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Abortion: speaking up for the muzzled doctors
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Today, the case against the young Cairns couple accused of procuring an abortion moves to committal hearings. In the Cairns Magistrates’ Court arguments will be presented by both sides and a decision made as to whether the case proceeds to the District Court. (UPDATE here — decision deferred for now) It is the fact of this case being brought that has led to the present stand-off between Queensland doctors, mainly those in the public health system and the Queensland Government. Over several years doctors, especially but not exclusively those involved in the diagnosis of fetal abnormalities in pregnant women and hence in the provision of late abortion services, have sought clarification and reform of Queensland’s 19th century laws. To no avail. Doctors have also been assured privately, by police and politicians, that a prosecution would never be brought under these laws. The Cairns prosecution proved these assurances false. Doctors across Queensland, including myself and my colleagues in Cairns, have independently sought advice about their legal position when performing abortions, in particular medical abortions. Section 282 of the Queensland Criminal Code, the section that would provide a defence to a doctor charged with abortion, stipulates only that a “surgical procedure” may be carried out. This defence was used in the case of Dr Bayliss, charged with abortion in 1986. Over the past 30 years medical abortion using safe and effective drugs has been developed and is now widely available in many countries. Lawyers providing doctors with advice have been unanimous in their opinions that the law regarding medical abortion in Queensland lacks clarity, and that sections 224-226 of the Criminal Code make medical abortion a crime for doctors, patients and any person assisting in any way. In addition, some medical indemnity organisations have indicated publicly that they would not assist doctors charged with and convicted of a crime. For these reasons doctors in all those Queensland hospitals providing abortions (and Queensland Health has publicly stated that there are 21 of these) have declined to undertake medical abortion. The government has responded by undertaking to make changes to section 282 of the Criminal Code, the section providing a defence to a charge of abortion. So far, the government line is that sections 224-226 will not be changed. This means that abortion continues to be a crime but that somewhat wider grounds for defence are provided in the revised section 282. In other words, doctors are still open to prosecution, and to the public naming of themselves and their patients — but in court they would have a slightly better chance of defending themselves. The majority of the Queensland Health doctors are specialist obstetricians/gynaecologists or trainees in the specialty. The president of our college, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, speaks for us when he says changes to section 282 are not enough. College lawyers have advised us that the threat of prosecution, and the implications of this, are not changed by the government’s tinkering with section 282. Doctors working for Queensland Health are muzzled — they have been forbidden by administrators from speaking to the media or making their concerns publicly known in any way. And some at least are becoming increasingly angry at not being heard and at the government’s intransigence in the face of their legitimate concerns. These are people who have undergone up to 15 years of training to reach the level of expertise required for the practice of their specialty, and who daily (and nightly) provide first rate care to the women of Queensland. And none of them wish, as one of them remarked to me, “to be another Dr Bayliss” – who with his patient was dragged through the District Court, although ultimately acquitted. It is worth looking in detail at the provision of late abortion (after 14 weeks of pregnancy) in Queensland hospitals. All pregnant women in the state, as in the rest of Australia, are strongly encouraged to have an ultrasound scan at 18-20 weeks of pregnancy, looking for structural abnormalities in the developing baby. In the first 12 weeks of pregnancy, screening tests for chromosomal abnormalities and other defects are also offered through Medicare. For the vast majority of women the news is positive: these tests reveal a normal fetus. For several hundred Queensland women each year, however, a major abnormality is found, which may be completely incompatible with life outside the womb, or may significantly impact on the quality of that life for the child. These are the women who, well on in a wanted pregnancy, must make a decision for themselves about abortion. Late abortion in such situations is usually performed medically, using the drug misoprostol in a hospital setting, and taking hours and sometimes days: labour and delivery are induced with misoprostol. This is understandably a difficult ordeal for a woman and one requiring dedicated and sympathetic staff. Access to the drug mifepristone (RU486) would decrease the length of the procedure but the drug has not so far been available in Queensland Health hospitals. While many regional and outer metropolitan hospitals provide the testing and have until recently provided misoprostol abortions when needed, the best diagnostic facilities are in Brisbane. The Royal Brisbane and Women’s Hospital and the Mater Mothers’ Hospital are public hospitals that have world-class technology and superb