What are the implications for other states, now that abortion has been decriminalised in Victoria?

While South Australia and Western Australia have updated abortion law in recent years (although leaving it within criminal legislation) the Queensland Criminal Code (1899) and the NSW Crimes Act (1900) contain wording on abortion that harks back to the English Offences Against the Person Act of 1861 (which was supposed to protect women from unsafe abortionists, though it singularly failed to do so.)

In both Queensland and NSW abortions are performed in clinics and hospitals under the common-law protection afforded by the Menhennitt ruling in Victoria (1969), the Levine and Kirby rulings in NSW (1971 and 1994) and the McGuire judgment in Queensland (1986.) These (it is assumed) make abortion lawful if the doctor performing the procedure has an honest belief that the woman’s life or physical or mental health would be at risk if the pregnancy continued; the doctor must also believe that the risks to the woman from the abortion itself are in proportion to the risks to be averted if the pregnancy continued.

The Queensland legislation poses particular problems for abortion providers in that state as the defence to a charge of performing an unlawful abortion (in section 282 of the Criminal Code) only allows a “surgical operation” to be performed; at the time of drafting of the Code medical abortion was unknown. The NSW legislation (and the Victorian legislation that has just been rescinded) is less specific, allowing both “instruments” and “substances” for the lawful performance of abortion.

The Queensland government attempted to clarify and legitimate the situation in a statement from the Premier and the Attorney-General in 2006, declaring that the fact of the Therapeutic Goods Administration (TGA) having approved the use of a drug (such as RU486) for the purpose of abortion made the use of the drug lawful in Queensland, but this has not been tested in court.

Queensland doctors continue to find themselves in a grey area when they perform abortion, despite their holding an honest belief that a woman’s best interests are being served by the procedure. Some 14,000 surgical abortions are performed each year in Queensland, but the size and geography of the state mean that women in rural and remote areas experience great difficulty accessing surgical abortion.

The overturning of the Harradine amendment in Federal Parliament in February 2006 meant drug companies could apply to the TGA to manufacture and/or market RU486 (mifepristone) in Australia, without the personal permission of the Minister for Health being required. However to date none has made such an application, probably because of the political controversy that has surrounded the drug (despite its safety, effectiveness and acceptability to women having been amply demonstrated in overseas studies) and because such applications entail hefty fees.

Since July 2006 a colleague and I in Cairns have had TGA approval to use mifepristone under the Authorised Prescriber legislation which permits doctors in private practice to import drugs unavailable in Australia but available overseas, for their own patients, in situations which are “life-threatening or otherwise serious.” We must comply with both the TGA regulations and Queensland law which means that we have performed only a small number of medical abortions using mifepristone in Cairns. Doctors in Victoria, NSW and WA have obtained similar TGA approval and have likewise performed small numbers of procedures.

South Australian doctors have recently gained similar TGA Authorised Prescriber approval; they have not yet started to use the drug but expect to do so in early 2009. The wording of SA abortion legislation means that RU486 will be much more widely available in SA than has been the case so far been in other states — in fact to any woman undergoing an abortion who chooses medical rather than surgical methods. The change in Victorian law means that Victorian doctors are also able to apply for this wider use of mifepristone — at least four are known to have commenced such applications.

Since the overturning of the Harradine amendment Australian women have become increasingly aware of the advantages of medical rather than surgical abortion — and are voting with their feet. Many clinics and private practitioners in Victoria, NSW and Queensland, unable to access mifepristone, now offer methotrexate for early medical abortion; this drug, easily available nationally, has been shown in overseas studies to be safe and quite effective, but inferior to mifepristone. So women undergoing methotrexate abortion are being offered second-best treatment for reasons that are essentially political.

It is recognised that Queensland women in some cases travel outside the state for abortions. In the case of SA a two-month residence requirement means that abortion ‘tourism’ to SA is not possible. Queensland abortion law is currently the most restrictive in Australia, and its effects are particularly harsh for women in rural and remote parts of the state. There is an urgent need to decriminalise abortion in Queensland (and in NSW) and to bring about uniformity in both law and practice across the country.

Peter Fray

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