Abortion Law Reform Act – Upper House Amendments Part 1

The (Temporary) Chair of the committee, Hon Shayne Mallard introduced the first session on amendments by saying:

We are considering a highly complicated set of amendments.  We will take out time and proceed cautiously to ensure that we are dealing with the amendments appropriately and in order.

This blog will give you a comprehensive overview of the first half of the amendments debated in the house of review.  Over two dozen sets of amendments were proposed in total in the upper house, representing hundreds of individual amendments.  The House of Review took their job seriously and deliberately in this debate.

The Hon Greg Donnelly MLC, fought hard both inside and outside the Parliament during the debate.

Set 1: Change the name to Abortion Law Reform Act 2019

Moved by Hon Taylor Martin MLC

Description:  Change the name of the bill from “Reproductive Healthcare” to “Abortion Law”.

Arguments for:  Hon Martin stated that this better reflected the substance of the bill. 

I propose we call a spade a spade.  This bill is about abortion, and only abortion, and that is what we should call the proposed Act.

Hon Taylor Martin MLC

Hon Trevor Khan did not oppose the change and encouraged “all members to support is so that we can move on”.  Rev Hon Fred Nile strongly supported the change pointing out that the original title is misleading.  Hon Penny Sharpe made a point to not oppose the amendment but took the opportunity to remind the house that in her opinion the bill “deals with one area of reproductive health, and that is abortion”.  Hon Greg Donnelly put his support on the record and reminded the house to be respectful in this debate (which was a pointed reference to Ms Boyd’s claim that this amendment was being made in bad faith).  Hon Matthew Mason-Cox claimed that capturing the real essence of the bill in the title sent “an important signal”.

The Shooters, Fishers and Farmers Party supports the amendment.  The name of the bill has irked me from the beginning.  It is a tactic that the Government is using to try to sweep it under the rug, if not under the Legislative Council.

Hon Robert Borsak MLC

Arguments against:  Ms Abigail Boyd opposed on behalf of the Greens claiming that the amendment was “unnecessary and made in bad faith”.  Mr David Shoebridge reiterated these concerns and described the amendment as “grossly unnecessary”.

Outcome:  Ayes 33, Noes 7 – the Amendment passed.

Commentary:  This amendment set the tone for the debate in the upper house. With the Greens and the Animal Justice party opposing amendments while a core group of cross-party members attempted to work together to pass amendments they could all agree with.

Set 2:  Change to Commencement

Moved by:  Hon Courtney Houssos MLC

Description:  Change the start date of the bill until it is proclaimed, enabling the legal and administrative frameworks to be put in place prior to the bill coming into effect.  This is in line with standard parliamentary practice.

Arguments for:  Hon Courtney Houssos argued that this would allow a period of transition to take place where appropriate regulations and policies can be developed.  Rev Hon Fred Nile supported what he described as a practical amendment. Hon Matthew Mason-Cox argued the need for the delay especially on the grounds of medical practitioners having the opportunity to adjust to the changes.  He described this as good – and standard- parliamentary practice.

This is the first time in which pregnancy termination is going to be statutorily regulated in the State of New South Wales—the first time in the history of this State. It is therefore utterly imperative that we ensure that how it is going to operate in practice is as clear and as unambiguous as possible. Up to this point we have had the issue of the common law judgements read in conjunction with the provisions within the Crimes Act to provide for a framework in which pregnancy termination takes place in New South Wales in a lawful fashion. This is different. This is a statutory framework and, as I have said to many people, this is going to regulate the practice of abortion in this State as far as one can see into the future and beyond. We should be very clear that the matter of abortion regulation in this State is not going to be returned to any time soon by this Parliament for years and perhaps decades. We therefore need to spend time on this.

Hon Greg Donnelly MLC

Arguments against:  Hon Penny Sharpe argued that the guidelines are already largely in place and that this “is another delaying tactic to try to stop women from being able to make these decisions free from the threat of jail”.  Ms Abigail Boyd agreed claiming that any delay causes “further harm” to women.

