Chapter 8

A Woman’s Right to Choose

No woman can call herself free who does not control her own body.
– Margaret Sanger

In 2016 I met with a delegation of Cairns women who wanted to have abortion removed from the Queensland Criminal Code. Queensland was one of only two states in which abortion remained an offence.

The Cairns women I met with came from the fields of medicine, sexual health and politics and they made perfect sense. Whatever one’s thoughts about a woman having an abortion, it was clear in my mind that having the procedure listed as a criminal offence was neither desirable nor helpful.

I was keen to help the women in getting terminations out of the Criminal Code. However, there was a reason there had been no attempt to change the abortion laws in Queensland for over 100 years.

With religious groups so strongly opposed to change, any politician that pushed pro-choice laws, would do so at their own peril.

Despite this, when I read about the case of a pregnant 12-yearold girl in central Queensland who had not been able to access a timely abortion it made my blood boil.

The 12-year-old girl was in state care. She did not want to proceed with her pregnancy and was supported by her parents in her decision to terminate. Despite this, she was forced to wait weeks, because abortion is in the Criminal Code. Obviously, her pregnancy progressed during this time, before she had the termination. It was a shocking experience for a young girl to be forced to go through.

The thought of women of any age, including those who have been victims of incest and rape, not being able to access an abortion was something I found appalling. Whether it was because they had no money, lived in remote areas, or were in state care, these women should always have the ‘right to choose’ what to do with their bodies. It was abundantly clear that this medical procedure should be removed from the Criminal Code.

I subsequently moved a Bill to have abortion completely removed from the Criminal Code. In moving the Abortion Law Reform (A Woman’s Right to Choose) Bill, I made the following comments:

This Bill removes sections 224, 225 and 226 from the Criminal Code. These provisions are archaic, outdated and have no place in a modern, liberal democracy. It states that any person who carries out, or assists with, an abortion may be liable to criminal prosecution, including the woman herself.

The current law in Queensland is causing great hardship and personal suffering. Children by Choice manager Amanda Bradley told the Brisbane Times: “We get reports of self-abortion, some women we speak to say if I can’t get an abortion, I will do it myself.” Children by Choice received 118 contacts relating to self-abortion or threats of self-abortion in the past year. This bill would not only help those women, but Queensland doctors.

Caroline de Costa
Caroline de Costa

Dr, Carolyn De Costa told the Cairns Post that Queensland doctors continued providing abortions despite risking prosecution under ambiguous laws. She said, “It’s done knowing that there is case law to protect you, if you are charged — but also knowing that it’s unlawful. This is the only health procedure that is dealt with like this in criminal legislation. It’s way, way out of date and belongs in the 19th century. We’re practising medicine in the 21st century.”

This Bill will protect vulnerable Queensland women and the doctors that are risking prosecution to assist them. The ridiculous nature of the current situation was on public display in 2009-10, when a Cairns couple was charged under the Queensland legislation. Although they were acquitted after a jury trial, they were subject to 18 months of glaring negative publicity.

A Cairns District Court jury took less than an hour to find Tegan Simone Leach, 21, and her partner Sergie Brennan not guilty of charges of procuring an abortion and supplying drugs to procure an abortion following a three-day trial. The couple were charged after police found empty blister packets of abortion drugs RU486 and Misoprostol during a search of their home on an unrelated matter in February last year. They admitted in police interviews that Ms Leach took the pills, imported by Mr Brennan’s family in the Ukraine, because they were not ready to have a child.

When you have nearly a third of women who will seek an abortion over their lifetime, it is about time our laws reflected modern values that trust and empower women to make decisions about their own bodies. I commend the Bill to the House.

The National Debate

Myself and others were also conscious of the national political scene. At this time there were only two states in which abortion remained a crime, Queensland and New South Wales. If we could get terminations out of the Criminal Code in Queensland, New South Wales would surely not be able to sustain being the only jurisdiction with abortion outlawed.

Indeed, we commenced working with a member of the New South Wales Parliament, Mehreen Faruqi. A woman’s right to choose was a real passion for Mehreen and she took a strong leadership position on the issue.

Mehreen even travelled to Cairns at the invitation of Pro Choice Cairns to attend a public forum at James Cook University.

