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

Gender-biased sex selection and abortion rights

As an abortion provider and abortion rights advocate, I follow abortion news, which means sometimes links like this one¹, to an article decrying abortion for sex selection, appear in my inbox.

What I have noticed 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 contention of abortion rights activists that the decision to continue or terminate a pregnancy belongs to the pregnant person².

Very often, arguments will be couched in feminist terms. Whether crudely³ or subtly⁴, they seek to use feminist 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. In 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 even if, on the whole, embryos with XX chromosomes, or foetuses with female reproductive anatomy, would, if born, be girls, are they, in utero, girls with rights beyond the right of the pregnant person, rights that trump the right of the woman or pregnant person to determine whether or not to continue the pregnancy? Opponents of abortion don't (and can't) prove this - they just mobilise legitimate indignation and anger at discrimination against girls and women, in an attempt to get it to spill over into an attack on abortion rights.

Gender-biased sex selection⁵ 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 our oppression. 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 measures 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.⁶

One important finding reported in a UN interagency statement on tackling gender-biased sex selection⁷ 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 evidence of prenatal sex selection taking place in Australia, predominantly among women born overseas, most notably from India, China and South-East Asia.⁸ 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 and pregnant people seeking care and support, and risks harming already marginalised women.

The issues that should be of concern are not whether to ban 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.

What we should be concerned about (healthcare professionals and wider society alike) is 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.

1 https://caldronpool.com/researchers-say-discrimination-against-women-starts-in-the-womb. This one is particularly obnoxious, implying in its sub-heading that researchers who identified prenatal sex selection in a cohort of Australian women conclude that abortion is not beneficial to women, when that is, rather, the presupposition of the authors of the article and an opponent of abortion, nothing to do with the study, who they misleadingly quote.

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

3 E.g., https://caldronpool.com/researchers-say-discrimination-against-women-starts-in-the-womb

4 E.g., https://lozierinstitute.org/sex-selection-abortion-the-real-war-on-women

5 As distinct from abortion to avoid passing on sex-chromosome-linked diseases or conditions.

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

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

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

Dutton out

Sportsbet favours Labor to be elected to the federal seat of Dickson in the May 18 federal election. The seat is currently held by the minister for cruelty to refugees, Peter Dutton. Across Australia, people have had a gutful of the heartlessness.

The Refugee Action Collective held  a protest outside everyone's least-liked potato's electorate office on May 11, attracting a lot of support from passersby.

As RAC spokesperson Mark Gillespie pointed out, the fight for refugees' rights will be boosted by a defeat of Dutton, but it will be far from over, as the cruelty has bipartisan support. He announced a rally to be held on July 19, the 6th anniversary of Rudd (Labor) that asylum-seekers arriving by boat would "never, ever" be settled in Australia.

I had a few words to say. When women are forced to become refugees, they don't leave the patriarchy behind them. When the Nauru detention centre was being prepared, the head of it resigned, warning that women would nor be safe from sexual assault there. Scott Morrison and Peter Dutton are responsible for letting that cone to pass.

We won't stop till all the refugees are free.

Word art

Laser etch or charcoal sketch

Razor or quill

With words and skill

We craft

     Hammers

Leaning towards meaning

Like a phototroph to light

Or nailing it

     To shape reality.

Safe Access Zones, Free Speech and Abortion Rights

May 28th was the Global Day of Action for Women's Health. Around the world, the preceding week was punctuated by significant actions for abortion rights. The most significant was the resounding "Yes" vote in the May 25 Irish referendum on removing the ban on abortion from the constitution. This gave a shot in the arm to the campaign for abortion rights in the Six Counties of Northern Ireland, where the anti-abortion provisions of the UK's Offences Against the Persons Act of 1861 remain in force. Hundreds gathered in Belfast on May 28th to launch a campaign to push the UK government to lift the ban on abortion rights there. The same day, protesters in Brisbane rallied to push to overturn similar legislation in Queensland.

In NSW, May 24 was marked by the passage through the state's upper house of a bill to protect access to abortion clinics. It is due to be debated in the lower house next month.

