Termination of pregnancy bill - second reading speech

Tuesday, 16 February 2021 

Mr DULUK (Waite) (16:35): I also rise to speak to the Termination of Pregnancy Bill 2020. As many members have indicated so far in their deliberations, this is a complex, sensitive and challenging issue for all South Australians. At the heart of it, we are talking about matters of life and conscience. Therefore, we must tread with extreme care and caution in legislating for such action and always undertake this debate with respect and decency.

I think the Attorney mentioned the need for respect and decency in her media comments yesterday in the paper, and the descriptions of the 'Wicked Witch of the East', 'murderer' and 'baby killer' are completely unnecessary from all sides of the debate. There is no place for that type of emotive language. It is not appropriate, it does not help and it does not help deal with that issues we are talking about in front of us.
Other comments—and I am sure all members have received these through their correspondence—include, 'You have no right to comment on this legislation because you are a male,' and also that my view does not have a place in this debate. We are all here as members of parliament. We are here to work with legislation and the debate that is before us, and it is incumbent on all of us to participate in the debate in a respectful and thoughtful manner.

Regardless of which label you choose—'foetus', 'collection of cells', 'unborn baby'—it cannot be denied that we were all in this position once; we all share in that common experience. As legislators, we have that delicate task of balancing the needs of the unborn child and that of the mother, finding the best ways to support them both in providing the best and safest health care available to them right across our state.

Within this bill, we are dealing with matters that impact on women, couples and their families, and at times it can be very difficult to discuss, as the member for King so eloquently put in her contribution just then. There are strong arguments from pro-life and pro-choice advocates and both are very passionate about their views. During my time in this place, just as you have, Mr Deputy Speaker, I have sat with people on both sides of the issue and had many discussions with constituents about their thoughts on abortion, its decriminalisation and on certain late-term aspects of the bill.
As the member for Playford put in his remarks just then, I do not think there are too many in this entire house who do not support moving the bill from the criminal code to a general healthcare code. But that, in essence, is not what we are actually dealing with in this draft legislation before us. I think there is a raft of other measures in this debate.

As I said, this bill has generated strong views from my constituents, especially around changes to gestational limits. Certainly in my community, and I think across South Australia, there is very little support for what is called late-term abortion and allowing for the gestational limits to change that would allow potentially termination to birth, and especially a termination on a child in utero who is capable of being born alive and surviving independently of their mother. This step, I believe, is too far for many South Australians and, in fact, most Australians in general think it is a step too far.
A 2019 YouGov Galaxy poll found around 69.8 per cent of Australians were against abortion taking place after 22 weeks. The bill does allow for abortion at any stage up until birth, if deemed medically appropriate. I ask this house to consider if the current laws regarding late-term abortion are enough and whether they actually need to be extended.

In years to come we do not want to hold the same regrets that the late Hon. Mr Millhouse had, lamenting the wide interpretations that deviated from the legislation's original intent. I personally believe that being more specific about the circumstances around gestational limits would assist in this regard, and I will be supporting amendments with respect to that.

Currently, we have legislation that deals with late-term abortion in circumstances of medical necessity, such as to preserve the life of the mother. I do not know whether this bill, if passed, would increase the number of late-term abortions in South Australia. I would certainly hope that it does not. Evidence from Victoria suggests that it will, with a 2017 Victorian mothers and babies report showing that since abortion to birth legislation was legalised in Victoria in 2008, there have been an average of 65 late-term abortions a year in that state.

Let us not forget that with late-term abortion we are talking about a gestational stage when human life is viable and a foetus can survive independently of its mother. Medical advancement continues to demonstrate that this is the case. SA Health regards the threshold of viability to be from 22 weeks. Knowing this, it is interesting to also note that the gestational limits for abortion in other countries is as low as 12 weeks in Denmark, Norway and Switzerland and 14 weeks in Germany, France and Spain.

As has already been put on the record, there are other amendments and I understand the member for Playford seeks to move amendments around sex selection. This is another concern that constituents have raised with me, and the potential danger for sex-selective abortions to occur in Australia. Obviously, in my view no-one supports this and we should never open the door to aborting a child simply because of its sex. It is discrimination, plain and simple, and it goes against everything that our society has fought for for generations.

Whilst it is a practice that most Australians abhor, there are reports that indicate that prenatal gender selection is taking place in Australia. A La Trobe University study from 2018 led by Dr Kristina Edvardsson found that in Victoria from 1999 to 2015, around 108 to 109 males were born for every 100 females in certain community groups, higher than the worldwide ratio of 105 males born to every 100 females.

In these same community groups, the ratio is even higher for mothers who have had two or more previous births, with around 122 to 125 males born to every 100 females. This is a concerning development and one that has been brought up in other states when they have debated legislation similar to this bill, as outlined in the South Australian Law Report Institute report 'Abortion: a review
of South Australian law and practice', October 2019, at page 322. It is a terrible practice that continues to occur in other countries around the world. While it may not happen much here in South Australia, I would hate to see any change in our abortion laws that would lead to this practice occurring.
One issue that has been raised with me quite a lot is the issue of conscientious objection by the medical fraternity in the bill's current form. Under part 2, clause 8(1)(e), the proposed legislation requires registered health practitioners who conscientiously object, to, and I quote:
(i) transfer the person's care to a registered health practitioner who, in the practitioner's opinion, can provide the requested service and does not have a conscientious objection to the performance of the termination or providing advice about the performance of the termination; or
(ii) provide the person with information on how to locate or contact such a registered health practitioner.