Outcome:  Ayes 15, Noes 25 – the Amendment was lost.

Commentary:  This amendment exposed the fact that abortions are already happening legally and that many parliamentarians actually believed that very little would change (in terms of numbers of abortions) as a result of this legislation passing.

Set 3:  Insert the term “woman” into the bill

Moved by Hon Natasha Maclaren-Jones

Description:  replace all references to “person” with “woman” as well as “themselves” and “they” with “her” and “herself” in relation to pregnancy in the bill.  This occurred in 38 places in the bill.

… the bill does not place a woman as the key stakeholder of the legislation; it is based on the premise that gender is ambiguous and that any sex and/or gender can have a baby. However, that is simply unscientific as only those who are biologically a woman can become pregnant. In essence, it is a woman who will be subject to this bill and the one who will be carrying the child. Regardless of whether someone identifies as a different gender, biology is empirical.

Hon Natasha Maclaren-Jones MLC

Arguments for:  Hon Greg Donnelly supported the amendment on the “human biological fact that women, and only women, can become pregnant, gestate a human being within their own body and give birth to a child”.

The Shooters, Fishers and Farmers Party support this amendment. An abortion bill is no place for gender ideology. If people want to make such moves they should do so in a separate bill.

Hon Mark Banasiak MLC

Hon Scott Farlow supported the amendment saying this was in line with practice guidelines.  Rev Hon Fred Nile supported the amendment claiming the current wording is an insult to women.   (He was right).  Hon Niall Blair so “no harm in referring to women” and was quite dismissive of the whole debate.  Hon Matthew Mason-Cox supported the “undeniable, incontrovertible … truth” behind the amendment.

Arguments against:  Hon Penny Sharpe argued that the original form is “fully inclusive” and that while a “vast majority of people who become pregnant and have unwanted pregnancies are women”, transgender individuals and non-binary people should also be included.  Ms Emma Hurst was ‘surprised’ that the word person was so controversial.  Hon Walt Secord claimed “this whole debate is a furphy” in his opposition.  Hon Adam Searle argued that the amendment could “create a barrier to persons seeking medical treatment, persons who may be biologically female but may identify in a different way”.

I take issue with the argument that this amendment does no harm. In fact, it is quite the opposite. Queer, transgender and intersex people can have children. This amendment would consciously write them out of this legislation and place them again on the margins. They already feel so much on the margins, constantly the subject of discrimination and marginalisation in society. Anybody who identifies as queer, transgender or intersex will hear this debate and the attempt to write them out of the law and place them yet again on the margins. To suggest that does no harm misunderstands where this amendment is coming from. This amendment will cause harm. It will continue that legal political marginalisation of queer, transgender and intersex people. We should be inclusive in this debate and in this law and we should not further that harm.

Mr David Shoebridge, Greens MLC

Outcome:  Ayes 18, Noes 23, the Amendment was lost.

Set 4:  To move the definition of late-term to 20 weeks, rather than 22 weeks

Moved by  Hon Matthew Mason-Cox

Description:  To change the distinction betweenterminations from 22 weeks down to 20 weeks, where terminations from 20 weeks would then be subjected to more restrictions.

Arguments for:  Hon Matthew Mason-Cox argued for an earlier point of division based on advances in medical science, especially around the age of viability.  He also used the argument of the potential for pain at the halfway point of pregnancy.  Hon Natasha Maclaren-Jones spoke on the pain felt by a child and the community outrage around late-term abortions.

Hon Mark Banasiak directed his comments at the arguments being used regarding regional disadvantage:

My party supports the amendments. I will not get into an argy‑bargy and debate about who quoted more studies but I will pick up on what some of the opponents to these amendments are talking about: the difficulties in regional and rural health care. Why are we going to lower the standards of our bill to meet the standards of health care in the regions? Why do we not raise the standards of health care in the regions so the bill matches them? That is the real issue. We have seriously underinvested in health care in the regions and now we are going to lower the standards of a bill to match our underinvestment? Let us raise the investment to meet the highest standards of the bill.