If passed, the bill will introduce stiff penalties ($5500 fine or 6 months in gaol or both, for a first offence; $11000 or 12 months or both, for a second offence) for anyone harassing people entering medical clinics where abortions are performed. Similar penalties would apply to anyone interfering with or obstructing anyone trying to enter the clinic, anyone trying to talk or give literature about abortion to anyone entering the clinic (if it is likely to cause distress or anxiety), and anyone filming or recording anyone in the vicinity of the clinic without their consent.

The legislation is designed to create a 150m buffer zone around the clinics and clinic entrances, to allow anyone needing to access the clinics - patients, support people and staff - to do so in privacy and without intimidation or abuse from those opposed to abortion.

Tasmania, Victoria and the ACT all have similar legislation. There are moves to introduce protective legislation into WA, and the Queensland Law Reform Commission, due to report on modernising the state's abortion laws by the end of June, invited public comment on the issue of safe access zones among other issues.

In NSW, WA and Queensland, where there is no protective legislation, groups opposed to abortion regularly set up outside clinics to try to prevent abortion by intimidating or convincing patients to change their minds. They are especially active in the 40 days of Lent, observed by some Christian traditions. (For some reason ostensibly to do with following the person who said "Don't judge others, so you won't be judged," while other people are giving up chocolate, they give up minding their own business.) Outside a WA clinic this year, they were distributing information with links to an organisation based in the US, "And then there were none," that aims to end abortion "from the inside out," by convincing staff to stop providing services.

But some clinics are subjected to the harassment year round. MLC Penny Sharp, who co-sponsored the NSW bill, described the behaviour, which extends from displaying distressing images and attempting to hand unwanted literature to people, to sprinkling holy water on people, and calling people "murderer."

Even quiet prayer and polite greetings - in a context where it is clear that a judgement is being made against the decision to undergo abortion - has potential for harm. At best it represents a form of observation that poses a threat to women's right to access reproductive healthcare in privacy and dignity. While many people undergoing abortion find the decision straightforward, for others, it is difficult and painful and the distress of the decision and procedure can be compounded by the scrutiny and judgement of others. In any case, it is not a form of scrutiny, stigmatisation, harassment or interference consistently meted out to men, or indeed, to anyone for any other kind of healthcare.

We don't accept it for anything else, and we shouldn't accept it for abortion care.

Opponents of the legislation (in the NSW upper house, predictably, Fred Nile) claim the law will impede the exercise of free speech. Free speech is an important right for progressives to defend. Historically, legislation curtailing political rights of bigots and haters has been used to attack the left. Freedom of speech is not a right well codified in law in Australia. The High Court has ruled that the constitution contains an implied protection of free speech, but defines it narrowly in terms of participation in activities connected to parliamentary democracy. But clinic safe zone legislation does nothing to stop the development of public political campaigns anywhere apart from in the vicinity of the clinic. But by preventing behaviour intended to stigmatise abortion, and the harassment and intimidation of people accessing clinics, such legislation can promote the privacy, dignity and safety of women and people needing abortion, and the friends, family and staff who support and serve them.

Clinic safety legislation should be enacted and enforced. Whether pregnancy termination is being contemplated because a wanted pregnancy has been found to be unable to survive, because an unplanned pregnancy is unwanted, or for any of the complicated reasons that can bring a pregnant person to an abortion clinic, no-one should be faced with the public shaming and humiliation that go on outside services at the moment.

In NSW and Qld, such protective measures, if introduced, will have an immediate impact on improving the wellbeing of those who access abortion services. However, such measures alone won't be enough to improve access to abortion, while the procedure remains on the criminal codes of those states and generally inaccessible through the public hospital system. To be safe and accessible, abortion needs to be legal and available in locations close to where people live. Last year, the NSW upper house rejected a bill to remove abortion from the criminal code, while a similar bill was withdrawn from the Queensland parliament without even being debated. The campaigns for abortion law reform in both states remain active despite these setbacks, and last week's victory in the NSW upper house can only be a further motivation for the campaign to make free, safe, legal abortion accessible on demand without apology.

Outside clinic in Midland, WA, February 2018. Would not be permitted under clinic protection legislation.

