The Reproductive Health Care Reform Bill 2019 (NSW) (the bill) allows for a medical practitioner to perform an abortion after 22 weeks gestation where they have consulted with another medical practitioner and both consider the abortion appropriate in all the circumstances. The law requires them to consider all relevant medical circumstances, the patient’s current and future physical, psychological and social circumstances and professional standards and guidelines.
It has been suggested that the bill should be amended to reduce the gestation period to 20 weeks and to add additional requirements governing the provision of abortion care that point. This briefing note explains why that would undermine the reproductive health outcomes of women.
Patients who need abortion care after 22 weeks face extremely complex and distressing circumstances
The contexts in which abortions are performed after 22 weeks are complex and distressing and most often involve:
a woman who has just learnt of a severe or fatal foetal condition in the context of a wanted pregnancy,
a woman who has been diagnosed with a life-threatening illness where the continuation of a wanted pregnancy will threaten their life or future health, or
rarely, a woman an extreme situation who has been delayed in accessing healthcare, such as because of an abusive and controlling partner.
Medical experts agree with the 22 week gestation period
The Royal Australian College of Obstetricians and Gynaecologists (RANZCOG) and the Australian Medical Association (NSW) both support the 22 week gestation period. RANZCOG has stated that “a late abortion is only ever performed when there is a compelling clinical need” and that the bill will not change “current clinical practice”.[i]
In fact, according to experts in reproductive health, “Gestational limits discriminate against the most vulnerable of women and women in the most difficult of clinical circumstances. Often disadvantaged women may not access diagnosis of lethal or serious anomalies until later gestations.”[ii]
Time periods force women to rush decision-making
The nature and severity of some serious and fatal foetal conditions cannot be confirmed until 20-22 weeks (after a routine ultrasound at 18-20 weeks). It is critical that women have time to understand their options and to discuss them with medical professionals, support services, and her family.
There is evidence that gestation limits in abortion law cause women in these distressing situation to feel rushed in their decision-making.[iii]
During a parliamentary committee inquiry into this question last year, women in Queensland spoke about what it is like to know there is a time limit on decision making after receiving a devastating diagnosis in the context of a much wanted pregnancy.
Ashleigh’s pregnancy was terminated at 21 weeks and she said:[iv] I have been asked many times over the last four years if I regret my decision. The answer is no. I regret that I did not have more time. I regret that I had to essentially choose between more time and asking for permission or rushing it through. I regret rushing it but I do not regret having my abortion.
Zena’s pregnancy was terminated at almost 22 weeks and she said:[v] When we went for our morphology scan, we were 21 weeks...I was not told my results were urgent or that I had to see my doctor quickly. This time, looking back, was so crucial, but we thought it was all normal. …Hubby and I were on different pages, to be honest. I would have liked more time, yes. I do feel that I would have liked more time. I felt rushed. It was close to Christmas. There were a lot of things going around—a lot of legislation and everything. It was so confusing. It was such a hard time already.
Narrowly worded laws, or arbitrary time limits, will make it harder for doctors to act in their patients best interests and for women to make informed decisions about whether to have an abortion.
Abortions after 22 weeks are uncommon and require individualised responses
Abortions after 22 weeks are very uncommon – around 1 per cent of all abortions. As noted above, they are typically required because of serious fetal or maternal conditions. It is critical therefore that the health system is able to respond compassionately to the individual needs of the patient.
There is no evidence from similar law reforms in Victoria, which passed 11 years ago, of an increase in abortions after 24 weeks gestation (the gestation period in Victoria is 24 weeks).[vi]
Current criteria and frameworks are sufficient for abortions after 22 weeks gestation
All abortions post-22 weeks are managed by hospitals in NSW, where specialists of various disciplines are present to address the complexity of such procedures.
Any mandatory committee process or qualification requirements risk causing further stress and delay at a point when even a short additional delay in performing the termination can increase the risk and complexity of the procedure. Existing clinical practice for abortions after 22 weeks gestation is to work within a multidisciplinary team.
The experience of a panel advisory committee in the WA Health Act demonstrates the risks. In WA, two doctors out of a panel of six must agree to an abortion after 20 weeks for it to proceed. A review of the law in 2002 found women who received an unfavourable diagnosis in the days leading up to that 20 week mark, felt adversely impacted by the uncertainty of a panel making the decision, felt pressure to make a decision while it was still theirs to make, and felt a diminished sense of personal control. Couples who might choose to keep a pregnancy with more time and information, will feel rushed to make a decision.
Medical practitioners in another study reported that committees were ‘slow to convene and inconsistent in their decisions’, and that some women were left with no option but to travel interstate to access abortions.[vii]
Amendments would disproportionately impact regional and vulnerable women
Any amendments that limit the gestational provisions in the bill will directly and disproportionately impact on women in distressing situations who live in regional and remote NSW, for whom delays in accessing health services are an everyday reality.
Gestation periods and criteria in law undermine women’s autonomy
There is no other health procedure where the law actively remove a patient’s right to make medical decisions.
A requirement in law for two doctors to approve an abortion is inconsistent with adults’ usual role as primary decision-maker about medical procedures to their own bodies. It also introduces a higher threshold than currently exists for abortion under the common law in law – the existing law only requires one doctor to be involved in decision-making.
It is critical that the gestation period be no earlier than 22 weeks, and that doctors be able to acting in their patient’s best interests, by considering the totality of a patient’s situation without being subject to rigid and unnecessary legal requirements.
[i] RANZCOG, Reproductive Health Care Reform Bill 2019 (Media Release, 2 August 2019).
[ii] RANZCOG, Media Statement, available at https://www.ranzcog.edu.au/news/Queensland-abortion-law-reform
[iii] Report to the Minister for Health on the Review of Provisions of The Health Act 1911 and The Criminal Code relating to abortion as introduced by The Acts Amendment (Abortion) Act 1998, 17 June 2002, p 23.
[iv] Ashleigh Foley’s statement to Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, Public Briefing-Inquiry into the Termination of Pregnancy Bill 2018: Transcript of Proceedings, Townsville (10 September 2018) 21-25.
[v] Zena Mason’s statement to Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, Public Briefing-Inquiry into the Termination of Pregnancy Bill 2018: Transcript of Proceedings, Cairns (11 September 2018) 22-26.
[vi] The gestation period in the Abortion Law Reform Act 2008 in Victoria is 24 weeks.
[vii] Black K, Douglas H, de Costa C. Women’s access to abortion after 20 weeks’ gestation for fetal chromosomal abnormalities: Views and experiences of doctors in New South Wales and Queensland. Aust N Z J Obstet Gynaecol. 2015; 55(2):144-8