New South Wales
Abortion Law Reform Act 2019 No. 11
What follows are the parts of an abortion law that pertain to protection of freedom of conscience. The law was obviously modelled on Queensland's Termination of Pregnancy Act 2018.
The law permits abortion up to 22 weeks gestation for any reason; no medical indications are required (Section 5). Abortion after 22 weeks gestation may be performed for any reason that two specialist practitioners find sufficient, including current and future "social circumstances." (Paragraph 6(3)b).
The law requires disclosure of objections to abortion by a practitioner when asked by someone (not necessarily a patient) to perform or assist in the performance of an abortion on someone else [(9(1)a(i) and (ii)], to make a decision about whether an abortion should be provided for someone else who is over 22 weeks pregnant [(9(1)a(iii)], or to advise about the performance of an abortion on someone else [(9(1)a(iv)].
When a woman up to 22 weeks pregnant wants an abortion or advice about an abortion [i.e., under 9(1)a(i) or (ii)], an objecting practitioner is required to disclose his objection [9(2)] explain how she can contact a non-objecting practitioner [9(3)a], or transfer the care of the patient to a practitioner willing to provide an abortion, or to an agency (health service provider) where an abortion can be provided [9(3)b].
However, if the woman is over 22 weeks pregnant, a practitioner is obliged to disclose objections to abortion but, if not convinced that the abortion should be performed, is not obliged to facilitate the abortion by explaining how she can contact a non-objecting practitioner or by a transfer of care to a willing colleague. That is because section 9(3) makes no reference to 9(1)a(iii).
Practitioners who object to abortion in principle and those who object in particular cases are often unwilling to facilitate the procedure by referral, arranging transfers of care or other means because they believe that this makes them parties to or complicit in an immoral act. Thus, the provision for conscientious objection in the bill actually suppresses the exercise of freedom of conscience by these practitioners with respect to abortions up to 22 weeks gestation.
On this point Queensland's Termination of Pregnancy Act, while it also suppresses the exercise of freedom of conscience by physicians who object to referral for abortion, at least does so consistently from conception to birth.
It is possible that the wording of this provision has been been muddled in New South Wales either in an attempt to put an end to the idea that only women can become pregnant, or to avoid the possibility that abortion might not be available to a woman who believes that she is a man, or who believes that she is neither a woman nor a man, but who becomes pregnant.
In any case, New South Wales is the first jurisdiction to make the exercise of freedom of conscience in relation to abortion conditional upon the gestational age of an embryo or foetus. A physician will be free to fully exercise freedom of conscience at 22 weeks plus one day, but not at 22 weeks minus one day. The inexact calculation of gestational age contributes further to the arbitrariness of this restriction of fundamental human freedom.
9. Registered health practitioner with conscientious objection
(1) This section applies if—
(a) a person (the first person) asks a registered health practitioner to—
(i) perform a termination on another person, or
(ii) assist in the performance of a termination on another person, or
(iii) make a decision under section 6 whether a termination on another person should be performed, or
(iv) advise the first person about the performance of a termination on another person, and
(b) the practitioner has a conscientious objection to the performance of the termination.
(2) The registered health practitioner must, as soon as practicable after the first person makes the request, disclose the practitioner's conscientious objection to the first person.
(3) If the request by a person is for the registered health practitioner (the first practitioner) to perform a termination on the person, or to advise the person about the performance of a termination on the person, the practitioner must, without delay—
(a) give information to the person on how to locate or contact a medical practitioner who, in the first practitioner’s reasonable belief, does not have a conscientious objection to the performance of the termination, or
(b) transfer the person's care to—
(i) another registered health practitioner who, in the first practitioner's reasonable belief, can provide the requested service and does not have a conscientious objection to the performance of the termination, or
(ii) a health service provider at which, in the first practitioner's reasonable belief, the requested service can be provided by another registered health practitioner who does not have a conscientious objection to the performance of the termination.
(4) For the purposes of subsection (3)(a), the first practitioner is taken to have complied with the practitioner’s obligations under that paragraph if the practitioner gives the person information approved by the Secretary of the Ministry of Health for the purposes of that paragraph.
Note: The information to be approved by the Secretary is to consist of contact details for a NSW Government service that provides information about a range of health services and resources, including information about medical practitioners who do not have a conscientious objection to the performance of terminations.
(5) This section does not limit any duty owed by a registered health practitioner to provide a service in an emergency.