Outside an abortion service and advocacy conference, Brisbane, August 2018. Would not be affected by clinic protection legislation.

"Yes" victory in Irish abortion referendum

As the results of the Irish abortion referendum were announced on May 26th, scenes of celebration were shared around the world. The "yes" vote to repeal the constitutional ban on abortion had registered a smashing majority of 66.4%. Voter turnout was 54.51% - higher than for the 2015 marriage equality campaign and a record for any referendum in Ireland.

With 1,429,981 votes for repeal, campaign group Abortion Rights Campaign (ARC) Ireland points out, more votes were cast to remove the amendment than were cast to insert the ban into the constitution in 1983.

The 8th amendment, as it was known, recognised a right to life of the foetus equal to the right to life of the woman or pregnant person.

Under the ban, abortion has been subject to a comprehensive ban, even in cases of risk to the woman's health, conception from rape, and when fatal foetal anomaly have been diagnosed. Thousands of women travel abroad every year to obtain abortions in the UK and Europe, and thousands more risk the 14 year gaol term undergoing illegal abortion using imported medications without medical supervision.

The death of migrant dentist Savita Halappanava in 2012 from septic miscarriage was attributed to the ban, as legal uncertainty led to delays emptying her uterus while the foetal heartbeat was detected, even though her miscarriage was deemed inevitable and became the cause of her overwhelming infection.

Her death became the trigger for legislative reform and the push to repeal the constitutional ban.

After a series of public mobilisations, the issue was referred to the Irish Citizens' Assembly, which recommended a referendum to repeal the constitutional amendment and allow the government to make laws to regulate abortion.

Before the referendum, the government announced that if the amendment was repealed, they would introduce legislation to allow abortion freely up to 12 weeks of pregnancy, for medical reasons (with two doctors' agreement) up to 24 weeks, and for fatal foetal anomaly after that. They have pledged to introduce the legislation this year, and plan to establish services in Ireland in 2019.

The No campaign mobilised with images of foetuses, attempts to equate foetal life with the lives of children and pregnant women, misleading advertising claiming the government's proposed legislation would allow abortion up to six months, and claims to "love both" - arguing for adoption instead of abortion.

A statement issued by the Adoption Rights Alliance noted the offensive irony of the No camp slogan "Love Both". As advocates for those adopted under Ireland's closed, forced adoption system, they pointed out that none of the adopted people they are in contact with over two decades have ever been offered support by anti-abortion organisations. Similarly, it was anti-abortion crusaders who persecuted pregnant women and gave cover to the forced incarceration of unmarried pregnant women and girls (and those considered "at risk" of pregnancy outside marriage) in the Magdalene Laundries and other institutions - where they were forced to give birth and relinquish their babies for adoption.

Adopted People for Yes was one of the 97 groups that joined the umbrella group "Together for Yes," by the time the referendum was held. It emphasised compassion and care for women and pregnant people facing crisis pregnancy.

The Yes campaign was marked by stalls, fundraisers, rallies, public statements and social media outreach. Perhaps most striking was the scale of mobilising of volunteers to doorknock canvassing for votes. The Yes volunteers knocked on 500,000 doors, or about a third of all households in the country.

In public and in private, people facing crisis pregnancy told their stories of stigma and isolation traveling for abortion care; of taking medications to induce abortion without medical assistance; and of being denied care in their home country, when faced with a diagnosis of severe foetal health problems that would inevitably result in stillbirth or the death of the baby if born.

“Today’s results show what we in ARC have seen around the country for the last 6 years – that the people of Ireland were hungry for change. The grassroots community-led organising at the heart of ARC has been a huge part of the campaign’s appeal across all groups and communities. We especially acknowledge the work of migrants who did not have a vote and who were disproportionately affected by the Eighth, as well as the many trans and non-binary people affected.”

“This result is bigger than Ireland: we know the world watches us as abortion access is being eroded in other places. Ireland now has the opportunity to be a beacon to the world in terms of respect for people who can get pregnant.”

