NSW Reproductive Health Care Reform Bill 2019

My submission to the parliamentary committee

Dr Kamala Emanuel

11 August 2019

As a NSW abortion provider and an abortion rights advocate, and as a woman who has undergone abortion in NSW, I support the Reproductive Health Care Reform Bill.

Even with the best access to sex education, contraception and emergency contraception (which NSW doesn't have), there is no pro-active way for people engaged in potentially reproductive sex but not prepared for parenthood to guarantee they won't become pregnant. And sometimes, wanted, planned pregnancies become impossible to continue, whether for health reasons or any number of personal crises. Like contraception, miscarriage and childbirth, abortion is a part of reproductive life; between a fifth and a quarter of women and people with a uterus
¹ in Australia have undergone abortion. This legislation offers the chance to recognise that, remove the stigma of criminalisation and treat the women and pregnant people seeking abortion care with compassion, dignity and respect.

It is my belief that the restrictions in this bill are not warranted. I believe the strongest message of support for women making decisions about their healthcare would be simply to decriminalise abortion, and reaffirm the principle that health care practitioners with conscientious opposition to abortion should ensure they carry out their duty not to allow their personal views interfere with their patients' right to care. We don't need specific legislation to ensure that only doctors perform vasectomy or heart surgery or obstetric care, and it would be better not to have legislation singling out abortion - where it can be performed, at what gestations it can be performed, or who can perform it. Nor do we need legislation to ensure doctors consider the need for counselling, any more than we need legislation to ensure doctors consider the need for counselling in any other situation where it may be needed: that is what training, registration, ongoing education and professional standards are for.

Finally, regarding the restrictions in the bill, while abortion requests after 22 weeks are infrequent, several studies^2,3 have identified many factors that can lead to delays in pregnancy diagnosis, decision-making, requesting and obtaining abortion. Some of these include the diagnosis of problems that can only be identified later in pregnancy. Others include irregular periods, periods continuing during pregnancy, not suspecting pregnancy because contraception has been used, fear of doing a pregnancy test because of uncertainty about what to do if pregnant, fears of parental reaction to pregnancy, relationship conflict or change, coercion to continue the pregnancy, distance to abortion services, difficulties finding services that can provide later abortion, and costs of abortion (which can lead to substantial delays, owing to the way costs escalate as the pregnancy progresses). The requirement for two specialists to agree that abortion is necessary after 22 weeks can only add to the delays and stress involved. At the very least, if parliament is going to enact such restrictions, it should enact corresponding legislation to ensure no additional cost or delays are incurred, recognising that for safe abortion, time is of the essence.

Despite my concerns about the restrictions included in the bill, I believe it will be better for the women and people with a uterus of NSW to have this bill passed, than not.

The prospect of high quality abortion care no longer being refused in the state's public hospitals - to the extent that this has been because of the existing law - is good for public health and equity. As you would know, lawful abortion is performed in free-standing clinics across the state - but at a cost that can be outside the means of disadvantaged women and pregnant people to afford; and in metropolitan locations that can entail burdensome travel requirements for women of rural and regional communities. Early medical abortion prescribed by GPs has the potential to fill some of that gap, but surgical abortion will continue to be needed, and should be available in public hospitals. I hope that removal of abortion from the crimes act, recognition that abortion up to 22 weeks is a matter for a woman to decide, and affirmation that those who refuse care on conscience grounds have a duty to assist their patients to access the safe abortion care they seek, will pave the way for safe abortion to become accessible in public hospitals as a matter of course, as it is in numerous countries with a strong public health system.

For this reason, despite the inclusion of what I consider to be unnecessary restrictions, I hope the thrust of the bill is passed.

In the last section of my submission, I wish to draw your attention to my concerns about sections 14 and 15 of the bill, those that relate to gender-biased sex selection. I believe it would be preferable for these sections to be removed.

What I have noticed as an observer of public discussion of abortion is that abortion opponents argue against sex selection abortion in order to establish a precedent that allows the state to determine that certain kinds of abortion are not permissible. If the state can override the decision of the pregnant woman in one instance, it undermines the central rights contention that the decision to continue or terminate a pregnancy belongs to the pregnant person.

Very often, arguments will be couched in feminist terms. Whether crudely⁴ or subtly⁵, they seek to use women-centred language of opposition to discrimination to appear to take a feminist high ground - in a completely anti-feminist attempt to undermine support for women's and pregnant people's autonomy. Their arguments only work if we accept the premise that the foetus with XX chromosomes or with ultrasonic evidence of female reproductive organs is a person with a right to life, a girl being killed because of her gender.⁶ Son preference is objectionable and discrimination against girls is a problem. But female embryos don't have a right to life that trumps the right of the pregnant woman to determine whether or not to continue that pregnancy. Rather than proving that female embryos have a right to be born, opponents of all abortion try to mobilise legitimate indignation and anger at discrimination against girls and women, in an attempt to get it to spill over into opposition to abortion rights.

