Zoe’s Law calls into question criminal status of abortion in NSW

The Zoe’s Law bill, which is still poised to go before the upper house, has renewed calls to remove abortion from the NSW Crimes Act.

Women and health professionals are currently being criminalised for undergoing and performing abortions, a procedure that polls have consistently shown the majority of Australians support.

A national study published in the Medical Journal of Australia in 2010 found that 61 per cent of people believed abortion should be lawful without question for a woman in her first trimester of pregnancy.

But, despite strong public support for the decriminalisation of abortion, the impending Zoe’s Law bill seeks to confer a 20-week-old foetus personhood status. Were the bill passed, it would present even graver implications for women and medical professionals.

Jenny Leong, the recently pre-selected NSW Greens candidate for the seat of Newtown, prioritises decriminalising abortion as a key issue in her campaign.

“Many people don’t know that abortion is in the Crimes Act, but … they’re outraged and support the need for this antiquated, anti-choice law to be repealed [when they do],” she said.

“While abortion sits within the Crimes Act, a woman’s right to choose is more vulnerable to conservative attacks.”

NSW Greens MP Mehreen Faruqi believes that until abortion is decriminalised, as it is in Victoria and the ACT, no new laws relating to pregnancy loss should be passed.

“Once personhood status is enacted for a foetus, another layer of criminality will be added. The rights of the mother could be superseded by the rights of a foetus,” Dr Faruqi said.

While Zoe’s Law would only apply for the purposes of grievous bodily harm, Dr Faruqi points out that foetal loss is already criminalised as an extension of grievous bodily harm to the pregnant woman.

“Any alternatives to recognise loss without enacting foetal personhood can only be considered after we’ve moved to decriminalise abortion,” she said.

National chair of the Women’s Electoral Lobby Melanie Fernandez says that if women are to have legitimate choices around their reproductive health, abortion should be decriminalised and governed by health legislation instead.

“It’s really outdated legislation and it’s not in step with what the community both in NSW and throughout Australia think. Around 80 per cent of people support a woman’s right to choose,” said Ms Fernandez.

Ms Fernandez explains that establishing human rights for a foetus while abortion remains criminalised could lead to women being prosecuted for having an abortion that would otherwise be considered legal.

“If you have a piece of legislation that gives human rights to a foetus … it’s going to be very difficult for judges to make the call that abortion is still legal in certain circumstances,” Ms Fernandez said.

Vice-president of Reproductive Choice Australia Jenny Ejlak says prosecutions for procuring an abortion have occurred within the last decade across NSW and Queensland.

“People say, ‘Look, yes, it’s in the criminal law but no one ever uses it. If it ain’t broke, don’t fix it.’ But, it actually is broken. It creates a lot of stigma for women and healthcare providers.”