Reflections on abortion law reform in NSW

Bruce Childs Lecture 2019
Penny Sharpe

I would like to begin by acknowledging the traditional owners of the land we gather on today, the Gadigal people of the Eora nation. I pay my respects to their elders past and present and extend that respect to any Aboriginal people here today.

The Bruce Childs lecture is a chance for those of us in the Labor Party, especially those in the Left, to stop and reflect on the work and life of Bruce Childs. Bruce has been a mentor, a teacher, a leader, a consensus builder and for me, someone I can look to in the rough and tumble of politics and always find a person of integrity; a person who has always looked to find the things that unite us – reaching outside of ourselves to find people wanting to take action together on the shared values of collectivism, equality and justice. With the tumult that has always been a feature of the NSW Branch of the Australian Labor Party, we have always been able to look to Bruce and his example of how we can 'do politics differently' when so many around us have completely lost their way. The work I do, I hope, echoes those values through generations of Labor Party members. Thanks Bruce – for everything.

Wake in fright

I want to take you back to August this year. I’m in the spare room in my house, it’s dark. I have come in very late from Parliament and slept here so I do not wake up my partner, Jo, and our daughter Pip, who has snuck into our room.

It is 4.23am. I’m bolt upright. I am covered in sweat and my heart feels like it is going to pound out of my chest. I wonder briefly if I’m having a heart attack. As my heart starts to slow I accept I am not, in fact, dying. It dawns on me that I’ve just had my first anxiety attack. 

As the attack passes, I realise that perhaps the NSW Reproductive Health Care Reform Bill is having a more difficult time going through the NSW Parliament than first anticipated. We are a few hours into the amendments in the Legislative Council with many, many hours to go. My anxiety is that the Bill before the Parliament could be passed with amendments that would make the situation for women, and other pregnant people in NSW wanting to access a termination, harder than it already is.

This has never been the plan. In the early hours of that morning and after months of work with my Parliamentary colleagues and women’s, legal and medical organisations, I contemplated whether I would be forced to pull my support for the Bill. Just how bad would it have to get before I could no longer endorse it? What would it mean to withdraw support for a Bill I had helped draft and spent my entire political life trying to get done? These were the questions I asked myself every morning as the debate continued.

Then I got up and went back into Parliament.

Brief history of abortion laws in NSW

The NSW Parliament in August and September this year was at the political pointy end of a story that started long ago. It was 1900 when the laws that govern abortion in NSW were put into the Crimes Act. 1900 was also a time when there were no women in our Parliaments and women were still not allowed to vote. The laws were imported directly from the UK. The result was that a woman or her doctor could go to gaol for procuring or performing an abortion.

This, of course, did not stop abortions – it just made them unsafe. Unless you were a wealthy woman of means, and had access to a doctor who could help stop an unwanted pregnancy, thousands of women were forced to use backyard abortionists or to take matters into their own hands. Women died or were permanently injured. The backyard abortionists paid off police to turn a blind eye, and women rolled the dice on their lives to end a pregnancy. In the Justice and Police Museum, the evidence is there in the blood-soaked crime scene photographs of abortions gone terribly wrong.

Meanwhile, the stigma and shaming of sexually active women remains entrenched in our culture. It was not until 1971 that the District Court ruling by Justice Levine opened up, in certain circumstances, a lawful path for women to access abortions in NSW. But, the threat of gaol remained.

The campaign for free, safe, legal abortion continued in earnest. That campaign has taken us almost 50 years.

Why did the law have to change?

The very simple idea that access to reproductive health care is a basic human right is one of the reasons I wanted to go into Parliament. This is not just theoretical – it’s personal. I grew up in Canberra where, at the time, there was no access to abortion services. I had experienced the terror of waiting for a pregnancy test that could change my life. I fortunately never had the double line appear. I had friends who did. At a time in our lives where our parents didn’t even know we were having sex, the lives of young women were being played out through telling elaborate lies, raising money, travelling to Sydney and hoping no one found out about their abortion – that shame and stigma still exists.

Outside personal experience, the reasons why the law had to change came down to this: no other area of the law seeks to dictate to women and other pregnant people the choices they make about healthcare; and, unless and until women are free to decide when, and if, we want to be a parent; unless and until we are free to decide how many, and in what circumstances, we will have children; unless and until women are free from sexual violence and reproductive coercion – women cannot be free or equal. For all the debate and discussion, that is why the law had to change.

In making this case for change, there was another very NSW specific issue we had to address. Even supporters of the reform wanted to know why, given that at least 20,000 terminations were safely and lawfully being performed in NSW every year, was there a need to change? Were we buying a fight when there really wasn’t a problem? We were faced with resistance within the Parliament and a great lack of awareness within the community about the legal status of abortion.

