Abortion Law Reform Act 2019 – Explained (Part 4)

Lower House Amendments

There were a number of amendments proposed and a few passed in the lower house. This blog is designed to give you a comprehensive overview of every set of amendments.

Set 1: Stricter conditions from 20 weeks, not 22 weeks

Moved by Tanya Davies, Member for Mulgoa

Description: to change the point of division from 22 weeks’ gestation (after which a stricter regime is in place) down to 20 weeks’ gestation

Arguments for: Mrs Davies argued that at 20 weeks’ gestation, the halfway point of gestation, babies are becoming viable (citing the survival of a girl delivered at 21 weeks’ 4 days gestation) and can feel pain. She also argued that this was in alignment with existing law in NSW where a baby at 20 weeks’ who is born alive or stillborn, must legally have his or her birth registered. Mr Kevin Conolly pointed out that this amendment went towards addressing community concerns about the bill. Mr Ray Williams stated that a baby at 20 weeks had survived and powerfully stated: “I think that speaks for itself”.

Arguments against: Minister Brad Hazzard argued that science and technology determine that 22 weeks is the appropriate point at which to trigger additional requirements, using Queensland’s Law Reform Commission report as his reference point. Mr Alex Greenwich described these amendments as “some of the most dangerous and hostile amendments we will be facing in the Chamber today“. He argued that scans did not show “all the information at hand” until 18-20 weeks and that this set of amendments would place “further risks … to women’s healthcare outcomes“. Ms Jenny Leong on behalf of the Greens argued that the experts such as the Human Rights Law Centre and the AMA set the 22 week limit and therefore it should stand.

Outcome: Ayes 34, Noes 55 – the Amendment was lost.

Commentary: This debate set the tone for the amendments debated in the lower house with the Queensland Law Reform Commission and ‘expert opinion’ being used to justify why no changes should be made.

Set 2: Professional standards and guidelines

Moved by Tanya Davies, Member for Mulgoa

Description: inserted a specific requirement into the bill that abortions must be performed in accordance with professional standards and guidelines.

Arguments for: Mrs Davies argued that this amendment strengthened protections for women, ensuring that women would be provided with care and medical expertise should they chose to undergo an abortion procedure. Mr Conolly argued that a committee process would have allowed these details to be scrutinised to a larger degree. He stressed that, given he was against this bill in its entirety, he would support this amendment only because it was his obligation to make legislation better.

Arguments against: Mr Alister Henskens argued that a superior amendment would be to expand this to all registered health practitioners and suggested that an amendment along those lines was being drafted. Minister Hazzard claimed that this amendment was unnecessary because medical practitioners are already accountable to a number of State and Federal regulatory authorities.

Outcome: The consideration of this amendment was deferred until the Mrs Leslie Williams, member for Port Macquarie, had the opportunity to present an amendment on similar lines.

Commentary: Mrs Davies gave two examples of rogue doctors in Victoria who did the wrong thing despite the decriminalisation of abortion in that state: Anesthetist James Peter who infected women with Hep C at a private clinic and Dr Mark Schulberg who performed an abortion on a woman with an intellectual disability at the insistence of her rapist father without obtaining lawful consent. These two examples highlighted that medical practitioners do not always follow processes of professional accountability.

Set 3: Informed Consent

Moved by Minister Mark Speakman, Member for Cronulla, Attorney General and Minister for the Prevention of Domestic Violence

Description: to define informed consent as being given freely and voluntarily, within the guidelines applicable to medical practitioners

Arguments for: Minister Stokes described the amendment as clarifying. Mr Henskens supported informed consent being explicitly expressed. Mr Conolly commented that it was good to spell this out in legislation. Mrs Davies claimed it would “support, enhance and enforce” women’s rights.

Arguments against: Minister Hazzard described it as unnecessary. Ms Jenny Leong claimed it was offensive and an “additional barrier” to terminations.

Outcome: Ayes 48, Noes 40 – the Amendment was passed.

Commentary: This amendment began Minister Hazzard’s habit throughout the rest of the debate to describe all amendments he had not negotiated as “unnecessary” and for the Greens, represented by Ms Leong to claim offence and to lament the “additional barriers” each amendment proposed.

