Across Australia, Law Reform is Unfinished Business

Australian women do not, in law, have a right to choose in any state other than the ACT, and Victoria (if they are not more than 24 weeks pregnant) and – in a more compromised fashion and only up to 20 weeks pregnancy – Western Australia.

I want to be really clear about this. In most states, including the populous states of Queensland and NSW, women do NOT have a right to choose. They are not lawfully empowered to decide for themselves if they will continue or terminate their pregnancy. Instead, the law places the decision in the hands of one or even two doctors. In all places but Victoria and the ACT, all or part of the law governing abortion is found in the crimes act or criminal code. In Queensland and NSW it appears in a near identical form to that found in an 1861 English statute, reformed long ago in that country. That wording specifies that abortion is a crime punishable by jail.

But wait a minute, you might say. I’ve had an abortion or a friend or cousin or sister has had one. Just there, at the local clinic? So how can abortion be a crime?

There are a number of explanations for this extremely confusing state of affairs, but I will focus on just one, That is the excuses either written into the criminal code itself and/or developed as a consequence of judicial rulings made in cases where a medical practitioner was charged with procuring an unlawful abortion and hauled into court. These excuses tend to focus on the word “unlawfully” in the criminal statute, and go about prescribing the sort of reasons that a person charged with the crime of intending to procure an abortion or knowledgeably supplying the means to someone intending to procure must have to render their action lawful. These vary from state to state but in essence, come down to a claim by the abortion provider that s/he formed a reasonable belief that the abortion was necessary to preserve the woman’s life or her physical or mental health.

One thing worth pointing out is that that a woman charged with unlawful abortion has no recourse to the excuse that I have just described and tends to be known as “the necessity” defence. It is not open to her to say I formed a reasonable belief that the abortion was necessary to preserve my life, my physical or mental health. These excuses are for exclusive benefit of the provider.

Moreover, nowhere in Australia does the law address the refusal of Catholic hospitals to provide abortion services. As the church’s episcopal vicar for life and health, Anthony Fisher, made plain in 2009: ‘'Catholic health-care institutions, whatever legal, financial or other pressure they are under, may not co-operate with abortion."

This situation is disturbing because 21 of the nation’s taxpayer-funded public hospitals are run by Catholic Health Australia. In some rural and regional areas such institutions are the only game in town. Even more sobering when you understand that the refusal of Catholic hospitals to provide abortion services is not something disclosed to women when they arrive in casualty or book in as maternity patients.

I am not blaming Catholic Healthcare providers, who are pretty plain about the religious limits placed on their ability to provide gender egalitarian healthcare. To me, blaming them for this is like blaming a leopard for having spots. To me is seems clear that the onus of responsibility for the shocking abortion laws that prevail in most jurisdictions – shocking in what they contain and fail to contain – lies clearly and squarely with our elected representatives.

All of this goes to the point I wish to make about the most common response that lawmakers give to medical practitioners and abortion rights activists who want the law to change. That response is that it ain’t broke, so why fix it.

The law’s lack of clarity, its paternalism, the profound disconnect between it and community standards about privacy, gender equity and the entitlement of patients to ethical and professional medical care unequivocally demonstrates that it is indeed broke.

The charging of Cairns couple Tegan Leach, 19, and Sergie Brennan, 21, in 2009 with abortion-related crimes was a game changer. Here, at last, was incontrovertible proof that not only did the law of abortion denigrate, patronise and discriminate against Australian women, it also put them and their partners at very real risk of being charged, tried, convicted and sent to jail for undertaking what the World Health Organisation says is “one of the safest medical procedures.”

The Cairns case also exposed how confused Australians of reproductive age such as Leach and Brennan are about the laws of abortion that reign in their state or territory. How many Australians, perhaps even most, mistake the relative availability of safe abortion services as evidence that abortion is no longer a crime?

The Queensland case also shone a desperately needed light on the two-faced, cowed and cowardly nature of Australian politicians when it comes to this critical area of women’s health. The way in which “the nation’s leaders” promise activists the moon before an election, but once they win turn their backs on their female constituents – half of any electorate – in favour of pandering to a tiny fundamentalist minority.

Queensland Premier Anna Bligh ignored the gift-wrapped political opportunities the prosecution of Brennan and Leach offered to spearhead law reform. Bligh worked actively behind the scenes to stymie all attempts by backbenchers to bring forward a private member’s bill to reform the law. Indeed, according to former Labor MP Bonny Barry, the numbers for successful abortion law reform in Queensland were there when she came into the Parliament, and were still there years later, when Bligh took over.

Mercifully, the Cairns couple was acquitted. The verdict was founded on the conclusion that neither of the legal and widely-used pharmaceuticals used in Tegan’s medical abortion were “noxious” to the woman – a key word in the criminal statute. Consequently, the jury concluded her abortion was not unlawful. But what this ruling tells us about what the current law of abortion is in Queensland is anyone’s guess. Some have speculated the judgment removes medical abortion – that procured through pills – from the reach of the criminal code, though surgical abortion remains a crime. Others disagree, including some of the providers who have yet to resume service levels prevailing before the couple were charged.

Such confusion is par for the course. One survey, done in 2004, found that 37 per cent of GPs feel they don’t fully understand the abortion laws that prevail in their jurisdiction. Worse, many of the GPs who think they understand the laws are mistaken. For instance, they don’t believe a GP referral is required when it may be, or they think severe fetal abnormality constitutes grounds for lawful abortion in their jurisdiction when it doesn’t. The lack of clarity of much abortion law sees doctors regularly misinforming women about their capacity to access services and is patently unfair to the women and medical practitioners who – as the Leach and Brennan case shows – face a very real risk of prosecution if they get it wrong.

In conclusion and not to put too fine a point on it, abortion law in much of Australia is a real shlemozzle.

What I hope all this has convinced you of that most of the laws in this country on abortion should be repealed, pulled out of the criminal law and regulated like all other medical procedures.