The New South Wales Parliament’s lower house voted late last year in favour of legislation that, for the purpose of grievous bodily harm, recognises the personhood of foetuses after a sufficient stage of pregnancy. Despite explicit exclusions for medical procedures, extreme controversy has surrounded the law, which opponents believe could lead to the curtailing of abortion rights.
That the bill was put to a conscience vote and was subsequently voted against by several government ministers, underscoring the fact that it is particularly contentious. Unfortunately, however, the capacity for constructive discourse on the issue has been obfuscated by some of the more draconian opposition to the law.
It is disappointingly ironic that those who vigorously propound the fundamental importance of s18C of the Racial Discrimination Act share no such passion where religion is concerned. Rather than outrage, fallacious claims that the law reflects the Church’s wider misogynistic agenda are met with apathy. It was in this very publication that the headline, “Church F**** Women”, expediently conflated Christian Democrat Fred Nile with the entire Church, while likewise illustrating abject disregard for any nuance on the issue of foetal status beyond the simplistic dichotomy of standing for, or against, women.
However, what is most obscuring about this rhetoric is that it misses the fundamental basis of the law. As Chris Spence MP intimated in his second reading speech, “The bill does not, nor does it intend to, have any bearing on a woman’s right to choose.” Where attention ought to be directed, therefore, is to the question of whether the legislating has been unambiguous in effecting the intention enunciated by Spence.
Firstly, section 8A(4)(a) of the bill provides that it does not apply to “anything done in the course of a medical procedure”. Moreover, unlike Nile’s proposal, the bill that passed through the lower house does not recognise a foetus’s personhood from conception. Rather, it explicitly stipulates the provisions only enter into effect after 20 weeks’ gestation, or alternatively, a body mass of at least 400 grams. Under the status quo, only an exceptionally small portion of abortions are performed beyond 20 weeks gestation. In Victoria, this number is less than one per cent.
Thus, prima facie, even taking the law at its most extreme outcome, the amount of abortions that would be affected would be exceedingly low. Yet, as previously stated, given the explicitness of the provisions in the bill that passed the lower house, it is not clearly conceivable how this outcome will eventuate, at least without further reform.
I recognise, however, that the NSW Bar Association has voiced concerns that there could be wider implications on late-term abortions, notwithstanding the exception for medical procedures. Their opposition is essentially predicated on the potentiality of a knock-on effect whereby, subsequent to passing this law, there would then be a continual pressure to justify permitting harm, let alone the destruction, of a legally acknowledged “person”. Although, given that this argument relies on the difficulty of resisting such consequent reform – more so than any other glaring technicality in the bill’s present manifestation – the Bar Association concedes its argument may not be sufficient if there was not already adequate protection. It is confident, however, that present legislation relating to grievous bodily harm provides satisfactory coverage for damage to foetuses.
Hence, while I do not believe that this law poses the cataclysmic threat that some have charged it with – nor do I believe that it is remotely accurate to label it a thinly veiled attempt to criminalise abortion – I accept that given the dispute and adequacy of existing law, it is not entirely necessary.