In the Cairns Magistrates’ Court yesterday the case against a young woman and her partner, accused of procuring an abortion for the woman in December last year using the drug misoprostol, was adjourned until 18 June.

Meanwhile we have received advice from a barrister with expertise in criminal law in Queensland, who has stated clearly that in his opinion the use of mifepristone (RU486) for medical abortion in Queensland is not lawful.

In April 2006 we became the first doctors in Australia to be given approval by the TGA to administer RU486 (together with the drug misoprostol) for the purpose of induced abortion. This approval was given under the Authorised Prescriber legislation of the TGA which permits the importation and use of certain drugs which are unavailable in Australia, but available overseas.

For the past three years we have used RU486 together with misoprostol for early induced abortion in women resident in Cairns who have serious medical conditions that would be worsened by their continuing a pregnancy. We have found the use of this drug combination to be safe, effective and highly acceptable to women, findings that concur with the experience of its use in millions of women in Europe, North America and Asia.

However we have throughout this time been concerned about the uncertain legal status of medical abortion in Queensland. In April 2006 the then Premier and the then Attorney General issued a statement to the effect that “current Queensland law is not inconsistent with a recent decision by the TGA to register doctors to prescribe RU486. Queensland law already authorises doctors to prescribe drugs approved by the TGA in accordance with the provisions of the Health (Drugs and Poisons) Regulation 1996. There is no need to change the law for doctors acting within the law.”

While this statement from two lawyers within the government was reassuring at the time, it has never been tested in court. Over the past three years we have made repeated requests to the governments of the day to clarify and update the relevant sections of the Criminal Code (which dates back to 1899) to provide a clear framework in which Queensland doctors can perform both surgical and medical abortion.

The situation became in our view more urgent in April this year when the young Cairns woman was charged under section 225 of the Code of procuring her own abortion by medical means. Our attempts to communicate with the Queensland Attorney-General and other members of the government on this matter have so far proved fruitless, and we therefore sought the opinion of the barrister, who has given us the following advice:

  1. The prescription or administration of the drug RU486 for the purpose of terminating a pregnancy in a patient by a doctor authorised to do so under the provisions of the Therapeutic Goods Act 1989 (Cth) …is not lawful (in Queensland) for either the practitioner or the patient under what I understand to be the terms of the authorities issued under the provisions of the Act…
  2. The prescription or administration of the drug RU486, in combination with the drug misoprostol used ‘off-label’ for the purpose of terminating a pregnancy in a patient by a doctor authorised to do so under the provisions of the Therapeutic Goods Act 1989 is (likewise) not lawful( in Queensland) for either the practitioner or the patient…

Our advice is that the Health (Drugs and Poisons) Regulation 1996 mentioned in the government’s 2006 statement do not apply to RU486 which has a special license for its use. To quote our barrister again: “ I have been unable to identify any provision within (the 1996 Regulations) which might be thought to provide a source of authority for the use of RU486 for the purpose…of termination of pregnancy under Queensland law.”

Given this very explicit advice from an eminent legal practitioner, we have been forced not to resume the practice of medical abortion in Cairns, using the combination of RU486 and misoprostol, until there is a clear legal framework in which we can care for our patients, and in which we can be certain that those patients, as well as ourselves, do not risk prosecution.

This is unfortunate, since there is a large group of women among those who each year seek abortion in Queensland who for medical reasons would be better advised to undergo medical rather than surgical termination, as well as an even larger group who would like to be able to make the choice for the more private and less invasive medical procedure. These women will be restricted to surgical abortion which although safe and effective is more expensive (often much more expensive) and more difficult to access for many Queensland women especially those from rural and remote areas.

We would also point out that the law regarding surgical abortion is also restrictive and repressive; the wording of Queensland abortion law, unlike that in most other states, is unchanged since the year 1861 and bears no relation to the current practice of abortion in the rest of Australia and most developed countries. It is in urgent need of reform.

It is also clear from our experience that statements from politicians cannot be relied upon for legal certainty in medical practice. We are continuing to recommend to our colleagues in Queensland who may practice medical abortion that they seek their own legal advice.

RU486/misoprostol abortion is now available to women in Sydney, Melbourne and Perth, albeit still under the guidelines of the TGA’s Authorised Prescriber legislation. In South Australia, where an enlightened government reformed and liberalised abortion law in 1970, RU486 is now widely available to women who have to make the often difficult decision about abortion for themselves. RU486 is available to women in Europe, the United States, India, China, all countries of the former USSR and much of Africa. It is available to women in rural Vietnam and rural Tunisia, but not to women in rural Queensland.

Reforming abortion law in SA has not resulted in any increase in the number of abortions in that state (which incidentally has residence requirements for women seeking abortion, so abortion tourism from Queensland to SA will not be a possibility, although it is likely that more Queensland women will be seeking abortions in NSW and Victoria). It has simply provided more choice about a procedure that should be a private matter involving only a woman, her doctor, and those close to her whose support she may seek.

The State of Queensland covers a vast area and many women live in rural and remote areas. Accessing surgical abortion in Brisbane or the few other large centres where it is provided can be financially, geographically and socially difficult if not impossible for women from far-flung parts of the state. In 2006 when the Harradine amendment was overturned in the Federal Parliament and we were given approval by the TGA to use RU486, we felt that at last we were beginning to solve this problem. We will be continuing to press strongly for reform of abortion law in Queensland in line with that in other states with the definite aim of making safe medical abortion accessible to all Queensland women.

Peter Fray

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