staff. Many women from suburban and regional hospitals throughout the state are referred to one or other of these hospitals. However, while RBWH diagnoses and offers abortions in cases of severe fetal abnormalities, as a Catholic hospital the Mater provides diagnoses but no abortion. The template on which Mater reports are printed reads, “No abortion at the Mater”. Women with diagnoses of severe fetal abnormality from the Mater and wishing to access abortion must seek it elsewhere in the public system, and if that fails, in the private system or sometimes interstate. With the withdrawal of services from all QH hospitals, all women requiring late abortion are having to be sent interstate — to NSW, Victoria and the Northern Territory — at the expense of Queensland Health. As long as this dispute continues so will this abortion tourism. A further difficulty is the recent realisation by doctors that since medical and surgical abortion in Queensland remain crimes, doctors performing either of these procedures would not be covered by their indemnity organisations in the event of a civil charge being brought. QH doctors have some of their indemnity provided by Queensland Health itself but are expected to provide their own “top-up” cover. They have not found recent statements from the Cabinet that they would be covered by QH in the event of a prosecution or complaint by a patient particularly reassuring. The college and individual doctors are waiting for further clarification on the indemnity issue from insurers but it is possible that those doctors in the private sector performing the 14,000 surgical abortions that take place in private Queensland clinics each year may find that they too would not be fully covered if charged with the crime of abortion. There is an urgent need for the Government to provide resolute leadership on this issue, and reform Queensland’s archaic and repressive abortion laws. Just how out of step the 19th century law is with the practice of abortion in the 21st century, and with the views of the majority of the Queensland population, is likely to be demonstrated in the Cairns Magistrates’ Court today. |
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9 Comments
There is something uncivilised, even primitive, about laws that forbid a doctor from performing an abortion when it is deemed essential for the woman’s health and wellbeing. Why is the government of Queensland so terrified of the reaction of Right to Life extremists that it won’t take the initiative and decriminalise abortions? What right have any of these fanatics to tell the women of Queensland that abortions are forbidden and the full weight of the law will fall upon them and their doctor if they persist? All opinion polls taken on the subject show a substantial majoroity in favor of making abortions legal yet politicians timidly refuse to act to change an archaic law. And the media seem as scared as the politicians to give any publicity or encourage debate on the subject. Right to lifers and the celibate bishops have a right to their opinion but they have no right to impose that opinion on the women and doctors of this country.
Vincent, sounds like your trying to impose your own opinion……………
loveyuhsall - And why not? The overwhelming number of people in Australia are against abortion being a crime, and for women making their own decisions. As a woman, I find it offensive, that I’m deemed capable of raising a child; holding down a responsible job, including being a barrister, surgeon, engineer, architect etc, and yet I’m not competent or allowed to make decisions about my fertility or whether I can decide to continue with a damaged foetus etc. This is just ridiculous and should cease! What is worse, is that most of those in the front line deeming to know my life and my health, are either males in establisned religions, and/or other males who have no idea and will never have to decide what to do in a difficult, painful and horrific situation. I condemn them as being non-christian and judgemental, part of the attitude to women of the ‘Damned whores and god’s Police’ brigade. Many of those in authority in these male dominated establishments would be better served to ensure, that their members (priests, brothers etc)aren’t pedophiles and rapists?
I’m very pleased indeed that I was never in this awful position, and I don’t believe I have the right to judge or condemn; and certainly no right to insist that other women make decisions that fit into my beliefs - I have no right to demand that a woman, for any reason should continue with a pregnancy regardless! I know women who’ve had to make the difficult decision to terminate their pregnancies, and it was always done with a very heavy heart. The laws in Queensland are archaic and should be repealed. Abortion should not be a crime! Nor should there be a different ‘set of rules’ for surgical and medical terminations. This is 2009 - let’s not go back to the days when women were butchered, died from horrific infections or made infertile due to backyard abortionists.
Liz45,
Firstly, I dont beleive that Laws should be labelled archaic based soley on popular opinion, regardless of how established or otherwsie they may be. Modern generations have no more right than previuos generations in determining the morality and values of our society. If our society, by popular opinion, agreed that all deformed humans should be exterminated because they are a burden to individuals or our society, morality would be diminished to a democratic vote.
Secondly, you have diminished your arguments to a damaged child. Not all abortions are the result of an imperfect child in the womb.