Close to the republic, calls have already been made for the UK to liberalise abortion access in Northern Ireland, where the issue has been devolved to the parliament of the six counties, and remains banned by an 1861 law. With the power-sharing agreement in a shambles and no executive government in Belfast for over a year, the demand is being made for the UK government to bring abortion law into line with the rest of the UK. A rally of hundreds launching the campaign was held in Belfast on May 28.

Another rally was held the same day in Brisbane. Buoyed by the victory in Ireland, sixty people gathered to call for repeal of Queensland's abortion laws - also modelled on the UK 1861 Offences Against the Persons Act.

Vigil for Savita Halappanavar, outside Irish consulate, London, 28 October 2017

Ireland: Abortion Referendum to be held May 25

Campaigning for abortion rights in Ireland has stepped up since the announcement of the date and wording of a referendum on constitutional change to allow abortion. The referendum will be held on May 25. It will ask voters whether to repeal the section of the Irish constitution that bans abortion, and to allow parliament to make laws to regulate abortion.

Currently, abortion is banned by the Irish constitution under an amendment (the Eighth Amendment) adopted by referendum in 1983. According to the amendment,

‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’

According to Shauna Stanley of the Melbourne Irish Abortion Rights Campaign, the impetus for the amendment was the Roe v Wade ruling in the US. Anti-abortion activists in Ireland wanted to prevent similar judicial intervention from making abortion accessible to women in the republic.

Abortion rights campaigners have waged a campaign for over 30 years, beginning with the "No" campaign in that referendum, and continuing efforts that have borne fruit in a change in public attitudes, constitutional and legal change and now the growing call to repeat the Eighth Amendment.

Attempts by the state to restrict pregnant women's access to information about abortion and right to travel to obtain abortion were overturned by successive referenda, which added two further amendments to the constitution:

‘This subsection shall not limit freedom to travel between the State and another state.’

‘This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.’

While the later provisions give people needing abortion some protection, it means (as many abortion rights campaigners point out) abortion is a problem that Ireland exports. As a result of the ban, an estimated 4000 women and non-binary or trans people travel abroad (mostly to the UK, but also the Netherlands and France) each year to obtain abortion. Up to 2000 risk a 14 year gaol term by taking medications obtained online, to induce abortion. The number who are unable to obtain abortion and simply continue a crisis pregnancy, with all the impacts that has, is unknown.

Ireland's abortion ban is among the strictest in the world. It is extensive, with few exceptions. The impact of the ban on abortion in Ireland is not only felt by women who are simply not ready for parenting, or who can't manage for socioeconomic reasons, but also those who have conceived from rape, are in coercive or violent relationships or have serious but not life-threatening health problems. Although the constitution refers to the "equal right" to life of the mother, the chilling effect of the abortion ban on healthcare providers and institutions is so extreme that in 2012 it led to the death of a woman, Savita Halappanavar, who was miscarrying. Although she was told her miscarriage was inevitable and requested medical intervention to empty her uterus, it was refused on the basis that there was still a foetal heartbeat - and despite her condition deteriorating as she developed overwhelming infection as a result of the miscarriage.

Savita's death galvanised the growing community opposition to the abortion ban, with massive and growing annual marches for choice calling for abortion to be legal. In a quirky twist, the appearance in around 2012, of insensitive graphic billboard advertising publicising opposition to abortion, itself sparked a renewed enthusiasm for organising and mobilising for abortion rights among a layer of the community.

A 2013 law, the Protection of Life During Pregnancy Act, subsequently codified that threats to the woman's life (as distinct from health), including the risk of suicide, would constitute grounds for abortion.

Attempts by the parliament to widen eligibility of people who could become pregnant have been struck down by the courts, because of the constitutional protection of the foetus. According to Stanley, this has also led to a strengthening of the pro-choice movement and its focus on calls to repeal the Eighth Amendment.

According to Stanley, in 2016, the campaign started to gain more momentum. Recognising the centenary of the Dublin Easter Rising, the Abortion Rights Campaign ran a campaign under the slogan "Rise and Repeal," linking the campaign for abortion rights to republican struggle and Ireland's historical context. The campaign drew out the proclamation of the republic's founder that the it was to be one in which Irish men and Irish women would have equal rights - something clearly absent in an Ireland where half the population is denied reproductive justice.