The bill, as it currently stands, forces conscientious objectors to be part of the termination process by referring the patient to a doctor who will perform the procedure or providing them with information on locating another doctor who will. Dr Joanna Howe, Associate Professor in Law at the University of Adelaide, states:
Those who argue that forcing doctors to refer for abortion is merely about providing access to healthcare fail to understand that the act of referral is no trifling matter for a doctor who believes medical termination involves ending the life of an in utero foetus.

This presents a great ethical dilemma for many South Australian doctors who do not wish to play a part in the termination of a pregnancy. The conscientious objection provisions within the current Criminal Law Consolidation Act presently protect the rights of persons, including doctors and nurses, to conscientiously object to playing any part in the procurement of an abortion. An open letter signed by some 50 South Australian doctors voices their concerns, and it goes on to say:
SA is the last remaining state protecting conscientious objection in abortion. We implore you to maintain the status quo with the existing clause written by the late Justice Millhouse.

The open letter continues to say:
The authors of the conscientious objection clause, including the AMA, insist that conscientious objection is respected by the Bill. That is entirely false because the new clause coerces doctors to act against their conscience and mandates punishment which may include deregistration. Nobody should be forced legally to do something which they find unconscionable. Let it be clearly understood that parliamentarians have demanded for themselves a conscience vote where abortion legislation is concerned. It is contradictory, even hypocritical, to demand conscientious freedom for oneself and then use that freedom to deny freedom of conscience to doctor and other healthcare practitioners.
Other sections of the letter state:
We write to appeal for the restoration of the current status quo on this matter which is crucial to the practice of medicine by good and conscientious medical professionals.

They go on to say that a referral is not needed from a doctor in South Australia in order to procure termination services. Of course, this information is available on the SHINE SA information memorandum, where it says:

You don't need a referral from a GP to access abortion services in Adelaide.
This was certainly reinforced to me when I visited the Pregnancy Advisory Centre with some of my colleagues as part of the SA Health briefings. I had an opportunity to speak to the people on the ground at the PAC who said that a referral from a GP is not required to access their services.

I believe the current Criminal Law Consolidation Act's conscientious objections are some of the most sensible in the nation, in terms of other jurisdictions. In her paper 'Medical referral for abortion and freedom of conscience in Australian law' 2019, Howe states:

The middle ground can be seen in South Australia. There, the refusal must be due to a conscientious objection, though this not defined in the legislation. The person relying on a conscientious objection has the burden of proving their objection in any subsequent legal proceedings. An additional provision limits the situations where conscientious objections can be made. It is not available where 'treatment is necessary to save the life, or to prevent grave injury to the physical or mental health of a pregnant woman'. This is in the current Criminal Law Consolidation Act.

South Australia's approach appears to reject a pluralistic approach in that it permits conscientious objection, regardless of whether the motivation is religious or secular. There is also an element of pragmatism in that a claim of conscience could be scrutinised in the course of malpractice proceedings, thus placing some pressure on practitioners to ensure they have a defensible position in regard to conscientious objections but providing protection for deeply held beliefs. If the practitioner were unable to establish their actions were due to a genuinely held conscientious objection they would be potentially found liable for negligence.

Dr Roy Watson, who is head of Gynaecology at the Central Adelaide Local Health Network and a former Vice-President of the Royal College of Obstetricians and Gynaecologists, also commented in the MPs' briefing in relation to this debate on conscientious objection provisions. He states:
…threatening the loss of medical licence for refusing to be involved in a process with which one does not agree, and which may even be dangerous, is not going to help us maintain a rural medical workforce when solo practitioners feel that they need to compromise their personal convictions in order to provide other essential medical services to South Australian women. We should be doing everything possible to sustain an adequate rural workforce, and this threat is detrimental to that cause.
My final words, in terms of the conscientious objection provisions, come from respected Adelaide clinician Dr Elvis Seman, medical lead of Urogynaecology at Flinders Medical Centre and Associate Professor at the Department of Obstetrics, Gynaecology and Reproductive Medicine at Flinders University. He says:
The Bill targets, stigmatises and, in effect, criminalises conscientious objectors, with the potential threat of disciplinary action including deregistration, which destroys one's reputation and livelihood. We were all privileged to train and practice in a culture which respects conscientious objectors, and countless doctors like us would not be in medicine today if the current Abortion law did not protect our right.
I will be moving amendments that simply replicate the current conscientious objections provision within the Criminal Law and Consolidation Act 1935, being section 82A(5) and section 82A(6), into the bill we are debating at the moment. These amendments are supported by many current medical practitioners in South Australia. These amendments seek to provide plurality, pragmatism and legislative protections.

I will not be supporting this bill in many of its elements because it goes well beyond the decriminalisation aspects by permitting late-term abortion, for one, and a lack of clarity around conscientious objections. That is why I will be supporting those amendments. I understand members are tabling other amendments and I will see whether I am in a position to support those as they are progressed and debated. I believe this bill fails to achieve many protections for our most vulnerable. As I said, this is a matter that requires compassion and support. I know there are some amendments from the member for West Torrens and the member for King which I hope are successful to improve this legislation overall.