Late last year, a young Australian woman whom I will call Joanne* was delighted to find that her home pregnancy test was positive. She and her partner had been hoping for some time for this moment — the pregnancy was very much wanted.

She was making all sorts of plans for the birth of her baby when at three months of pregnancy she underwent the routine fetal screening tests now offered to every pregnant woman in Australia through Medicare. The aim of these tests is to detect in the womb abnormalities, which may be incompatible with life for the child once it is born, or with the quality of life.

One of the possibilities implicit in the provision of these screening tests is that if a serious abnormality is detected the woman may choose to terminate the pregnancy. The tests now offered are extremely sophisticated and high-tech and the investment of Commonwealth tax dollars in them is considerable.

It is easy to imagine Joanne’s distress when she learnt that the initial tests suggested that her baby might indeed have a severe abnormality. Definitive ultrasound scanning confirmed the fetal brain had not developed, a condition known as anencephaly, and that although the pregnancy might continue until term the child would be born lacking more than 90% of the brain, a situation incompatible with life. Despite their distress, Joanne and her partner had little difficulty making the decision that the pregnancy should be terminated; they are intelligent and rational people.

However, they then became aware of a major obstacle: they live in Queensland. They were shattered to find that in Queensland — unlike every other state and territory across the country — such an abnormality is not sufficient grounds for an abortion in the public hospital that had made the diagnosis.

Joanne was given two choices. The first was to be seen by a psychiatrist and a social worker and to convince these people that, despite no previous history of psychological disorder, her mental state was so affected by the diagnosis of this abnormality at 14 weeks of pregnancy that abortion was needed to prevent her committing suicide, opinions that would then be considered by a hospital committee able to say yes or no to her request.

All of this, of course, was going to take considerable time, during which Joanne would continue to carry the abnormal fetus who could never be the healthy happy baby she had planned for.  The alternative was to have the abortion performed privately. However, it was clear to Joanne and her partner that if the abortion was unlawful on the grounds of fetal abnormality in the public hospital it must be equally unlawful in a private hospital in Queensland.

Joanne felt that she could not cope with the farce of lying to the psychiatrist and made arrangements to have the procedure done privately in NSW, something the couple could not easily afford. Moreover, having to travel away from home was a difficult experience and she did not get the psychological support during this ordeal that should have been her right, and which is available for women in this difficult position in every other Australian state.

Meanwhile in Cairns no date has yet been set for the trial by jury of the young couple charged with procuring an abortion for the woman in December 2008. Apparently there is a backlog of cases in the Cairns District Court as there is currently only one judge available, who does not hear criminal cases. The two young people are on bail, they have had to move house after being firebombed, and she has lost her job. Moreover, without any conviction having yet been recorded, the woman’s reputation is besmirched around the planet — Google her name and you will get more than 185,000 responses.

The Premier of Queensland in January this year stated that there will be no changes made by her government to the state’s 19th-century abortion laws (sections 224-226 and section 282 of the Criminal Code), which make abortion a crime for the woman concerned, any person performing an abortion, and any person assisting. Section 282 allows of an exception only to save the life of the woman.

This is now being rigidly enforced throughout Queensland Health hospitals — the Minister for Health has stated in writing that no abortion may be done for fetal abnormality unless the woman’s life is demonstrably in danger. The woman with a diagnosis such as Joanne’s, or with a child with no kidneys, or serious heart defects that cannot be corrected by surgery after birth, can claim to be suicidal and thereby be “allowed” an abortion — or she can continue the pregnancy, ultimately give birth, and watch her baby slowly die.

It would appear from the persistence with which the Cairns case has been prosecuted that the justice system is equally determined to enforce the antiquated Queensland law, the wording of which is unchanged since 1861.

In mid-2009, all Queensland specialist gynaecologists involved in the care of women requesting termination of pregnancy for diagnosed severe fetal abnormality withdrew their services, due to concerns about their legal position in this regard; legal opinions were obtained individually and through the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. Minor cosmetic amendments by Parliament to section 282 of the Criminal Code in September last year did not alter our legal opinion that performing a termination of pregnancy for fetal abnormality, no matter how severe that abnormality, remains a crime in Queensland, and the doctor involved risks prosecution.

Very restricted services have been resumed in a few hospitals but not all, and most women given the diagnosis of a serious fetal abnormality are simply being left to fend for themselves. While about 100 women were sent interstate last year for termination, Queensland Health has now ceased this practice; moreover hard-pressed services in other states have understandably demurred at suggestions that they might permanently take on this role.

It has been said by the Premier that while she is “pro-choice”, she does not have the numbers to take abortion law reform to Parliament and have it passed (unlike the surrogacy legislation, which has recently been passed in that same Parliament without the sky falling in.)  If this is the case,  there would seem to be a simple solution: refer the out-of-date repressive abortion laws to the Queensland Law Reform Commission, whose job it is to reform the law.

A process similar to that carried out in Victoria would be appropriate: a public inquiry by which every single Queenslander with a view on the matter could be heard, a careful examination of the law, and recommendations to Parliament on reform, possibly including decriminalisation. This would have the advantage of distancing the matter from the faint-hearted Cabinet, while providing a very accurate picture of what Queenslanders do actually want in the way of safe, legal accessible abortion for women who need to make such a decision for themselves.

The Premier has also claimed that the Victorian process is unsuitable for Queensland because Queensland is “different”. Some differences there may be, but Queensland women, just like their Victorian sisters, unfortunately do experience unplanned pregnancy in large numbers every year. While better sex education and better contraception and contraceptive education services are the key to reducing abortion rates, as shown in many European countries, there is an urgent need for safe and legal abortion in Queensland.

It is completely unacceptable that Queensland women continue to be denied choices that are available and accessible to all other Australian women.

* Name has been changed to protect this woman’s privacy

Peter Fray

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