Thirdly, I’m all for “pro-choice” as long as it does not infringe the rights and protection of others. e.g. I can choose to rob a bank, but that doesnt make it right. I can choose to be a rapist, but when my choice infringes the right of another person it is not acceptable. This is why we have laws. They draw the boundaries around our choice that protects others.
I do agree with you that less judgement and more love and understanding would produce a healthier society that takes care of all its citizens and values human life.
This article appeared in the Courier mail on 1st September. It may be of interest in forming your own position on this important matter.
http://www.news.com.au/couriermail/story/0,23739,26008385-3102,00.html
“Modern generations have no more right than previuos generations in determining the morality and values of our society.”
Then, who does?
I said….. “no more right’………..not “no right”. Morality is not necessarily progressive with time and generations. If morality improved with each generation then we would have fewer problems and we’d be living in a paradise.
Its time to invest the same passion to protect and save some heritage, culture and morality in the same way we passionatley save the heritage of a building or national forest. If we don’t we may loose our identity and have no sense of what is important and valuable about our lives.
I don’t want to live in the past, but I don’t want to throw out the laws that protect individual rights with scant regard to their intended purpose. In this case to protect the life of an unborn child.
loveyuhsall - And why should you have the right to force your opinions, values, morals etc on everybody else? Why is yours superior? Who judges and assesses that you are right. When does life begin, that is part of this question, and whatever the reason, you don’t have any more right to dictate your views on others, in this instance, pregnant women. We don’t need policing thank you. Why don’t you ever criticise the males who are irresponsible, who frequently don’t give a damn about how their sperm is ‘used’, and in fact,
“36% of women who had experienced violence from a previous partner, and who had been pregnant at some stage inthat relationship, said that violence occurred during the pregnancy and 17% experienced violence for the first time whilst pregnant.” (Domestic Violence in NSW) I’m sure that other areas of the country are as bad or worse. 25% of girls will experience some form of sexual abuse by the age of 18.
Rape in marriage wasn’t a crime until not very long ago - there are still judges/police etc who don’t believe it should be a crime now - it happens, but gets lost in the reality of reporting any form of sexual assault???Only recently, there was the judge’s verdict of a ‘technical’ rape, because the woman became unconscious before the act was completed? What? Still this nonsense in 2009? I thought once the mini skirt; out late at night etc was gone, we’d assume a better form of justice? Sadly, apparently we’re ‘not there yet’?
This all adds up to a pretty disgusting attitude by too many males. It would be more positive, if just some of the so-called ‘pro life’ people were more actively concerned about women; how they’re depicted, how men treat them and about joint responsibilities. If all men who didn’t want to father a child insisted on using a condom - guess what? Problem almost solved! But no, they’re driven by an obliging society re their irresponsibility, that prefers to question the morals, values and priorities of pregnant women. The hyocrisy is amazing, and I’m sick to death of it! And before you ask, no, I’m not a man hater, I just hate oppression and hypocrisy!
While you’re at it, you could work on the attitudes in the community and in governments re the treatment of people with disabilities. I listen to Talkback on ABC every day, and when this topic is raised, I’m shocked and ashamed at the cruel, no vicious comments from people ‘on the street’ that too many parents of kids with a disability have to cope with. Fix that up too, and ensure, that when parents of a disabled child(adult) die, the adult dependant person is cared for - it doesn’t happen now. We don’t even have a suitable unit for head injury or paralysed (or both) people from car accidents - young adults are shut in with elderly people with dementia etc. Horrific! Tidy up the society and its attitudes - then have a go at both parents culpability - not just the woman! In the meantime, set the laws up, so that a national law that allows the use of medical terminations via RU486 allows highly qualified medical people to use it in each state and territory. It’s just damned stupid as it is!
Liz, my sincere apologies if any of my comments are biased against women. These are issues for our whole community; male and female…young and old.
Like you I am against any violence and mistreatment against anyone in our society and especially those who are vulnerable. Violence against women is deplorable and any man who either psycologicaly or physically abuses women and/or children is a coward.
The issue we are discussing is the right of the unborn child at law. I believe we should be also concerned with the mother and her physical and psycological state in dealing with this very complex matter. I personally know the trauma associated with having an abortion and the guilt and shame that can follow.