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.

Peter Fray

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