Set 4: Specialist medical practitioner required over 22 weeks

Moved by Minister Mark Speakman, Member for Cronulla, Attorney General and Minister for the Prevention of Domestic Violence

Description: a specialist medical practitioner such as an obstetrician or gynecologist, must be involved in terminations performed in late-term, except in the case of emergencies.

Arguments for: Minister Speakman used the case of Dr Sood who began a late-term abortion procedure on a woman which caused medical complications (for which she was found to have acted in a medically negligent manner) as a reason why ‘additional safeguards’ were required for a late-term abortion. Minister Hazzard spoke on behalf of the working group, claiming the amendment has been negotiated and therefore agreed to. Minister Andrew Constance put his support on the record and Minister Stokes stated that the law as drafted was too “broad and that the gravity and complexity, particularly in relation to later-term terminations, was not suitable addressed“.

Argument by Ms Leong: As this amendment had been negotiated with the working group Ms Leong could not disagree however she put on the record that “we must never let the perfect be the enemy of the good” and quoted advice provided by the Pro-Choice Alliance which stated that abortion legislation should “not dictate specific qualifications for abortion… which could be unnecessarily burdensome or risk imposing delays“.

Outcome: The amendment was agreed to “on the voices”, ie without a division being called.

Set 5: Restrict abortions at or near viability (ie from 20 weeks) to where there was a distinct threat to the “life of the mother”

Moved by Tanya Davies, Member for Mulgoa

Description: abortions from 20 weeks could only be performed in rare circumstances where the life of the mother was at risk or the life of another baby (ie a twin) was at risk. Every effort to deliver a live child who would be given neonatal care at birth was written in to this amendment.

Arguments for: Mrs Davies referred to the 10 per cent of late term babies in Victoria who survived late term abortions between 2009 and 2017. She emphasized viability and the neonatal care which should be given to infants should they need to be delivered to save the life of their mother.

I .. stand up [for this amendment because I am]… try[ing] to protect life … [I] say that the only reason we should be considering taking life is to protect life. It is a standard that I can at least defend and I think it resonates with the community.

Mr Kevin Conolly

Arguments against: Minister Hazzard claimed that so few abortions were performed in late-term (implying that it was an over-reaction) and dismissed the amendment using a letter from the current Victorian Health Minister who wrote in glowing terms about the 2008 abortion law reform in her state.

Outcome: Ayes 31, Noes 57 – the Amendment was lost.

Commentary: The debate on this amendment was short – just three members made a contribution. Clearly it was one which many did not want to put their thoughts on the record for!

Set 6: Late-Term abortions only to be performed in approved public health facilities

Moved by Leslie Williams, Member for Port Macquarie

Description: abortions from 22 weeks to be performed only in approved health facilities such as hospitals and publicly funded services. Guidelines about the performance of such late-term abortions to be issued by the Secretary of the Ministry of Health

Arguments for: Mrs Williams moved these amendments on behalf of the working group. She described them as “clarifying amendments“. Minister Speakman stated the need for “safeguards” and supported this drafting. Mr Conolly raised concerns over conscientious objections however stated that he had “no objection in principle to moving this into the realm of public hospitals, which is probably better than not doing so“.

Outcome: The amendments were agreed to “on the voices”, ie without a vote.

Commentary: This amendment, while debate on the floor was short, represented a long negotiation between different MPs. It was viewed as the best amendment possible (or achievable) to restrict late-term abortions from being conducted for-profit in private clinics.

Set 7: Abortions performed on under-aged girls to be reported

Moved by Tanya Davies, member for Mulgoa

Description: when an abortion is performed or requested to be performed on or by a girl under 16 years of age, a mandatory report would be sent to the Secretary of the Department of Communities and Justice

Arguments for: Mrs Davies described this amendment as being necessary to “ensure that vulnerable young girls who are being taken advantage of have as much protection and support as we can possible give them“. Mr Conolly supported the amendment while lamenting that an inquiry would have given time to explore subjects like this in depth.