Access is a complex issue, but at its most basic, criminalisation limits access. The fragile legal status that holds the threat of ten-years imprisonment for a woman, and her doctor for procuring or performing an abortion, means that the impact for women, and other pregnant people in NSW who need to have a termination, is that if you are poor, if you live outside of Sydney, Newcastle or Wollongong, if you are Indigenous, or if English is not your first language, accessing a termination can be very difficult. In a country with supposedly universal health care, women in NSW seeking abortions are forced into a private system with high costs. There is virtually no public hospital provision and access to medical terminations is limited to the very few doctors willing to provide the service. The cost is almost three times the already exorbitant fee of $500 – $700 if you have to travel. Couple this with the stories of women in regional areas who have to run the gauntlet of the anti-choice GPs in their towns – who made access even more difficult – and the impact of criminalisation becomes clear.

Why on earth did it take so long?

Why has it taken NSW so long? Why was NSW the last state? I don’t have the whole answer, but I am willing to provide some of the reasons.

NSW is the most religious state in Australia. More people identify with organised religion here than anywhere else in the country. The interplay between private religious observance, organised religion, and how that impacts on public policy, has become increasingly fraught over recent decades. The Marriage Equality Postal Survey shone a light onto some of those dynamics. Abortion is one of the issues that challenges the public/private divide. Increasingly, as we have seen with the Republicans in the US, reproductive rights are used actively and viciously for political organising within conservative religious communities. Those who are close to their faith-based communities understand this intimately, and while so far in Australia there has not been a lot of evidence to show that MPs will lose their seats over being pro-choice, that is not the case in the US. No MP wants to face the local anti-choice campaigning that we experienced in NSW this year.

Another reason for the delay can be found in the presence of this bloke, you may have heard of him, The Rev. Fred Nile from the Christian Democratic Party. He has been in the Parliament for almost 30 years. Fred has been very influential, holding the balance of power in our Legislative Council for most of that time. His influence over both Labor and Liberal Governments should not be underestimated. In a happy but important coincidence when bringing this Bill forward, Fred Nile lost the balance of power in NSW at the last State election. His influence has waned.

From our side (Labor) of politics, we cannot shy away from the very strong resistance within the Labor Party. Thankfully those days are mostly over, but I am old enough to remember being in Young Labor when abortion law reform was considered a ‘Left’ issue that was to be resisted at all costs. Meredith Burgmann, Carmel Tebbutt, Sandra Nori and Jan Burnswoods can tell you what that active resistance looked like in the NSW Parliament.

For me, the most important reason that abortion law reform has not been pursued successfully before is that the numbers in the Parliament have just not been there. For over three decades, Labor feminists have asked themselves in every Parliament, do we have the numbers to change the law? If we do have the numbers, by attempting to change the law, can we guarantee that women in NSW will not be worse off than they are under the current legal, albeit fragile, legal framework? Until 2019, the answer to this was no.

During the debate, it was why I was awake in the early hours worrying that perhaps we had done the wrong thing in attempting this reform.

So, what had changed in 2019?

So what changed to lead us to pushing the green button on reform? Firstly, the community dragged MPs towards change. Decades of campaigning and the lived experience of 1 in 4 women who have had a termination in their lifetime, built 80 per cent support for the notion that the decision to terminate a pregnancy should be the decision of a woman and her doctor. Over recent times, this change in attitude has seen the law reformed in Victoria, the ACT, the NT, Tasmania and Queensland.

Secondly, after decades of inaction, and with the community nipping at their heels, Labor governments have been willing to take on the reform. Why had Labor changed its mind? It is obvious but it must be stated explicitly. There are more Labor women in our parliaments. The 1994 changes that embedded affirmative action in the Labor Party have made the difference. With more of us at in the Parliament, Labor women made reproductive rights a priority. We refused to be deterred. The gains we have made in response to sexual assault, domestic violence, laws of consent, a focus on equal pay, and the importance of childcare, are also a result of this basic truth.

We did it

So, 48 years after the Levine ruling, abortion in NSW is no longer a crime. We did it. We removed abortion from the Crimes Act. The ‘we’ that did it was an unprecedented coalition of 15 Parliamentary co-sponsors from Labor, the Nats, the Libs, the Greens, the Independents and the Animal Justice Party.

