Where Rights, Medicine and Law Collide

Last year an Australian woman undertook a medical procedure. This week she and her boyfriend will face court because of it, charged with a crime. If found guilty, the 19-year-old and her 21-year-old boyfriend could get 10 years’ jail.

The names of the couple don’t matter. They could be any one of us. The prosecution is taking place in Australia for the crime of abortion.

That in 2009 an Australian citizen can be found guilty of undertaking a medical procedure and face jail is a scandal. A scandal that neither politicians in Queensland (where this week’s prosecution will take place) or in NSW (where a doctor was convicted of the crime of unlawful abortion in 2006) intend to do anything about. Not unless they are forced to take action by a resolute medical profession and ordinary folk like you and me.

Abortion is in the Crimes Act in both NSW and Queensland. The statutes are roughly similar, making it a crime for a woman to seek an abortion and for anyone else to help her procure one.

This is not the case elsewhere. In 2002 the ACT removed abortion from the Crimes Act and last year Victoria did the same. Politicians in NSW and Queensland have been ignoring advice that they clarify, modernise and liberalise abortion law for years. This includes recommendations made in a report by the Standing Committee of Attorneys-General and in a Queensland report on women and the criminal code.

Some doctors have had enough. Respected Cairns gynaecologist Dr Caroline de Costa and her colleagues are now refusing to provide safe medical abortions to women for fear they, or their patients, will wind up in jail. If other providers in Queensland, and across the border in NSW, are smart, they will follow suit. Because, as this week’s court case proves, whispered assurances by craven politicians that doctors have nothing to fear from antiquated, conservative and unclear laws are mistaken.

For their own peace of mind and the long-term best interest of their patients, health-care workers must insist that politicians reform the law.

Determined and resolute doctors can compel reluctant politicians to act. They have done it before. In 1998 in Western Australia abortion was in the criminal code and two doctors were charged. Political leaders insisted – in the face of obvious evidence to the contrary – that the law didn’t need reform. But when providers at Perth’s main hospital downed tools, refusing to provide terminations in all but emergency situations, and two women wound up in casualty from botched attempts to self-abort less than 48 hours later, the government was forced to act.

Doctors can’t be expected to agitate on their own. Striking doctors in Western Australia had a multitude standing behind them. Supporters included courageous Labor, Liberal and minor party politicians, the AMA, family planning and legal advocacy organisations, progressive Christian groups, a well-organised and dedicated group of grassroots activists and the people of Western Australia, 82 per cent of whom told pollsters they thought abortion should be legal.

Such coalitions are only starting to form in NSW and Queensland. Only time will tell if they will be successful.

If not, the other chance for law reform will be if the NSW Government looks to history and makes a magnanimous gesture. If the Premier referred the issue to the NSW Law Reform Commission, then acted on its recommendations before the next election, women choosing abortion in NSW might finally lose the “criminal” tag.

Publication history

Where Rights, Medicine and Law Collide  Sunday Sun-Herald (Sydney)