Arguments against: Minister Hazzard claimed that the amendment was unnecessary and would breach the legal rights of patients to have confidential discussions with medical practitioners. Minister Gareth Ward stated that he felt this was addressed in other legislation, specifically in the Minors (Property and Contracts) Act 1970.

As elected representatives of our community, members in this place have an opportunity to protect young women—particularly in multicultural, ethnic and refugee communities—from what I know happens all too often, which is sexual abuse perpetrated by either a family member or close family friend. This amendment would seek to make absolutely clear to everyone—doctors, counselors, the young women themselves and anyone connected with them—the expected course of action if a young pregnant woman under the age of 16 requests a termination.

Mrs Tanya Davies, member for Mulgoa

Outcome: Ayes 19, Noes 71 – the amendment was lost.

Commentary: This amendment – to provide a level of protection of girls who are under-age who are most vulnerable to abortion coercion – was overwhelmingly defeated. This was the largest defeat of an amendment in the lower house. Interestingly (and appropriately), school students were removed from the gallery for the duration of the debate on this amendment.

Set 8: Counselling required prior to an abortion being performed

Moved by Tanya Davies, Member for Mulgoa

Description: prior to proceeding with a termination, a doctor must ensure that a person has been offered the opportunity to receive counselling.

Arguments for: Mrs Davies pointed to research around abortion as a potential trigger for worsening or exacerbating mental health problems. She spoke on the high risk of maternal suicide following an abortion and argued that women should be offered counselling and that “all available information should be provided to help her make an informed decision“. Mr Williams stated that the amendment should be adopted in this “flawed bill“. Mr Conolly described Mr Greenwich’s description of the amendment as dangerous as “nonsense. Mr Bali described the offer of counselling as something purportedly in current practice and questioned why the bill was so out of step with current practice.

I am frankly appalled that members would come into this place and presume to push through a bill of this significance and deny that offer [of counselling]”

Mr Kevin Conolly, member for Riverstone

Arguments against: Minister Hazzard rejected the amendment, stating: “At the end of the day it is wrong – W-R-O-N-G – to force somebody to have counselling and it denies the woman’s right to determine her own future. In some cases, women would be extremely put off by this. I think it is the wrong thing to do…”. Mr Henskens described that he had drafted amendments which were better than Ms Davies’ proposed amendments (see next set). Mr Greenwich stated that “the notion that a woman needs to be counselled simply because she is seeking a termination is not appropriate” going on to liken an abortion to other irreversible procedures like amputations or vasectomies. Ms Leong rejected the amendment, stating “it is important for us to remember that some of the things that purport to be counselling are promoting a damaging and dangerous agenda to women who are seeking advice about terminations”.

Outcome: Ayes 36, Noes 53 – the Amendment was lost.

Commentary: A lot of scare tactics were used in the arguments against this amendment. The comprehensive evidence presented by Mrs Davies was rejected.

Set 9: Counselling may be offered, at the discretion of the doctor, prior to a termination being performed

Moved by Alister Henskens, Member for Ku-ring-gai

Description: a medical practitioner is required to assess whether counselling is required for the pregnant ‘person’ or the ‘person’s partner’ prior to a termination being performed, except in the case of an emergency.

Arguments for: Mr Henskens argued that this amendment placed the obligation on the doctor providing the termination to whether counselling would be beneficial or not. Counselling was not to be mandatory he stressed. Mr Conolly simply stated: “I support the amendment because it makes the bill slightly better”. Mrs Davies supported the amendment referring to her own attempt to have counselling offered.

[I cannot] understand the logic behind opposing the opportunity for a doctor if he or she sees a need to offer counselling… It is beyond belief and a big mistake that such a logical amendment to improve the bill, which I do not support, is being opposed”

Mr Edmond Atalla, member for Mount Druitt

Arguments against: Ms Trish Doyle stated that people “do not need a law to tell them that they need counselling” and thus it was an unnecessary amendment. Ms Leong interpreted the amendment as interfering in a woman’ right to make decisions about their own bodies. Ms Aitchison spoke against the amendment which she described as “dangerous“.

