The case of the young Cairns couple charged with procuring an abortion will now proceed to a jury trial in the District Court, although the date for this has not been set and may be months away. Meanwhile, the couple, on bail, are hunkered down in a new and hopefully secure residence following the intense publicity the case has generated for them and a firebomb attack on their previous home.
The prosecution of the couple led Queensland doctors to renew their approaches to government to clarify Queensland’s antiquated abortion laws — requests which have so far resulted only in tinkering with section 282 of the Criminal Code, which provides a defence for a doctor charged with abortion, so that “medical” abortion with drugs as well as a “surgical procedure” may also be undertaken if the woman’s life is in danger.
In conversation, the Deputy Premier and Health Minister has stated that he believes that the woman’s “life” means the wider interpretation taken by Judge McGuire in the last prosecution of a Queensland doctor for abortion, Dr Peter Bayliss, in 1986. (Dr Bayliss was acquitted.) McGuire includes the woman’s health and social circumstances, depending “on the reasonableness of the case”. Doctors are taking the view that if that is what “life” means then it should be written into the law.
Basically, doctors don’t want to be committing a crime when they perform an abortion in good faith, having discussed the nature, implications and risks of the procedure with the woman concerned and obtained informed consent. Abortion in Queensland still remains a crime for the woman, her doctor and any person assisting. The existence of section 282 provides but little reassurance to doctors, who would have to appear in court to invoke the section. Doctors believe that abortion should be decriminalised — for themselves, but particularly for the women they care for.
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The Deputy Premier has also said that “there have been no prosecutions of doctors for the last 23 years, and 14,000 abortions each year in Queensland; so I think it must be a pretty good law” — a fairly convoluted opinion, no matter how you look at it. Certainly there has been a prosecution of a woman — a prosecution that is ongoing.
Doctors previously performing medical abortions in Queensland hospitals have continued their ban on the procedures. A large number of legal opinions have now been obtained on the position of abortion (surgical as well as medical) in the Queensland Criminal Code. Individual doctors and hospitals have their own opinions as has the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG). The legal eagles are in an unusual state of absolute agreement with each other: the situation is unclear, whether doctors would be indemnified by Queensland Health and/or private organisations in the event of either a criminal or civil case being brought is equally unclear, and medical practitioners are advised against carrying out abortion until there is complete legal clarity.
So in increasing numbers, and funded by Queensland Health, Queensland women are crossing state borders to obtain abortion. Many other Queensland women finding themselves with an unplanned pregnancy are undoubtedly making private arrangements for interstate abortion – thereby demonstrating one of the oldest established truths of abortion practice: when a woman has made the decision about abortion for herself, and is unable to access that abortion in her place of residence, she will do whatever it takes to travel to where abortion is available.
Estimates of numbers transferred interstate by Queensland Health, all women with either severe abnormalities diagnosed in the foetus, or serious illness themselves, are of 40-50 women. There have also been intra-state transfers of women from country areas to larger towns or cities, where surgical abortion has been performed for them — these are women for whom medical abortion would have been medically preferable, or who had requested medical abortion. The cost to Queensland Health so far must be well into in the six-figure range.
Doctors working for Queensland Health are not permitted to speak to the media nor will Queensland Health speak on their behalf. RANZCOG through our President Dr Ted Weaver has however repeatedly spoken up on behalf of doctors, and has attempted negotiations with government, as have other prominent medical figures — unfortunately so far with little effect.
Another established truth about abortion is that when a woman makes this decision for herself, and cannot access safe services, she may well attempt her own abortion. The Cairns couple have told media that they were unaware that medical abortion was (at the time of their alleged crime) available in Cairns. Their solution to this problem was (allegedly) was to organise the illegal importation of recognised abortion drugs — something we are well aware is happening frequently in Australia. It is the fervent hope of all Queensland doctors involved in the current impasse that no women suffers adverse physical consequences from attempts at self-abortion.
Of course none of these transfers are good for the women concerned. Undergoing an abortion, especially a late medical abortion done for severe foetal abnormality diagnosed relatively late in a wanted pregnancy, is an extraordinarily difficult procedure for a woman to go through. Early abortion for a woman in difficult medical or social circumstances is also challenging for the woman. Adding the need to travel, often unaccompanied and often to an unknown city, to the abortion process itself, is resulting in truly traumatic experiences for women. All doctors involved regret this sincerely, and every effort is made to support women in these circumstances, but nevertheless the procedures are devastating for many of these women.
The solution is for the Premier to exercise some leadership and instigate reforms that will benefit women and give legal certainty to doctors. The debate is not about whether Queensland should or should not have abortion — we already have it — and that will not change. All involved on both sides of the debate agree that lowering abortion rates is highly desirable, but we cannot even start on that until we have recognition of what actually happens in Queensland. Denial of the reality of abortion, as in the responses of the Health Minister, is not helpful.
We need to understand why abortion rates in Queensland, as in the rest of Australia, are so much higher than in comparable European countries. Better contraception information and services and better and earlier sex education are almost certainly the answer to lowering rates — but the necessary research and discussion cannot proceed until we acknowledge that abortion is an important issue for all Queensland women.
If the Premier is unable to take on the task herself then the relevant sections of the Criminal Code should be sent to the state’s Law Reform Commission — whose job it is to reform the law- and appropriate recommendations sent back to Parliament. As soon as possible
Professor Caroline de Costa is from James Cook University, Cairns.