Hon Mark Banasiak, MLC

Hon Greg Donnelly gave a voice to the unborn:

The deliberate termination of a pregnancy can never be healthy for the unborn. That is a clear, unambiguous statement. The intention of a deliberate termination of a pregnancy is to extinguish the life of the unborn. That is the outcome and we should be frank enough to say that, acknowledge it and accept the consequences of it. We have had many comments—and I am sure we will receive others—about matters of autonomy, with respect to reproductive rights, and whether that autonomy ought or ought not be delineated in terms of being able to obtain an abortion up to a limit and beyond a limit. 

Hon Greg Donnelly

Hon Damien Tudehope urged “members of this House to consider that it is unreasonable not to want better care for women by not in fact moving the time that you would give them that care from 22 weeks to 20 weeks”.    Hon Matthew Mason-Cox’s arguments included pointing out that the Births, Deaths and Marriages Act issues birth certificates at 20 weeks for stillborn children.  He also highlighted the current healthcare guidelines in NSW around abortion which reference 20 weeks gestation, not 22 weeks.

I do not have any medical expertise but I have actually carried two babies to full term and I hope that that experience might count for something. This amendment is really about defining what is a late-term abortion. At what point do we say it is early or it is late? Having had two pregnancies, I can tell you that 20 weeks pregnant is not early. There is full awareness. There is a lot of movement before the 20 weeks but as somebody who has had that experience, the idea that an abortion beyond 20 weeks could be defined as early actually appals me.

Hon Catherine Cussack, MLC

Hon Courtney Houssos described the survival of babies from 21 weeks and her own experiences of feeling her daughter move at this stage of her pregnancy.  She dismissed the arguments around fetal abnormalities because the amendment does not stop abortions to birth – it simply invited closer medical supervision to be conducted from 20 weeks.  Rev Fred Hon Nile used his contribution to underline his central point:  “Termination is a nice word to use in this debate … but it hides the fact that it is the death of a baby”.

Arguments against:  Hon Trevor Khan opposed based, in part, on the evidence of the President of RANZCOG and the potential that such an amendment may pressure a woman to make a rushed decision.  Ms Abigail Boyd rejected any form of gestational limits as unnecessary.  Hon Wes Fang claimed to support the amendment after seeking advice from RANZCOG and the AMA.  Hon Adam Searle expressed concerns that any limitations should be imposed at any stage.  Hon Emma Hurst did not wish to impost “additional requirements”, while Mr David Shoebridge criticised the “men…without medical training” advocating for the amendment, implying that they should not have a parliamentary opinion on this subject.  Hon Penny Sharpe once again argued that women’s decisions should be respected – implying any change to this bill is an affront to women’s rights.

Outcome:  Ayes 15, Noes 26 – the Amendment was lost.

Set 5: Informed Consent

Moved by Hon Niall Blair

Description:  This amendment added the ability for a legally authorised person to consent to a termination on the pregnant woman’s behalf if she lacks capacity. 

Arguments for:  Hon Niall Blair introduced these amendments to add to those agreed to in the lower house.  They cover who can consent on behalf of a woman if she is unconscious, is too young or has an intellectual disability which impairs her ability to medically consent.  Hon Walt Searle accused those against the amendment as seeking to restrict access to abortion.  Hon Penny Sharpe described it as an “important addition” to “tidy up” the amendment made in the lower house.

Arguments against:  Hon Damien Tudehope argued that this amendment deviates from the processes undertaken by the Guardianship Tribunal.  He indicated that this amendment would make it easier to obtain consent on behalf of someone because it provides a way around the Tribunal process.