Ms Elini Petinos moved an amendment to the amendment: suggesting the deletion of “partner”, ie to delete the requirement to consider offering counselling to the partner of the woman seeking a termination.

Then the debate continued…

Arguments on the amended amendment: Minister Hazzard supported the removal of partner due to potential domestic violence “aspects”. Mr Greenwich supported the removal of partners while stating he still had concerns about the amendment overall. Ms Williams described it as a “vast improvement”.

Outcome on Ms Petinos’ amendment to the amendment: Amendment agreed to “on the voices” and therefore passed.

Outcome on Mr Henkens amendment (now without a provision for counselling of the partner): Ayes 53, Noes 34 – the Amendment passed.

Commentary: Minister Hazzard ended up voting for the amendment while Mr Greenwich still opposed it.

Set 10: Conscientious objection – complete freedom by medical practitioners to refuse to perform or facilitate

Moved by Dr Joe McGirr, Member for Wagga Wagga

Description: a registered health practitioner may refuse to perform, assist in or facilitate a termination, if the health practitioner has a conscientious objection to abortion. In refusing, they would have to inform the person requesting the abortion as soon as practicable after the request is made.

Arguments for: Dr McGirr stood up for medical practitioners with an objection to being involved in any aspect of an abortion, from performing to referring, by offering them a way to “remove themselves from the situation“. He claimed that the provisions in the bill went “well beyond what is currently accepted professional practice“, may badly impact both practitioners and their patients and were unnecessary. Treasurer Dominic Perrottet argued for the “freedom of conscience” for medical practitioners claiming that rejecting this amendment would be “setting a precedent that freedom of conscience, and other freedoms, are not universal or inalienable“. Mr Williams pointed out that the bill and the process surrounding the bill was flawed, resulting in the need for amendments such as this one. Mr Atalla pointed to the number of medical practitioners who have lobbied in support of this amendment. Mr Conolly supported the amendment which supported the AMA’s own policy guidelines.

Arguments against: Minister Hazzard defended the provision in the bill to provide a referral claiming that Dr McGirr’s amendment was “driven more by a religious perspective than a balanced medical perspective“. Minister Constance rejected the amendment emphasising the lack of services in regional areas. Mr David Mehan described it as “an appalling amendment” stating that it would reduce the quality of health care in country communities. Ms Kate Washington claimed that this “is a dangerous amendment that risks women’s health”. Minister Kevin Anderson strongly opposed the amendment due to inequitable health care coverage in rural and regional NSW.

Mr Alister Henskens moved an amendment to the amendment: asking for the following phrase to be added: “A registered medical practitioner’s refusal to provide or participate in a treatment or procedure must be done in a way to minimise disruption to patient care and must never be used to intentionally impede a patient’s access to a termination “

Arguments on the amended amendment: Mr Henskens believe that this would mitigate the regional and rural risk factor. Minister Stuart Ayres rejected the amendments “because they increase the complexity of the concept of conscientious objection” and acknowledged that another amendment on this topic would follow, moved by the member for Port Macquarie Mrs Williams. Minister Speakman stated that he also had an amendment drafted on this topic. Mrs Williams opposed this amendment even as amended due to, among other reasons, its inconsistency with current medical practice (in her opinion) and promoted her own amendment.

Outcome of the amendment to the amendment: Amendment agreed to “on the voices” and therefore passed without a division being required.

Outcome of the amendment by Dr McGirr: Ayes 36, Noes 56 – the Amendment was lost.

Commentary: This was a highly emotive and lengthy debate on the rights of medical practitioners to exercise their conscience where many MPs who had not spoken previously in the debate made their opinions known.

Set 11: Conscientious objection – whereby the practitioner must transfer the person’s care to a practitioner without an objection

Moved by Leslie Williams, member for Port Macquarie

Description: this amendment, while called conscientious objection, required the medical practitioner to “without delay” transfer the persons care to another practitioner or health service provider who will provide an abortion service.

Arguments for: Mrs Williams described this as clarifying the intent of the working group. Ms Leong stated that the Greens would not ask for a division on this amendment (meaning that they would allow it to pass) however stated a number of serious concerns such as no written referral process being covered in the amendment. Dr McGirr stated he was disappointed his amendment did not pass but would support this one. Minister Hazzard spoke on the next amendment to be moved by the Attorney General.