Gender-biased sex selection⁷ is a problem. But it's not the problem opponents of all abortion would have us think. It is a manifestation of the same devaluing of girls and women that underpins many aspects of discrimination and oppression of women and non-binary people. In the societies where it is documented, the combination of influences on gender-biased sex selection usually includes deeply held values about the worth of sons over daughters, the role of sons providing for parents in their old age, women's relative exclusion from the paid workforce and lower pay where included, discriminatory inheritance patterns and (at least in parts of India) marriage customs such as the expectation brides' families will provide a dowry.

What this means is that if it is to be effectively confronted, the social context needs to be changed. Not surprisingly, measurable impacts on reversing son preference have been demonstrated by social interventions affecting the underlying factors. Economic security in old age (in the form of savings or pensions), women's participation in the workforce, changes to the rights and responsibilities of women in relation to their family of birth, and media campaigns promoting the value of daughters have all had an impact.⁸

One important finding reported in a UN interagency statement on tackling gender-biased sex selection⁹ was that educational programs that stimulate discussion and allow for participants to share their experiences and thoughts in relation to conflicting values are more empowering and effective than those based on judgemental criticism of "bad" behaviour.

There is some evidence of prenatal sex selection taking place in Australia, predominantly among women born overseas, most notably from India, China and South-East Asia.¹⁰ A 2018 study of births in Victoria found that in these populations, the male/female ratio at birth is significantly above the biological norm of 105:100.

Banning abortion performed for sex selection is only likely to put obstacles in the way of women seeking care and support, and risks harming already marginalised women. Including a statement of opposition to sex-selection abortion in the legislation, without any reference to the structural changes that are needed to tackle it, is at best posturing that is unlikely to make a positive impact, and at worst, a tool for opponents of abortion to utilise to attempt to undermine the exercise of abortion rights - without regard for the positive work that needs to be done to confront son preference in a meaningful way.

I'm concerned that the inclusion of these sections will pave the way to arguments for banning abortion performed to enable sex selection, or to prevent women from undergoing blood tests or ultrasound examinations that may enable them to know about their pregnancy's chromosomal sex or reproductive anatomy. For healthcare providers in particular, the point at which a woman is making a decision to abort a pregnancy is not the point at which to refuse care or impose judgement. It is a point for promoting our patients' health and autonomy, including by the provision of safe abortion if that is the pregnant person's decision. We should reject attempts to impose limits on abortion, according to the reason for the abortion.

Of course we should try to identify and support women at risk of coercion into abortion, or facing harassment, violence or other kinds of pressure if they give birth to girls. We should support efforts, particularly efforts by young women of affected communities, to challenge and transform the culture of son preference.

We'll know we're succeeding when the sex ratio at birth returns to the biological norm - not by taking measures that undermine women's rights, but by implementing those with the capacity to enhance them.

A statement of opposition to gender-biased sex-selection, and restrictive measures that may be used to introduce, could paradoxically make the risks of vulnerability and coercion worse by driving it underground.

Gender-biased sex-selection is a concern. But it is a concern that merits its own discussion - not in relation to abortion and abortion law reform, and not in an effort to undermine the overdue abortion rights of women and people with a uterus.

1I use the terms woman, person with a uterus and pregnant person in recognition that while most people capable of becoming pregnant are women, some pregnant people are trans men or non-binary people.

2https://onlinelibrary.wiley.com/doi/full/10.1363/4521013

3https://www.bpas.org/media/1202/second_trimester_abortions__ingham.pdf

4https://caldronpool.com/researchers-say-discrimination-against-women-starts-in-the-womb

5https://lozierinstitute.org/sex-selection-abortion-the-real-war-on-women/ (I guess it depends on your definition of subtle... but relative to (1) above, I'd say it counts.)

6In passing, I will point out that there is more to determination of sex than 2 combinations of sex chromosomes, and more to determination of gender than anatomical sex. But whatever marker is being used - genetic tests showing chromosomal sex, or ultrasound showing female reproductive anatomy - assuming that if born, the baby would be a girl, it's another step to say that as an embryo or foetus, they have the right to life.

7as distinct from abortion to avoid passing on sex-chromosome-linked diseases or conditions.

8https://apps.who.int/iris/bitstream/handle/10665/44577/9789241501460_eng.pdf

9https://apps.who.int/iris/bitstream/handle/10665/44577/9789241501460_eng.pdf

10https://academic.oup.com/ije/article/47/6/2025/5057663