The report of the bipartisan committee of Queensland Parliament inquiring into abortion law reform in the statewas released at 5.17pm last Friday. The Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee was instructed to conduct an inquiry following the tabling of the Abortion Law Reform (Woman’s Right to Choose) Amendment Bill on May 9 by independent MP for Cairns Rob Pyne.
Pyne’s bill is the first attempt in history to remove the abortion offences from the Queensland Criminal Code (QCC) of 1899. These offences makes abortion a crime for doctors, women and any person assisting with an abortion procedure.
Queensland has no upper house, so the parliamentary committee system plays an important role in reviewing proposed legislation. This particular committee has worked hard, calling for submissions from across the state and receiving more than 1400 of them (the average number of submissions to such inquiries is normally about 20).
There were days of public hearings, in Cairns and Emerald as well as Brisbane, and expert witnesses in medicine, ethics and law were called to testify. Ultimately, the committee has produced a report of some 117 pages that deals comprehensively with every aspect of termination of pregnancy in Queensland.
While abortion remains a crime, it’s estimated more than 14,000 abortions are performed each year in Queensland — 99% of them in the private health system. Doctors who perform abortions are dependent for protection if prosecuted under the QCC on case law — principally on the judgment of the Bayliss and Cullen case of 1986.
Numerous medical witnesses to the inquiry spoke of the effects of abortion remaining in the QCC: doctors are uncertain or even fearful of practising or being involved in abortion, and services within the public system are extremely limited, so abortion remains difficult to access geographically and financially for many Queensland women, especially those living in rural and remote areas.
Doctors’ professional bodies spoke out loud and clear in favour of decriminalising abortion. The Queensland Branch of the Australian Medical Association (AMAQ) told the inquiry their members supported legal and safe abortion, and believed Queensland’s current laws, which criminalise terminations of pregnancy, were a barrier to a doctor’s first duty — best patient care. The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG), whose members conduct all the later terminations for severe foetal abnormalities in the state, strongly supported passage of the bill, as did the Queensland Nurses Union, with more than 53,000 members.
There were several hundred submissions from groups and individuals expressing strong opposition to the passage of the bill on the grounds of their own personal or religious beliefs about abortion. Few addressed the terms of the inquiry. A recurrent theme in many was a concept of “nine-month abortion” — the idea that decriminalising abortion would mean that women would demand, and doctors would provide, “abortion” up to nine months of pregnancy.
In response there were multiple representations from RANZCOG and from individual senior doctors currently providing late abortions for women faced with a diagnosis of lethal or very severe abnormality in their baby, and having to make a decision for themselves about terminating that pregnancy. These experts detailed the reality of “late-term abortion” — the care and the prolonged discussion and consideration that surrounds a decision to terminate at more than 20 weeks gestation, and the precautions taken to ensure that this is done ethically and respectfully.
It was also pointed out by submitters that detailed regulations are currently in place covering all aspects of the practice of medicine and the registration of health professionals in Queensland as elsewhere, and that these would continue to apply in the event of abortion being decriminalised.
The committee looked carefully at research around effects of abortion on women’s mental health, concluding that reliable studies have, in general, shown no long-term adverse effects in this area. They also addressed community attitudes to abortion, commissioning Professor Matthew Gray of ANU to assess the reliability of all recent Australian surveys of community attitudes to abortion, and concluding that the evidence shows a majority of Australians broadly support a woman’s right to choose an abortion.
[Bills will bring Australia’s abortion laws out of the 19th century]
Pyne’s bill is a simple repeal of the current sections of the QCC, which he describes, rightly, as “archaic”. On August 17, after carefully considering submissions to the inquiry and the direction the committee appeared to be taking, Pyne introduced a second bill to Parliament: the Health (Abortion Law Reform) Bill 2016.
This bill has now been sent to the same committee, but no action has yet been taken on it. This second bill would require abortion performed after 24 weeks’ gestation (a rare occurrence, as testified at the hearings) to require the agreement of two doctors; it also covers the introduction of exclusion zones to protect the privacy of clients attending abortion services and allows for conscientious objection to participating in abortion procedures on the part of doctors and other health professionals. It thus closely resembles the legislation now in place in Victoria.
The committee found itself unable to make a recommendation that the first bill be passed by Parliament as “it failed to address a number of important policy issues and to achieve a number of its own stated objectives”. However their report also notes that the second bill proposes “to regulate some of the matters that have been raised during the committee’s current inquiry”.
It is to be hoped that further inquiry does reveal that these matters have been adequately addressed in the second bill and that the two Bills can be passed during the term of the current Parliament.
Meanwhile, Queensland women and their healthcare providers must continue under the shadow of the criminal law while accessing a procedure that Queensland’s first woman premier, more than eight years ago, described as a matter that should be “entirely between a woman, her partner and her doctor”.
*Caroline de Costa is Professor of Obstetrics and Gynaecology at James Cook University College of Medicine, Cairns. Heather Douglas is Professor of Criminal Law at University of Queensland, Brisbane