Outcome: Amendment agreed to “on the voices”, and therefore passed without a division being required.

Set 12: Conscientious Objection – limiting the need to refer

Moved by Mark Speakman, Attorney General and Minister for the Prevention of Domestic Violence and the member for Cronulla

Description: This amendment limited the need to refer a person when the first practitioner has a conscientious objection if (a) the person was less than 22 weeks pregnant, and (b) if the first practitioner reasonably believes that it would not be difficult for the patient to find another provider

Arguments for: Minister Speakman proclaimed that this amendment balanced freedom of conscience with the obligation to look after patients’ best interests. Minister Stokes described it as a “very slight extension to the concept of freedom of conscience” which he would support. Mr Conolly supported the amendment because it improved the bill and assisted in providing a “better balance“. Mr Henskens supported the amendment which offered “flexibility in respect of a balance between the interests of the conscientious objector on the one hand, and, on the other hand, the interests of access to medical facilities“.

Arguments against: Minister Hazzard argued that this amendment was both unnecessary and counter-productive. Ms Aitchison claimed that doctors with a conscientious objection “can pick up a phonebook” and give a referral. Ms Leong claimed that this amendment placed unnecessary hurdles on women attempting to procure an abortion.

Outcome: Ayes 36, Noes 53 – the Amendment was lost.

Commentary: This amendment was designed as a compromise.

Set 13: Professional conduct or performance

Moved by Leslie Williams, Member for Port Macquarie

Description: The amendment added: “This Act does not limit any duty a registered health practitioner has to comply with professional standards or guidelines that apply to health practitioners” to the bill.

Arguments for: Mrs Williams described this as reinforcing that terminations must be performed in accordance with guidelines, and consistent with clinical practice in NSW.

Outcome: Amendment agreed to “on the voices”, and therefore a division was not required.

Commentary: This was the shortest amendment debated and accepted with no arguments against and only one speaker (the mover of the amendment) for.

Set 14: Insertion of criminal penalties

Moved by Tanya Davies, member for Mulgoa

Description: inserted criminal penalties for practitioners who clearly breach guidelines

Arguments for: Mrs Davies described the removal of all penalties for the most serious circumstances as a serious flaw remedied by this amendment. Mr Conolly supported the premise of the amendment: “because of the gravity and special significance of this situation where the community rightly identifies human life as important, the penalty associated with being unlawful, being outside what we have legislated, should be significant”.

Arguments against: Minister Hazzard argued again that this amendment was not necessary as sanctions would still apply.

Outcome: Ayes 30, Noes 58 – the Amendment was lost.

Commentary: A short debate which concluded in an overwhelming defeat of the amendment to reinsert criminal penalties when practitioners clearly breach their duty of care.

Set 15: Criminal penalties for “intimidation or annoyance by violence”

Moved by Tanya Davies, Member for Mulgoa

Description: imposed criminal penalties on anyone who uses intimidation or annoyance to compel to have or to abstain from having an abortion

Arguments for: Mrs Davies moved this amendment to protect women from “an abusive partner, a scandalised parent, or the pimp of a trafficked woman“. She cited research which showed 64% of women feel pressured by others to have an abortion. Mr Conolly applauded the amendment which said heightened the focus on violence and intimidation being used against pregnant women.

Arguments against: Minister Hazzard, not surprisingly, saw this amendment as unnecessary.

Outcome: Ayes 27, Noes 59 – the Amendment was lost.

Commentary: Another short debate with even less support than the previous set of amendments on criminal penalties.

Set 16: Public health – inserted into the Public Health Act 2010

Moved by Tanya Davies, Member for Mulgoa

Description: to insert abortion into the Public Health Act 2010 as a reportable category 1 procedure to ensure that data on abortions in NSW was collected.

Arguments for:   Mrs Davies pointed to the need for data collection which would assist medical professionals, policymakers and lawmakers to have all the “necessary information” to help provide the “best care“. Mr Williams supported the amendment to collect data so that we know more about the reality of abortion – at least in terms of quantity. Mr Conolly supported it by stating: “The amendment is not an outrageous proposition; it is not a barrier. It is a data-collecting exercise to inform the Parliament so it knows how to treat public policy”.

