Women’s Right to Choose
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 a criminal offence. The Cairns women I met with came from the fields of medicine, sexual health and politics and they made perfect sense. It was clear in my mind that having the procedure listed as a criminal offence was neither desirable or respectful of women. In the words of American birth control activist and sex educator Margaret Sanger, “No woman can call herself free who does not control her own body.”
I was keen to help the women in getting termination 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 extremist 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-year-old girl in central Queensland who had not been able to access a timely abortion it made my blood boil. This 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 was 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, so that it could be determined between women and their chosen medical professional.
I subsequently moved two Bills, one to have abortion removed from the Criminal Code and another to have the procedure of abortion regulated in the Queensland Health Act. When moving my first Bill (The Abortion Law Reform ‘A Woman’s Right to Choose’ Bill), I made the following comments:
Abortion Law Reform (A Woman’s Right to Choose Bill)
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 These provisions are archaic, outdated and have no place in a modern, liberal democracy.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. 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.
My first Bill was criticised by religious extremists on the basis that it did not provide for the regulation of abortion. However it had always been my intention to move a second Bill providing for the procedure in The Health Act. I made the following comments when moving this second Bill.
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 de-stigmatising 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 one 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 of the Bill 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, an 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.
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. It was clear 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 abortion reform. I wanted to make the most of my leverage before considering withdrawal of 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 to moving a Bill in the next Parliament, should they retain government. The pact was sealed. I would withdraw my Bills and they would honour their commitment. We all attended a media conference confirming this agreement. Abortion law reform had been secured, as long as the ALP were able to win the upcoming state election.
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