Ms Abigail Boyd took offence at this codification, claiming that it “panders to those who seek to take away reproductive healthcare decisions from patients and their doctors”.

Hon Matthew Mason-Cox raised concerns that this amendment had been introduced late and was, as a consequence, ill thought-out.  He expressed concerns about the unintended consequences in relation to guardianship. 

Outcome:  Amendment agreed to on the voices – no vote was called.

Set 6:  Late-term abortions only performed to save the life of the mother or the life of another baby

Moved by Hon Scott Farlow

Description:  this amendment introduced strict conditions for post-22 week abortions where only two reasons would enable a termination to be performed:  1.  To save the life of the mother; and/or 2. To save the life of another baby (eg twin sibling).  This judgement could only be made by a “specialist medical practitioner”.

Arguments for:  Hon Scott Farlow described this amendment as giving “the fullest possible protection to the lives of all those concerned in a late-term pregnancy: the unborn child or children as well as their mother”.

At the conclusion of Hon Scott Farlow’s introduction of his amendment, Hon Rod Roberts was given leave to introduce his amendment which related to the same area of the bill.  Both amendments were then considered at the same time:

Set 7:  Panel of specialist medical practitioners to assess terminations post-22 weeks

Moved by  Hon Rod Roberts

Description:  A panel of specialist medical practitioners established as an advisory panel who will consider whether a post-22 week termination is justified.

Arguments for:  Hon Rod Roberts described the “purpose of a termination advisory panel is to have a minimum of six specialist medical practitioners available and on-call on a rotating roster to provide transparent, independent and expert opinion in a high-pressure emergency situation, to enable doctors to be supported in their decision-making and to ensure that a woman has the best medical available to her”.

Hon Greg Donnelly took the opportunity to remind the chamber what this bill was actually about:

The ultimate decision to terminate means that the life of the unborn is extinguished, finished, over, and that human being does not take a breath. Surely if we are considering the weighty decision about whether that unborn life should be terminated, there should be a very clear focus on the extremely significant circumstances around which a decision would be taken to terminate the life of that unborn human being.

Hon Greg Donnelly MLC

Hon Matthew Mason-Cox claimed they assisted in addressing valid community concerns around late-term abortions.  Hon Courtney Houssos agreed and acknowledged that the voices of the pro-life vigil could be heard inside the chamber that night, demonstrating tangible community concern on what was being debated.  Rev Hon Fred Nile supported on the basis of attempting to save and protect the lives on as many unborn as possible.

The amendments moved by the Hon Scott Farlow say that after 5½ months, or 22 weeks, we are a State which says there are limits on termination of pregnancy. There are limits. We do not just leave it. As a society, we say that the life of the mother or another unborn child is where we would go and no further. I urge the House to accept these amendments.

Hon Damien Tudehope

Arguments against:  Hon Trevor Khan saw both sets of amendments as lessening and restricting care available to women.  Ms Abigail Boyd claimed the amendments made her “sad”.  She claimed that they would stop women making their own decisions.  Hon Adam Searle opposed both sets because they introduce new barriers and complications.  Hon Penny Sharpe went further, claiming they “fundamentally undermine the situation for women”.  Mr David Shoebridge claimed these amendments would “actually take us back to the 1950s”.

Outcome on Set 6: Life of the Mother only:  Ayes 15, Noes 26 – the Amendment was lost.

Outcome on Set 7: Panel of Specialists involved:  Ayes 15, Noes 26 – the Amendment was also lost

Set 8:  Comprehensive care of a child born alive after termination

Moved by: Rev Hon Fred Nile

Description:  All necessary steps must be taken to ensure full neo natal care is given to a child born alive after an attempted termination.  Furthermore, the amendment ensured that the child would be provided with protection under the care of the state and, if they subsequently died within 28 days after birth, their death would be reportable to the Coroner.