Text Box: Dr. Caroline de Costa (1947 - Caroline de Costa was born in Sydney, where she began studying medicine in 1963 at the University of Sydney, before dropping out to travel after one year. She re-commenced her undergraduate medical studies in Dublin, at the Royal College of Surgeons in Ireland, in 1967. In 1973 she moved to Papua New Guinea to complete a residency in Port Moresby General Hospital, after which she returned to Ireland to undertake specialist training in obstetrics and gynaecology. She completed her Diploma with the Royal College of Obstetricians and Gynaecologists (RCOG) in 1978, became a fellow of the Royal College of Physicians and Surgeons of Glasgow in 1980, a fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists in 1981, and a fellow of the Royal College of Obstetricians and Gynaecologists in 1990. ment is 2004. In 1994, she moved to Cairns where she continued her clinical practice until 2013. From 1994 to 2009 de Costa was part of the outreach specialist obstetric and gynaecological service established by Professor Michael Humphrey through Cairns Base Hospital, providing services throughout Far North Queensland. De Costa is the author of around 90 research articles, and a number of textbooks. Her principal areas of research have been in reduction of foetal alcohol syndrome in children of indigenous women, vitamin D levels requirements of pregnant women in Far North Queensland, as well as birth by caesarean section. She completed a PhD at the University of Sydney under the supervision of Dr Hans Pol researching the history of caesarean section births. Her thesis became the subject of a book, Hail Caesar: Why one in three Australian babies are born by Caesarean sections, published in 2008. De Costa began her work in activism for reproductive rights during her undergraduate medical studies in Ireland, including taking part in the contraceptive train in May 1971 in which members of the Irish Women's Liberation Movement took a train to Belfast, Northern Ireland, to purchase contraceptives and bring them back to Ireland. As part of her specialist training in Ireland, de Costa worked at the Irish Family Planning Association (IFPA) clinics and she notes that she "often travelled back from England with a dozen intrauterine devices discreetly concealed in my bags for IFPA doctors." In 2005, de Costa became aware of the advantages of the drug mifepristone, a drug which brings about medical abortion, and which was not available in Australia at that time, despite being available in Europe from as early as 1988 and the US since 2000. She wrote an article in the Medical Journal of Australia advocating for its introduction in Australia, noting "Availability of this drug in Australia might largely overcome many of the inequities of access to abortion, and is critical for many women in rural areas and women in some ethnic groups whose access to surgical abortion is limited." Caroline has 42 years’ experience in the practice of obstetrics and 40 years in the area of obstetrics research, in particular obstetric epidemiology. She was a champion of abortion law reform and a key advocate for women who deserves some credit for for the reforms finally passed by the Queensland parliament in 2018.

 

Getting the Numbers

It was my preference to have abortion completely removed from the criminal code, leaving the procedure to be a matter purely between a woman and her medical practitioner.  Unfortunately, it became clear this position was not favoured by a majority of MP’s.

A big part of the problem was the misinformation being spread by churches and groups such as ‘Cherish Life’, which lent itself to a massive disinformation campaign on social media.

The spreading of ridiculous ideas, such as women with late term pregnancies deciding to terminate so that they could afford their netflix subscription. Just made up bullshit, yet some people believed it.  There were even memes going around saying the change would lead to ‘9- month abortions. Of course, there is no such procedure for what would amount to a form of infanticide.  When I asked Doctor De Costa about it she said, “I don’t know what they could possibly mean. The only procedure that happens at nine months is child birth”.

I needed to include extra legislative restrictions around the procedure to get a majority of MP’s to come down the right to choose pathway with me.  As a result, I drafted another Bill to have the procedure of abortion regulated in the Queensland Health Act. When moving the Bill I made the following comments:

Health (Abortion Law Reform) Amendment Bill 2016

I moved a private member’s bill to remove all reference to abortion from the criminal code. It is my hope and belief that this will remove the obstacle to vulnerable women accessing the care they need (and this may include termination of pregnancy). It will reduce unnecessary assessments and protocol in the care for women with foetal abnormalities and allow psychiatrists to be involved in mental health care and not legal psych evaluations.

Private clinics will still be restricted by the maximum gestational age they are credentialed to perform terminations, and the skills of the proceduralists. Public hospitals are still very unlikely to provide psychosocial termination over 20 weeks (perhaps in very exceptional circumstances of unremitting mental illness) and will certainly only perform terminations over 24 weeks for foetal abnormalities. It is likely that the Qld Maternity and Neonatal Therapeutic Termination of Pregnancy Clinical Guidelines will still be the process adhered to for assessment and management, but with reference to the indication for termination meeting ethical rather than legal requirements.

Removing termination of pregnancy from the criminal code will place abortion where it should be: in the hands of women, their health care providers and support services. The responsibility for their wellbeing is, and should be, a medical and social care issue, not a legal one.

Concerns that the amendment will encourage social terminations up to 9 months are unfounded and nonsensical. There is simply no medical practitioner who could or would offer this under current ethical and regulatory guidelines

The current law doesn’t prevent termination of pregnancy occurring in Queensland, but it certainly contributes to both preventing some women with significant needs from being cared for appropriately and shifting care to the private sector where allied health and social services are simply not available.

Blocking access to abortion care also blocks access to other care services. Subjecting women to multiple appointments with different doctors and then telling them that they don’t know their own needs – effectively treating their actions as criminal – usually results in the woman feeling victimized and marginalized and unlikely to attend for care services even if they are offered. The opportunity to actively support and intervene in the person’s life in a positive manner is lost. 