The process was driven by a working group that included Alex Greenwich, the Independent Member for Sydney, Trevor Khan from the Nationals, our very own Jo Haylen, the Labor Member for Summer Hill and me. We were greatly assisted by the Liberal Health Minister, Brad Hazzard. We had the support of the Labor leadership team of Jodi McKay, Yasmin Catley and Adam Searle. We also had the unfailing commitment of Shadow Ministers like Trish Doyle, Ryan Park, Jodie Harrison, Jenny Aitchison and Kate Washington. Gladys Berejiklian and John Barilaro’s support was also essential. Alongside the working group was a pro-choice coalition of over 70 organisations led by the Women’s Electoral Lobby. The coalition contained women’s groups, legal and medical experts. The Alliance gathered organisations like Family Planning, RANZCOG, the Nurses and Midwives Association, Women’s Health NSW, the Human Rights Law Centre, the Council for Civil Liberties, EMILY’s List, disability advocates, feminist reproductive rights advocates and individual medical lawyers into a coherent, informed campaign machine. Young women’s organisations like Our Bodies, Our Choices, Fair Agenda, Labor for Choice, and individual young women, also emerged during the campaign.In reality, there were many different pro-choice campaigns happening to lobby MPs and build support in the community through the media and online.

I want to highlight three parts of the campaign. The first was the campaign put together by Emily Mayo called Arrest Us. It was inspired by the 80 women in the 1970s who took out a full page ad in the National Times, daring police to arrest them for having an abortion. Emily worked carefully, discretely and with great respect for the women she was contacting, to find 50 women who agreed to publicly out themselves as having had an abortion. In doing so, these women put names and faces to an issue that touches so many, but about which, few are willing to talk publicly. Once the list was put online, Arrest Us went viral, and thousands of women shared their stories of abortion. The media picked up some of those stories. Thanks to you all.

The second was the bold and sassy tweeting from Our Bodies, Our Choices (OBOC) led by Claire Pullen and Christine Donyare during the long debate. Part fact-check, part education – and lots of shade – OBOC tweeters kept everyone informed and entertained when the going got really tough. OBOC also generated 100s of hand-written cards, notes and letters to supportive MPs. When we were in the midst of being sent foetus dolls, being screamed at in the street, being sent emails calling us murderers, these notes of thanks, and of encouragement to keep going, made a difference to even the most battle hardened of politicians. They also helped us sure up the waverers.

The third part of the campaign came from Wendy McCarthy, the AMA and the Obstetricians and Gynaecologists. Their behind-the-scenes work, especially with more conservative MPs, was a triumph of reason and evidence over propaganda and fear.

Why did we bring it on in August?

The catalyst for action was the failure of the Greens attempt at law reform in 2016 and 2017 that spurred pro-choice MPs in NSW to again look seriously at a Bill. After the failure of the Mehreen Faruqi Bill, pro-choice MPs were frustrated at the lack of collaboration, lack of strategy and the public shaming of individual MPs from the Greens. There were many bridges burned. Without the Greens, members of the National Party, Labor and key Independents started to talk about whether we could try again after the State election.

We were buoyed by the success of the Safe Access Zone Bill that was co-sponsored by Trevor Khan and me. The Safe Access Zone Bill did not deal with abortion but sought to stop the harassment of women and staff outside abortion clinics. The Safe Access Zone Bill allowed many MPs to put on the record their support for decriminalisation of abortion, and it became clear that the numbers for abortion law reform were there, if we could get all the ducks lined up.

In parallel, after the defeat of the Greens Bill, pro-choice organisations - that would end up being the Pro Choice Alliance - regrouped and did 18 months of consultation, consensus building and drafting of what an Abortion Law Reform Bill could look like, if we were to pursue it. Their work was clever, strategic and consultative - just how laws should be designed. All of this was in preparation for an opportunity after the election, no matter the result.

Then we had the NSW State election. Labor said we would refer our outdated abortion laws to the Law Reform Commission for review. Alex Greenwich indicated during the election campaign that he would like to move on abortion law reform after the election. The Coalition were silent. You may remember, Labor lost. Alex, Trevor, Jo and I got together after the election and counted the numbers. Yes, we did believe that there were in the numbers in the Parliament to reform the law.

With the help of our staff, we started drafting a Bill based on the work of the Pro-Choice Alliance and the laws in Victoria and Queensland. Alex reached out to the Liberal Health Minister, Brad Hazzard, and started working through the details of the Bill. The Pro-Choice Alliance drew up a campaign plan, raised money and employed a person to work full-time on the campaign. We worked through a Parliamentary strategy and announced we were going to introduce a bill in July

…..And then, all hell broke loose. Those of us who had been in the trenches of reproductive health wars in the past knew that the anti-choice opponents were going to fight against this Bill with everything they had. Even though we knew we had the numbers, there were those in the government (and our side too) who underestimated how hard the campaign would be.

