At last the Queensland government has acknowledged, however imperfectly, the very real concerns of Queensland doctors, in particular specialist gynaecologists, about the ambiguity of the state’s abortion laws.
At the time of writing, Royal Brisbane and Women’s Hospital has suspended all abortion services. The procedures performed at RBWH, and at other public hospitals throughout Queensland that have taken similar steps, are for strong medical indications, and the suspension is not in the immediate interests of some women who will need to travel interstate. However, it is essential that we have a clear legal framework in which to continue offering these very necessary services to Queensland women, services which are consistent with the practice of abortion in the 21st century.
Both medical and surgical abortion, even by registered medical practitioners, remain crimes in Queensland under legislation that uses wording from 1861. They remain crimes even if the woman is not pregnant — because in 1861 pregnancy was not diagnosed until the woman felt quickening foetal movements at four to five months. Amenorrhoea — missing menstrual periods — up to that point was suggestive but not proof of pregnancy. The law was supposed to protect women by preventing unsafe abortion using instruments. It failed to do that in the 19th and early 20th centuries and it is completely irrelevant in a society where women can conduct their own home pregnancy tests and make their own reproductive choices.
It is true that there have been no prosecutions of doctors since Dr Peter Bayliss was acquitted in 1986 but the law remains in the Criminal Code, and as the case currently before the courts in Cairns shows, the police are prepared to prosecute both a woman making a personal decision for herself, and her supportive partner.
So far the government has suggested letters and words of reassurance for doctors, and some tinkering with section 282 of the Criminal Code so that there is a defence for medical as for surgical abortion. The assurances of persons currently in positions of power provides little legal certainty even while those people remain in their posts, and none whatever when they depart.
It is possible to find a solution without complete decriminalisation, if the government shirks from the latter. Adding the words “excepting a registered medical practitioner” to sections 224 and 226 of the Criminal Code would mean that doctors would be exempt from prosecution for abortion. Prohibition of abortion by people who are not registered medical practitioners is obviously desirable and the sections of the Code could remain to deal with them.
Section 225 which penalises the woman should be struck out — the Victorian Law Reform Commission which reported to the Victorian Parliament last year prior to decriminalisation of abortion in that state clearly made the point that the woman herself should never be prosecuted for undergoing abortion. Section 225 is medieval in its intent and its wording, one step away from accusing women of witchcraft. The government appears to fear some kind of electoral backlash if it acts, but the debate no longer concerns the issue of abortion itself.
That has been decided by the community, 80% of whom want women to be able to access safe legal abortion. The debate is about making it possible for abortion to be, as the Premier herself has described, “a matter for a woman and her doctor”. And the longer the Premier hesitates, the more she loses support from Queensland women.
As I have written before, there is undoubtedly a brisk illegal trade in abortion drugs in Australia. This results from uncertainty about the law, and in Queensland, difficulty accessing abortion especially outside the southeast — clearly this what the Cairns case demonstrates. Never again should a Queensland woman be subject to the humiliation this young woman has already experienced — with undoubtedly more to come. Responsibility for the case rests on successive Queensland governments and on the health services who have for too long avoided the provision of accessible abortion services for Queensland women.
There is an urgent need for uniform abortion laws across Australia. There are currently some significant differences in accessibility between states outside Queensland. But the difference between accessibility in Queensland and all other states is even more significant. Abortion tourism is not the answer for Queensland women — the provision of safe and accessible lawful services within Queensland is the answer.
Like everyone else working in the area of women’s health I would like to see Australian abortion rates fall — preferably to the levels of many European countries whose rates are less than a third of ours. But this cannot come about until we move the whole subject of abortion into mainstream community discussion and mainstream medical practice, and understand how to prevent unplanned and unwanted pregnancy. Hopefully this day is not too far off.
Caroline de Costa is Professor of Obstetrics and Gynaecology at James Cook University School of Medicine, Cairns.