Decriminalising abortion is the first step in acknowledging the medical and psychosocial welfare needs of a significant proportion of pregnant women in Queensland, and destigmatising a relevant pregnancy option..

Women requesting and undergoing termination of pregnancy are not criminals needing to prove their innocence, they are women in need.

The Bill will improve clarity for health professionals and patients in the area of medical termination of pregnancy. Their currently exists a lack of clarity around what point during gestation and for what reasons a termination of pregnancy may be performed in Queensland. The Bill seeks to clarify when care can be imparted and to avoid prolonged approval and ethics processes (not conducted for the benefit of patients’ wellbeing but to substantiate lawfulness).

Section 20 provides that only qualified health practitioners may perform an abortion. It also provides that a doctor and a registered nurse are a qualified health practitioner for performing an abortion by administering a drug at the written direction of a doctor.

Section 21 addresses Abortion on woman more than 24 weeks pregnant. It states a doctor may perform an abortion, or direct a registered nurse to perform an abortion by administering a drug, on a woman who is more than 24 weeks pregnant only if the doctor reasonably believes the continuation of the woman’s pregnancy would involve greater risk of injury to the physical or mental health of the woman than if the pregnancy were terminated; and has consulted at least 1 other doctor who also believes the continuation of the woman’s pregnancy would involve greater risk of injury to the physical or mental health of the woman than if the pregnancy were terminated.

Section 22 concerns the duty to perform or assist in abortion. It says no-one is under a duty to perform or assist in performing an abortion. A person is entitled to refuse to assist in performing an abortion. However, a doctor has a duty to perform, and a registered nurse has a duty to assist a doctor in the performance of, an abortion on a woman in an emergency if the abortion is necessary to save the life of, or to prevent a serious physical injury to, the woman.

Division 3 concerns patient protection. Under Section 23 Declarations for abortion facility The Minister must, by written notice, declare an area around an abortion facility to be a protected area for the facility. An area declared to be protected area must be, at least 50m at any point from the abortion facility; and sufficient to ensure the privacy and unimpeded access for anyone entering, trying to enter or leaving the abortion facility; and no bigger than necessary.

Section 24 deals with Prohibited behaviour in relation to abortion facility. It says “A person in a protected area for an abortion facility must not engage in prohibited behaviour.” Prohibited behaviour, in relation to an abortion facility, means harassment, hindering, intimidation, interference with, threatening or obstruction of a person, including by capturing images of the person, intended to stop the person from entering the facility; or having or performing an abortion in the facility; or an act that can be seen or heard by a person in the protected period for the facility, and intended to stop a person from entering the facility. The protected period, for an abortion facility, is when the Minister has declared a period to be the protected period for the facility or otherwise the period between 7am and 6pm on each day the facility is open.

Section 25 says “A person must not publish images of another person entering or leaving, or trying to enter or leave, an abortion facility, without the other person’s consent; and with the intention of stopping a person from having or performing an abortion.

It is a better time than ever to end the uncertainty surrounding medical termination of pregnancy.

Securing a Reform Outcome

The evening before my Bills were to come to Parliament for a second reading and a vote, I received several calls from senior members of the Parliamentary ALP. They were desperate that I withdraw my Bills.

Firstly, they didn’t want to lose two sitting days to debate the issue and secondly, they did not want to see the Bills voted down thus causing a split in their ranks.

Some ALP MPs would vote against the Bills, simply on the basis that I was the one moving them, citing deficiencies in the drafting, which is a ridiculous reason, because MPs don’t draft Bills (the Parliamentary Council staff do).

The LNP had also said that to a person, they would be voting against the abortion reform. I wanted to make the most of my leverage before agreeing to withdraw my Bills, so I was keen to hear what the ALP had to offer.

It emerged that the Attorney General Yvette D’Ath and the Deputy Premier Jackie Trad were prepared to front the media and commit to referring the matter to the Law Reform Commission and commit to moving a Bill in the next Parliament, should they retain government. I agreed to this, knowing it was the only way we would make the change.

I have been around politics long enough to know you can never rely on any undertaking given by a politician in private. With this in mind I agreed to attend a press conference with the Attorney-General and Deputy Premier. The next day before television cameras they both publicly stated that a re-elected Palaszczuk Government would proceed with abortion law reform, with guidance from the Queensland Law Reform Commission.

Once the two senior labour figures had committed to abortion law reform, I knew it was simply a matter of the ALP winning the next state election for the change to be legislated. I took the safe bet that the ALP would be re-elected in Queensland, thanks to an unpopular LNP Government in Canberra.

I was proved correct on both counts and within 18 months a newly elected Palaszczuk Government had passed a law decriminalising abortion in Queensland. The new laws were almost identical to the reforms I had proposed.

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The Fight for the Underdog