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The decriminalisation of abortion threatens a schism in the NSW Liberal Party, with opponents of the reform putting Gladys Berejiklian’s leadership in peril. By Russell Marks.

NSW abortion bill dividing Liberals

From the biblical story of Esther, former physiotherapist Tanya Davies – member for Mulgoa in the New South Wales lower house – took a lesson: “Esther spoke up and her people were saved,” Davies said in her first speech to parliament. She cited Esther as her “role model”.

In the Old Testament, the orphaned Esther is chosen by King Ahasuerus of Persia as his second wife after he discards his first, Vashti, for refusing his order to strip naked at a banquet. When Ahasuerus orders the massacre of all Persian Jews, Esther must choose between outing herself as Jewish, which may put her own life at risk, and staying silent. Ultimately, she speaks up, which ends well for her and her people – though not for the 75,000 Persians who are massacred on an order issued by Esther and her cousin Mordecai.

When Davies recounted the story in 2011, she was silent about Esther’s campaign of bloodthirsty revenge. “Like Esther, I believe that I have come to this place for such a time as this,” she told the house. Her time in the NSW parliament was to be one “for courage, not cowardice”, for “steadfast Christian values”.

Davies is the most bellicose of the conservative Liberals leading the charge against the Abortion Law Reform Bill, which, despite majority support in the NSW parliament and the state, threatens to blow apart the premiership of Gladys Berejiklian – just six months after she led the Coalition to its third consecutive electoral victory. But the March election was bruising for the government: it weathered a swing against it and lost six lower house seats. Berejiklian was left facing a precarious two-seat majority, with her own leadership showing signs of vulnerability.

The bill – originally called the Reproductive Health Care Reform Bill, before opponents successfully changed its title on Tuesday – is formally a private member’s bill. It was introduced to the lower house last month by Australian Marriage Equality co-chair Alex Greenwich, who came to parliament as Clover Moore’s anointed successor as the independent member for Sydney. With architects from both major parties and the Greens, the bill quickly passed the lower house in August, after a few amendments – including requirements for women to give informed consent and doctors to consider providing women with information about counselling, should they want it.

Not passed, though, were Davies’ proposals to lower the bill’s “threshold” gestation period from 22 to 20 weeks. As it stands, the bill would allow women to access abortions past 22 weeks – but only after a doctor consults with another doctor and considers a range of factors. The Australian Medical Association, the NSW Health Department and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists are all comfortable with a 22-week threshold, in line with a consensus in medical literature that younger foetuses are generally unviable.

In rebuttal, Davies cited the case of a Texan girl born prematurely in 2014 – after just 21 weeks and four days’ gestation – who, according to news reports, was able to attend preschool with no disabilities beyond a mild speech delay. As the girl’s treating doctors observed when they published her case study in the journal Pediatrics: “Advances in neonatal care have led to a gradual lowering in the gestational limits of survivability.” It is this hope of even earlier premature survivals in the future that underpinned Davies’ amendments. They were defeated in the lower house before again being proposed, and defeated, during the upper house debate this week.

Other amendments proposed by the bill’s opponents and defeated by its supporters include a selection of clauses that appear whenever abortion is debated in Western parliaments. There has been a mixture of the redundant, such as a requirement for doctors to administer medical treatment to a foetus that survives a termination procedure, and the ideological – the attempt to restrict late-term abortions to life-threatening situations. In the main, they are designed to delay the bill’s passage, which seems inevitable given the level of support it has in public and parliament.

NSW remains one of only two states – along with South Australia – in which abortions are illegal unless they are necessary to protect the pregnant woman’s life or health. Courts have expanded their definition of necessity, but in 2006 Dr Suman Sood was convicted in NSW after she provided a pregnant patient with the medication prostaglandin, causing a miscarriage at 23 weeks. The bill before the NSW upper house this week would create a new act to regulate abortions and would decriminalise any abortions performed under that act.

The Abortion Law Reform Bill is subject to a conscience vote, as with similar bills in other states. But bills in Victoria in 2008, Tasmania in 2013 and Queensland in 2018 were all sponsored by Labor governments. The only time an abortion reform bill passed through a state parliament during a period of conservative administration was in 1998, when in Western Australia a private member’s bill – introduced by Labor’s Cheryl Davenport – was passed despite opposition from the Liberal premier Richard Court.

The catch this time is that Gladys Berejiklian supports the NSW bill – she voted for it in the legislative assembly last month – but a substantial majority of her own party is against it. Fourteen Liberals voted in favour of the bill in the lower house, including three who changed their minds following amendments to the original text. But 19 Liberals voted against it. And seven of the 11 upper house Liberals have so far expressed their opposition in the legislative council.

Tanya Davies and two of her upper house colleagues, Lou Amato and Matthew Mason-Cox, feel so strongly about the abortion reform bill that they launched what has been described as a kamikaze leadership spill via email at 8.30pm on Monday. The trio had not done their numbers, and the spill never had any prospects. It was called off the next morning after senior Liberals – including some who oppose the bill, such as Treasurer Dominic Perrottet, Attorney-General Mark Speakman and Police Minister David Elliott – lined up to rubbish the spill and its proponents.

Davies said on Tuesday morning that she withdrew the spill after Berejiklian promised her unspecified “further concessions”. It is unclear what these are, if indeed the claim is true. Approached for comment, Davies declined and said: “I am respecting my colleagues in the upper house as they work through this process.”

But the threatened coup may be just a harbinger of more trouble. Davies has signalled a willingness to do whatever it takes to kill off this bill. “I put on notice the premier and ministers,” she said during her maiden speech, “that when I believe in something I do not give up.” Three weeks ago, she threatened to resign from the Liberal Party unless the bill was amended to prohibit gender-selection abortions. On Wednesday night, an amendment that sought to ban sex-selective abortions was rejected by the upper house: 15 votes in favour versus 26 opposed. There remains fear in the party that Davies will walk.

Tanya Davies is dangerous because there are no prospects she will be promoted while Berejiklian is leader. As minister for women in 2018, Davies voted against a bill to create safe access zones around abortion clinics. Berejiklian demoted her from the frontbench at the next reshuffle. Davies has reportedly told colleagues she intends to resign from parliament.

If an Independent Commission Against Corruption investigation into the property deals of John Sidoti, member for Drummoyne, forces the MP out of the NSW parliament – he was sports minister until he resigned on Tuesday, after ICAC wrote to Berejiklian – then the premier would find herself incredibly vulnerable to a defection by Davies. Rather than face the very real prospect of minority government, the NSW Liberal Party may well prefer to replace their leader with one more amenable to Davies and the anti-abortionists.

Debate on the bill continues in the upper house, which had only worked through about half of the 36 proposed amendments by Thursday. A final vote is expected in the next two weeks.

This article was first published in the print edition of The Saturday Paper on Sep 21, 2019 as "Libs split on abortion". Subscribe here.

Russell Marks
is an honorary associate at La Trobe University. He has worked as a criminal defence lawyer, a cricket coach, an academic, a policy adviser and a speechwriter.