Arguments against: Ms Leong opposed the amendments stating that it would place barriers to accessing abortion. Mr Ryan Park “strongly” opposed the amendment describing is as “highly inappropriate” and as a barrier to access. Mr Parker described the amendment as “judgmental“. Ms Smith spoke against the “ludicrous” amendment rejecting that data is not already collected. Minister Hazzard described it as “inappropriate“.

Outcome: Ayes 26, Noes 62 – the Amendment was lost.

Commentary: A highly emotive debate where a lot of misinformation was presented. Claims were made that data is already collected (it is not) and there was a very strong push against this amendment as reflected in the votes.

Set 17: No gender selection

Moved by Tanya Davies, Member for Mulgoa

Description: to ban the practice of abortion for the sole purpose of gender selection.

Arguments for: Mrs Davies cited evidence of gender selection abortion occurring in Victoria and argued for the protection of our unborn girls.

Leslie Williams, Member for Port Macquarie moved an addition to the amendment: to include a review, within 12 months, to establish if gender selection abortions were taking place. This amendment also “notes that this House opposes termination being performed for the sole purpose of gender selection”.

Arguments for Mrs Williams amendment: Mrs Williams acknowledged the problem of gender selection internationally however fought for an amendment to establish whether this is happening in NSW, arguing that there was no evidence to support this was a practice in this state.

Arguments for Mrs Davies amendment: Mr Ray Williams commended Mrs Davies for “working hard to protect the unborn”. He described gender selection abortion as abhorrent. Mr Conolly supported the “well targeted” amendment by Mrs Davies but described Mrs Williams’ as “a last-minute afterthought” without legislative merit.

I will strongly support the amendment moved by the member for Mulgoa because we need to send a very clear message to the community, and those people who practice sex selection, that this is not acceptable and it will not be tolerated. The killing of an unborn baby because she is a female is disgraceful, it is reprehensible and it goes against everything we on this side stand for.

Mr Anthony Roberts, Member for Lane Cove

Arguments for Mrs Williams amendment: Minister Speakman stated “Given the choices before the House I think the better way to go is to have this study by the Secretary of Health and get an idea of what is happening in New South Wales and then make an informed policy response”. Minister Hazzard supported the study which his portfolio will have carriage of.

Arguments against amendments: Ms Leong described them as “alarmist and unnecessary” and a misrepresentation of the facts.

Arguments for both amendments: Mr Ward supported both. He stated that he would be supporting the bill because he believes in placing into legislation the 1971 Levine decision. He described Ms Williams’ amendment as strengthening Mrs Davies’ amendment.

The amendment of the member for Mulgoa is a statement of principle, putting into legislation that gender selection is prohibited …. At least this is a clear signal to the medical boards that a doctor who knows about and reports gender selection will not be reprimanded, as was Dr Hobart in Victoria. This is an opportunity to send a strong signal. Yes, we can make further amendments at a later time and conduct studies but … In the end, if one fetus is aborted based on gender selection that is wrong.

Stephen Bali, Member for Blacktown

Outcome on amendment moved by Mrs Williams: Amendment agreed to “on the voices”, therefore no division was required.

Outcome on amendment, now amended to include Mrs Williams changes, moved originally by Mrs Davies: Ayes 59, Noes 31 – the Amendment passed

Commentary: This was a very protracted and complicated debate which was revisited in the upper house.

Set 18: Prohibition of the sale of tissue removed in the performance of an abortion

Attempted to be moved by Tanya Davies, Member for Mulgoa

Ruled out of order by the Chair because it was out of scope of the long title of the bill and not relevant to the subject matter of the bill

Outcome: neither debated nor voted on

Commentary: This amendment was redrafted into a negotiated “acceptable” format and presented a few weeks later in the upper house.

At the end of the debate on amendments, the lower house voted on the bill as amended. Ayes 59, Noes 31 – the Bill passed with amendment and was sent to the upper house for debate.