Arguments for:  Rev Hon Fred Nile referenced the life of Gianna Jessen who was rescued after being born alive after a failed abortion attempt.  He described the treatment of babies born alive who are left to die as “horrific and unworthy of any civilised society”.  Hon Greg Donnelly defended the amendment reminding the house that babies are born alive on a reasonably regular basis and urging for specific protections to be put in place.  Hon Scott Farlow commended the amendments which placed value on the baby as a human being.  Hon Mark Banasiak supported the amendment describing the arguments against as drawing a “long bow”.   Hon Damien Tudehope gave a comprehensive overview of each part of the amendment, concluding that is was “hard to resist this amendment”.

Arguments against:  Hon Trevor Khan took offence that medical practitioners were being accused of “dump[ing] babies in bins”.  He also claimed, in the context of his contribution, that “Politicians in the Legislative Council are trying to make laws that are contrary to good clinical practice”.  Ms Abigail Boyd again took offence at this amendment and challenged the misinformation campaign she claimed was occurring around “foetuses in bins”:  “This is a completely unnecessary amendment and it is incredibly cruel because it assumes that in situations where people have found themselves forced to terminate, they also somehow lack compassion or any due regard for the fetus. That is incredibly offensive. It is completely inappropriate” she said.

Hon Niall Blair stated that he would be proposing an amendment on babies born alive which was superior (in his opinion) to Rev Hon Fred Nile’s.  This would be drafted overnight and not yet available for circulation.

Hon Wes Fang claimed this was not a sensible amendment and made the assumption that it is likely that the baby is incompatible with life anyway due to a genetic abnormality– essentially he was very dismissive of the value of the lives of babies with disability. Hon Adam Searle described them as unnecessary and dangerous.  Mr David Shoebridge described the amendment as an attempt to “shame pregnant people and the doctors who provide them with” abortions.  Hon Penny Sharpe felt this amendment was unnecessary.

The debate was adjourned prior to the amendment being voted on.  When members returned the following day an amendment had been negotiated on the same topic with Hon Niall Blair.  This amendment was significantly weaker in substance.  Rev Hon Fred Nile’s amendment was therefore voted on the following day. 

Set 9:  Care for a child born alive after termination

Moved by Hon Niall Blair

Description:  this amendment was a watered down version of Rev Nile’s.  It describes that a registered health practitioner has a duty to provide medical care and treatment to a child born alive as a result of a termination in a way which is no different from the duty owed to provide care to any other child presenting with similar injuries and a similar gestation.

Arguments for:  Hon Niall Bliar presented this amendment as a clarification of current practice which he asserted requires “that any child born with signs of life as result of termination of pregnancy be afforded the right of dignity, maintenance of privacy and physical comfort whilst signs of life exist”.

Hon Mark Latham welcomed the consensus and defended Rev Hon Fred Nile’s amendment from the previous day as arising from good faith.

A society is judged by its compassion especially towards the defenceless and vulnerable. A baby is the most vulnerable and defenceless person in our community. They have not the strength to fight back when their lives are in danger. Yet some possess the strength against all the odds to survive the deliberate attempt to end their lives. One in 10 children survive the deliberate attempt to end their lives in abortion. We certainly have the means to eradicate the indomitable will to survive in an infant child. We also have the means to acknowledge it, respect it and cherish it.

I have chosen to acknowledge and cherish life. I cherish the safety and wellbeing of children above all things. The thought of not rendering medical assistance to a child who has survived the trauma of abortion is, to me, abhorrent behaviour and can never be acceptable. I ask my colleagues to try to picture an infant child outside of the womb alive—just like we are alive in this place right now. Imagine this beautiful innocent child breathing air for the first time. The only difference is that we, as adults, have the ability to defend ourselves. We have a voice to object to injury, to violence and to death. Let us be the voice for the defenceless.