Although the Premier was supportive of the reform, she was faced with a party revolt. Only a minority of Liberal MPs supported the change. The conservative anti-choice MPs used every trick in the book to delay, defer and try to kill the Bill. They even launched an ill-fated leadership spill. The best thing about the spill was that it lasted about three hours, and helped immensely with Libs falling into line behind the Premier. What it also showed was that the Liberal Party was in turmoil, and some of their MPs were willing to publicly target the Premier. This was a very dangerous place to be.

The campaign against the Bill also provided a rallying point for those who had been mobilised against marriage equality and who are part of the campaign on religious freedom. The Sydney Anglicans, the Catholic Bishops, the Orthodox churches and for the first time, the Imams and an Orthodox Rabbi, banded together with the ‘pro-life’ organisations to wage a furious campaign against the Bill. The Uniting Church and the Newcastle Anglicans were the only churches who supported the reform.

What followed included a 100k+ person petition, rallies of over 10k people, thousands of emails, postcards and phone calls. The phone calls were so abusive that staff were given additional support if they required it. That bastion of family values, Barnaby Joyce weighed in, and NSW National MPs and the Premier were targeted in their seats with US style propaganda. It was ugly and it was personal. The campaign was hard. It was bruising. It brought out the worst in people.

It also brought out the best. I have special admiration, and we owe a debt of thanks, to those pro-choice MPs of faith. Those MPs stayed strong under a relentless campaign that came into their electorates, their places of worship and into their families and homes. What started as a legislative reform we hoped would be done in two weeks, went for two months. After 23 hours of debate in the Lower House, the Upper House endured another 50 hours of debate. It was the third longest debate in NSW history. One hundred amendments were put on the table and furious negotiation behind the scenes saw nine sets of amendments agreed to. The work of the National Party MLCs led by my friends Trevor Khan and Niall Blair, and clever lobbying efforts of pro-choice groups, worked to find a way through. Alex Greenwich worked with Brad Hazzard and other Liberals to get expert health advice on each and every one of the amendments.

And we got there - with amendments we weren’t thrilled with but could live with. 119 years after the laws were first made, abortion is no longer a crime in NSW.

More to do

That, of course, is not the end of it. We have to finalise the guidelines; we must ensure accessibility for women, no matter where they live, and what their circumstance. We must ensure public provision. There is also an urgent need for policies and programs that provide better sex education and access to long lasting contraception to those who need it. We must also be alive to the fact that, in the future, we may have to fight off attempts to roll back the law. For now, that is a problem for another day.

What have we learned?

In winning this reform there are many lessons learned. This is what I have learned. You must know how to count. Putting time and energy into building relationships across the Parliament is vital; the trust developed through these relationships is a priceless commodity. Working with community groups is also essential. Always work with the best experts. Tell the stories; don’t just rely on the facts. Hold your nerve. It can take decades for change to happen, but we build on each other’s work. Every campaign matters, even if you think you will never see the end of it.  It may take years.

Tonight, I want to acknowledge the Labor women, and our pro-choice allies, who have gone before in not just trying to reform abortion laws, who have been forced to push back when reproductive rights have come under attack, as they have done in every Parliament. The work that Helen Westwood did on Zoe’s Law is an important example of this. Ann Symonds and Meredith Burgmann filibustering about dancing when there was almost a vote on the Fred Nile Bill is another.

Final thoughts

Making change is hard, but it is worth every frustration, every set back, every tear, and every email/tweet/social media post that attacks you. To know that we have made the lives of women, girls and other pregnant people that little bit easier, against the wishes of those who seek to control our bodies, is very satisfying. There is a reason why people like us decide we are going to care about an issue. Nothing changes if no one chooses to care about it. It is why we rely on the Labor Party to deliver on that change; it is why we fight for it internally and externally. And why do we do it? Because it is worth it.

Thank you again for asking me to come and tell my version of how this historic change in abortion law was made. Many will have a different take on the events as they unfolded. There are many others who have a tale to tell, and we should make sure we get all the stories down. This story is just mine. I’d like to especially thank Jo Haylen – my Labor sister in crime – for being there in some very strange meetings surrounded by, mostly male, Libs, Nats & Independents. The day she had to bring in her 5-year-old son, Archie, who she carried calmly to the sink to vomit as she made her point was a particular highlight. Jo’s intelligence and good sense helped cut through many an annoying discussion to bring us back to what we could and could not accept. We could not have done it without you.

Finally, I’d like to come back to Bruce Childs. Your influence on so many of us has been so important.You have led by example and for that we will remain ever grateful. Thank you.


This is the edited text of the Bruce Childs Lecture 2019, 'Reflections on Abortion Law Reform in NSW', presented by Penny Sharpe MLC on Wednesday 4 December 2019.