feminism has long stated that the personal is political. There is nothing more deeply personal and political than the State legislating what you can and can’t do with your own body. Humans are sexual beings. We crave intimacy and the expression of our sexuality has profoundly informed our music, painting, dance, literature, and indeed our entire culture. It is the puritans and the inquisitors, those obsessed with the control of sex, sexuality and gender, who will fight hardest against women gaining control over their own bodies and what they do with them.

The criminalisation of abortion is about ultimately punishing women for exercising the expression of their sexuality and their agency; that women should not be allowed to “‘get away with sex without consequences”. We know that no contraception is 100 per cent effective. The World Health Organization estimates that if contraception were used perfectly in every instance, there would still be six million unplanned pregnancies each year worldwide. So realistically, a woman who is heterosexually active over the decades of her fertile years will always have a small risk of pregnancy, even when contraception is used. I cannot comprehend how anyone can seriously consider that it is ethical or humane to force a woman to continue with an unwanted pregnancy. I absolutely understand those who, for religious, cultural or personal reasons, decide to continue with a pregnancy even when there may be something to fear or it be inconvenient, life-threatening or terminal for either the mother or child. Unlike some so-called “right to lifers”, my support does not end at the birth of the child. I support alsogovernment assistance for infant, post-natal care, income support for carers of children, affordable housing for families, family-friendly employment laws, subsidised health care and free universal education. To me that is a humane society that cares for its most vulnerable members. To those who ask, “What about the humane treatment of fetuses?”, I state that a fetus cannot take precedence over a person who is already born and fully realised as a human being. A fetus is incapable of an independent existence outside of the woman’s uterus and no woman should be treated as an incubator, gestating against her will.

I repeat my comments from 2017. As a representative of the Animal Justice Party I am most definitely concerned about the potential for sentience and therefore the risk of conscious suffering of the fetus. But, according to the Australian Institute of Health and Welfare, 94.6 per cent of abortions occur under 13 weeks and only 0.7 per cent of abortions occur at more than 20 weeks. There is absolutely no scientific evidence that a fetus has sentience before 20 weeks gestation, which is actually five months and equal to 22 weeks. Of those 0.7 per cent of abortions performed after 20 weeks, the vast majority were as a result of severe fetal abnormality or continuation of a pregnancy that would cause serious life-threatening consequences for the mother, according to figures from a Women’s Health Victoria report in 2007.

I strongly consider that this bill strikes the right balance by removing abortion from the Crimes Act and placing it into health care legislation. I trust women to know what is best for themselves and for doctors to properly assess the circumstances under which they would give approval for abortions over 22 weeks—a discussion that the woman and her doctor have together and they decide together. No-one is suggesting that abortions over 20 weeks are not fraught with ethical dilemmas as fetuses get closer to term, but I have seen no evidence that any woman aborts at such a late stage in pregnancy without there being compelling reasons for such a termination. Any suggestion that women capriciously change their minds about their impending motherhood is both offensive to women in general and is without a shred of evidence. I am sure that other matters such as sex selection, informed consent and disability discrimination may be raised in amendments to this bill, which I will address if and when they are debated.

I apologise to the women of New South Wales for 119 years of state control over their right to choose whether to continue their pregnancies and to all the doctors and medical staff that have provided abortion health care services in a legally ambiguous environment whereby they could be imprisoned or lose their right to practise their profession. I commend this bill to the House.