In the same period, the Repeal Project apparel campaign took off. Black jumpers with the word "repeal" on them spread the message and sparked conversations among people who might not have identified with more traditional political campaign activism.

During the Polish "Black Friday" women's strike of 2016, when the Polish government threatened to wind back what little space there is for legal abortion in that country, members of the Polish diaspora within Ireland mobilised in solidarity. Inspired by this action, on International Women's Day in March 2017, the abortion rights movement in Ireland held a women's strike - wearing black and staying away from work.

In line with the rising activism and campaign visibility, opinion polls in recent years have shown majority support for liberalising access to abortion.

As the campaign for reform continued to gain traction, the issue was referred to the Irish Citizens' Assembly, an exercise in deliberative democracy involving a random selection of citizens, tasked with making recommendations about a range of issues. In April 2017, they voted to recommend a referendum to repeal the Eighth Amendment and allow the government to legislate to regulate abortion.

In response, Leo Varadkhar, the Irish prime minister (Taoiseach), announced in September that the referendum would be held in mid-2018.

Announcement of the exact timing and wording of the referendum was delayed while the government awaited a Supreme Court ruling on whether the constitution provides for any foetal rights other than the right to life. The March 6 Supreme Court ruling that there are no other foetal rights under the constitution than the right to life paved the way for the decisions to be made on the referendum.

The Irish cabinet marked International Women's Day (IWD) 2018 by introducing the legislation to hold the referendum, and on March 25th, the May 25th referendum date was announced. The government has pledged that if the referendum is passed, it will introduce legislation to replace the Protection of Life During Pregnancy Act, decriminalising abortion for the pregnant person and introducing laws that make abortion readily available in the first 12 weeks of pregnancy, with restrictions as to reason thereafter.

Together4Yes, a coalition of over 70 groups from across Ireland, launched its campaign - modelled on the successful marriage equality campaign - on March 22. In the lead-up to the launch, member organisations have been training canvassers and recruiting volunteers from across the country to undertake the task of doorknocking and engaging people across the country, with a focus on those who are undecided.

The breadth of support for the campaign is evident in the packed calendar of campaign activities around Ireland, from art installations, public meetings and campaign stalls to punk gigs, singalongs, story-telling and comedy events.

And the campaign isn't limited to Ireland. In 2016, the online campaign Repeal Global was initiated to call and coordinate solidarity actions to coincide with the major annual marches for choice. Just like during the marriage equality campaign, there are campaign committees in the Irish diaspora around the world. The London Irish Abortion Rights Campaign launched a #hometovote campaign urging eligible voters around the world to make plans to travel back to vote in the referendum.

In Australia, campaign events have been held since 2016, with rallies in Melbourne in solidarity with the marches for choice in Dublin in 2016 and 2017, and other actions in Sydney, Perth and Darwin. The Melbourne Irish Abortion Rights Campaign formed a contingent calling for repeal of the eighth amendment to march in Melbourne's IWD march in 2017.

In the countdown to the referendum, Stanley says, the campaign focus is on fundraising. "Living in Australia, it would cost $2000 to return to Ireland to vote. Irish citizens who have been out of the country for 18 months aren't allowed to vote. And the laws about donations to electoral campaigns are quite strict. Only citizens can donate. Many of us are going to return to Ireland some day. And we want to return to an Ireland that has proper healthcare. If you need an abortion, you should be able to get it in your home country. We want to do something. Even if we can't vote, we can raise money to support the campaign. We want to reach out to members of the Irish diaspora in other cities, to support them to be part of the campaign - whether it's organising fundraisers, or participating in the social media campaigns, or encouraging to talk with their grandparents back home."

And in the spirit of the solidarity that connects the Polish and Irish struggles, she added, "and we want to support the campaigns in Australia, in NSW and Queensland. We'd like to support organising solidarity in the states where abortion is legal, to help the campaigns in NSW and Queensland, where it's not."

Connect with the Melbourne Irish Abortion Rights Campaign on Facebook at "Irish Pro Choice in Oz."