Hon Lou Amato

Hon Courtney Houssos highlighted: “[w]e are dealing with incredibly vulnerable, premature babies who require health care that I cannot imagine being able to deliver. It is very difficult but I do reiterate my point: if we are going to be providing a clear framework for the way that abortion will operate in this State, then it is only appropriate that that framework deals with the question of babies being born alive.”  Hon Greg Donnelly strongly supported all moves to protect the vulnerable babies born alive.  Hon Natasha Maclaren-Jones described both sets of amendments on caring for babies born alive as going “a long way to improving the bill”, while Hon Taylor Martin described them as “necessary to remove ambiguity”.

Arguments against:  Ms Abigail Boyd did not support the amendment describing it as a “slippery slope to go down” and unnecessary.  Hon Penny Sharpe stated her preference to “not go down the path of codification” but suggested she would only oppose Rev Fred Nile’s amendment.  Hon Emma Hurst described the amendment as unnecessary and as being “a catalyst for more misinformation”.  Mr David Shoebridge detailed a series of concerns on behalf of the Greens, including that it is “redundant”, and interferes with doctor-patient decision-making.

Outcome: Set 8 moved by Rev Hon Fred Nile on comprehensive care for babies born alive:  Ayes 15, Noes 16 – the Amendment was lost.

Outcome: Set 9 moved by Hon Niall Blair on care for babies born alive:  Ayes 35, Noes 6 – the Amendment passed.

Set 10:  Counselling must be offered prior to an abortion being performed

Moved by Hon Courtney Houssos

Description:  Prior to performing an abortion, a medical practitioner must ensure that the person has been offered counselling about abortion and must ensure that they have been given information about non-directive pregnancy support counselling services.

Arguments for:  Hon Courtney Houssos proposed this amendment describing it as “an opportunity to give support to women as they are making this decision.  It is an information-giving exercise”.  Hon Lou Amato detailed the effects of abortion on women including the increased risk of suicide and substance abuse.

Arguments against:  Hon Trevor Khan stated that while he would support counselling in later stages, at early states he felt this interfered with the normal doctor-patient relationship.

At this point, Hon Niall Blair moved his amendment:

Set 11: Counselling for late term abortions

Moved by Hon Niall Blair

Description:  Prior to performing an abortion after 22 weeks, a specialist medical practitioner must provide all necessary information to the woman about access to counselling.

Arguments for:  Hon Niall Blair claimed this amendment codified current practice.  He was supported later in the debate by Hon Ben Franklin who, while disputing the link between suicide ideation and abortion, supported the codification of current practice around late term abortion.

Arguments for both:  Hon Greg Donnelly spoke on the issue of coercion and domestic violence in relation to abortion, while Hon Natasha Maclaren-Jones highlighted the need to focus on the care of patients which can only be fully realised through information being professinally provided. Rev Hon Fred Nile and Hon Scott Farlow both supported the offer of counselling as did Hon Matthew Mason-Cox who described them as being supportive of women in a difficult situation. 

Arguments against both:  Ms Abigail Boyd, not surprisingly, opposed both sets of amendments on counselling claiming that they were “not pro-woman; it is pro-control.  Both of these amendments will just create another barrier and potential further delays for those seeking” an abortion.  Hon Emma Hurst also opposed them, calling them “anti-choice”.  Hon Anthony D’Adam saw no need to mandate counselling based on the opinion of pro-choice doctor Dr Vijay Roach.  Hon Penny Sharpe saw the amendments as “fiddling around the edges” and getting in the middle of doctor-patient relationships.  Hon Walt Secord described both sets as intrusions.  Mr David Shoebridge thought the amendments were “unfortunate” and even described the ones proposed by Hon Courtney Houssos as “inappropriate”.

Outcome on Set 10:  Counselling for all:  Ayes 15, Noes 26 – the Amendment was lost.

Outcome on Set 11: Counselling post-22 weeks:  Ayes 24, Noes 17 – the Amendment passed.

This represents approximately the half-way point for the debate on amendments in the upper house.  The next blog will provide a comprehensive look at the remaining debate in the upper house.