QUEENSLAND: by Anthony GoodwinNews Weekly
Bligh Government amends abortion laws
, September 19, 2009
Queensland doctors providing medical abortions will have greater legal protection under recently amended state laws.
This move has prompted fears that more radical changes to the Queensland's abortion laws may be in the pipeline, with the possibility that the introduction of a private member's bill could see the complete decriminalisation of abortion in the near future.
Ever since the recent prosecution of a Cairns couple charged with procuring a miscarriage, Queensland doctors have refused to prescribe the controversial abortion drug RU-486, fearing they could face prosecution.
Unnamed doctors from the Royal Brisbane Women's Hospital declared that they needed further clarification of the law. This was despite earlier assurances to doctors from both Premier Anna Bligh and Attorney-General Cameron Dick that medical abortions were legal in Queensland under the guidelines set out by the Therapeutic Goods Administration (TGA), the Commonwealth Government's regulatory agency for medical drugs and devices.
Until recently, the normal practice for Queensland's public hospitals had been to provide medical abortions mostly on the grounds of supposed "foetal abnormalities". As Dr Darren Russell, director of Cairns Base Hospital's sexual health clinic, told a meeting of pro-abortion lobbyists at the University of Queensland last October: "We've done 106 [medical abortions] now, with about 10 per cent needing surgical follow-ups. If someone actually tells you [medical] abortions can't be done in Queensland ... It's a very grey area which doesn't actually say you can't do it."
Doctors in some (but not all) Queensland public hospitals went on strike and stopped providing medical abortions, even in life-threatening situations that required the removal of dead babies from the mother's womb. This was despite Queensland Health's director-general Mark Reid giving them a written assurance that Queensland Health would provide indemnity in cases where a medical abortion was supposedly required because a woman's life was at risk.
The doctors claimed that they were not exempt from prosecution under the Queensland criminal code, as section 282 only exempted "surgical operations to preserve the mother's life" as opposed to "medical operations".
At the same time there was a media outcry about a 24-year-old Brisbane woman, known only as "Shay", and other women travelling interstate for abortions.
The media's reporting of events gave the public the impression that the motive of the striking doctors was simply to avoid possible prosecution for providing life-saving medical care.
However, as a spokeswoman for the St Luke's Medical Guild of Queensland, Dr Jacinta Menkens, stated: "This campaign by pro-abortion doctors is not about a Cairns couple, nor is it a debate about the relatively small numbers of terminations performed in public hospitals. This is a calculated manoeuvre to undermine and devalue current legislation."
Cairns-based gynaecologist Dr Caroline de Costa (formerly the sole provider of RU-486 in Queensland) voiced the doctors' real concerns a month ago when she posed the question, "How does the common law defence apply, when it is medical in its application, not surgical?" (The Australian
, August 8).
The common law defence in previous cases applied to surgical abortions for supposed serious "mental or physical health" risks to the mother. This has meant, as Theresa Martin of Cherish Life Queensland has pointed out, that there have been no prosecutions of doctors for providing surgical abortions in Queensland for 23 years.
While medical abortions in supposedly life-threatening situations were not covered under the former Queensland law, there has been conflicting legal advice on whether the state could ever be successful in prosecuting such a case.
These events culminated in the Bligh Government, on September 3, hastily amending section 282 of Queensland's criminal code in parliament.
Many were left wondering why these amendments were needed at all and what they meant for the legal status of abortion in Queensland. The University of Queensland's Professor Malcolm Parker pointed out that the amended law, as it now stands, provides protection against prosecution for doctors providing abortions (medical or surgical) for the sake of the mental or physical well-being of the mother under a legal precedent originally set by the case of Bayliss and Cullen in 1986.
While this amendment may only confirm the status quo in Queensland, it seems likely the common law argument will now extend to the amended section 282 to cover medical abortions in the same way that it was applied to cover "surgical" abortions.
The amendment also includes a sub-section relating to "medical professionals". This could mean that supervision of medical abortions need not be undertaken solely by "medical practitioners with gynaecological or obstetric training". It could also mean that a drug company, with TGA approval, could make abortifacients such as RU-486 available to the public "over the counter".
Whatever the upshot is, these laws will mean that medical abortions in Queensland will no longer be restricted to supposedly life-threatening situations for the mother.
The state Opposition has declared that it will not support any further changes to the code, and the Labor Government has reiterated its pledge not to change Queensland's abortion laws.
However, Premier Anna Bligh, who is a member of EMILY's list (a feminist organisation which raises money to get pro-abortion women elected to parliament), has stated that she would support a private member's bill, if one was proposed, to decriminalise abortion in Queensland.