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Tuesday, 30 July 2019 11:41

NSW abortion convictions don't support reform

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New South Wales is the latest Australian state to feel pressure from abortion advocates to legalise the procedure. Although originally set to be debated on Tuesday, the bill will now be introduced tomorrow, with proponents expecting it to be voted on as early as the end of next week. [Click here to read more about the bill.]

It is important to keep the facts of the use of the present law in focus when the proposed new laws are considered.

A year or so ago a bill fully decriminalise abortion in NSW proposed by Mahreen Faruqi's Bill in the Legislative Council was defeated 25 to 14, with all Government MLC's opposing it. The Hon Trevor Khan, who is said to be one of the sponsors of the new draft Bill, said this at the conclusion of his speech on the Faruqi Bill:

"Let us have a discussion based upon an accurate understanding of history, the law and present-day practices, not on myths and anecdotes. For these reasons I cannot support the bill."

It is worth noting a few things about [the Sood] case. First, the charging of Dr Sood was the first such charge in about 25 years in New South Wales—that is, since the charging of the disreputable George Smart in 1980. Secondly, the facts of the Sood case are horrendous. I will not recount them all but it is safe to say that there is not much doubt that the professional standards of Dr Sood were appallingly inadequate.

The Sydney Morning Herald, following her conviction, reported on 24 August 2006:

The jury also did not know that six women had sued Sood for damages, some relating to failed abortions, in the District Court between 1998 and 2004. All cases were settled out of court.

And it did not know the New South Wales Medical Board had held at least five investigations into the doctor since 1995. Its professional standards committee had found Sood guilty of unsatisfactory professional conduct and found she had shown "serious inadequacy of attitude or caring for a number of patients who have been subjected to pain and suffering which could have been avoided".

The board had heard she saw 50 to 60, and sometimes up to 80, patients a day and was distracted and stressed …

The facts revealed in that Sydney Morning Herald article paint a picture of professional incompetence and neglect. If the proponents of this bill are relying on Dr Sood's conviction as a justification for this bill, they are relying on a very poor case indeed. They are relying upon an instance of appalling mistreatment of a patient.

The facts of the Sood and the equally horrendous Smart case are conveniently whitewashed out of the pro-reform article and editorial in today's Sun-Herald which also conveniently omit the key facts of the Lasaludu case from last year. Indeed the editorial suggests that those prosecutions somehow evidence a need for law reform. In the Lasaludu case, a woman who initially wanted to carry her baby to term was so pressured by her partner that she eventually sought but was at the late stage of her term unable to obtain a surgical abortion. 

There was no evidence of any kind of mental or physical illness suffered by the woman or her child or of any other grounds which would authorize a lawful abortion under current NSW law. She then engaged in the incredibly dangerous actions of purchasing abortifacient drugs on the internet and nearly killed herself and her baby by ingesting them. Fortunately, she was with friends when she fell grievously ill and was able to be rushed to hospital and saved. The fact is that none of the cases brought under the Crimes Act really provide any support for law reform.

Michael Quinlan

Professor Quinlan is Dean of the School of Law, Sydney at The University of Notre Dame Australia. Professor Quinlan was a long-time member of Allens’ Pro Bono Committee. His pro bono practice centred around refugee and migration appeals but also involved assisting charities and individuals in need. Professor Quinlan is the Junior Vice President of the St Thomas More Society, a contributing member of the Wilberforce Foundation and of Lawyers for the Preservation of the Meaning of Marriage. Professor Quinlan has a deep interest in the relationship between law and morality and law and religion. Professor Quinlan is married to Kate and they have four children Edmund, Brigid, Sinead and Liam.