Right To Choose, Right To Voice
For countless of generations, society has placed their own opinions on the issue of abortion. The majority of the society have declared abortion as unethical, unjust and inequitable, whilst the government continuously maintains the abortion provisions in the Queensland legislation unchanged. This controversial issue positions many medical doctors who procure the abortion as criminals since terminating a women’s pregnancy is in violation of laws in Queensland. This essay will thoroughly examine the effectiveness of the current legislation in place associated with abortion and conclude with appropriate reforms reflecting societal values and beliefs, aimed at addressing the inadequate protection of women’s reproductive rights and medical practitioners who procure the abortion.
Most states and territories have currently legalised abortions in Australia, although each state complies with different policies on how late term abortions can be carried out. In Queensland and New South Wales, many women face legal difficulties with the government in attempt of accessing abortion services, given that it is a crime to terminate a pregnancy without legitimate justification. Abortion in legal terms, is the premature termination of a pregnancy via an artificial or surgical procedure to destroy or remove a fetus (World Health Organisation, 2016). Although, there is on no account the exact number of abortions each year in Queensland specified, it is anticipated to be somewhere between 10,000 and 14,000 abortions each year. and that half of all pregnancies in Australia are terminated and half of those are unplanned (Children by Choice, 2012). Abortion remains in the Criminal Code Act in full in Queensland, contained in three primary sections, 224, 225 and 226, declaring it a crime to perform an abortion, access an abortion, or supply drugs to be used in an abortion and for a medical professional to carry out the procedure. Section 224 of the Queensland Criminal Code 1899 (Qld) explicitly states,
“Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.”
However, because of precedent cases in Queensland (R v Bayliss and Cullen, 1985), it has been established that abortion is legal if the birth of the child or the pregnancy will greatly impact the mother’s physical, mental, or emotional health. To expand the limits of abortion, any person who unlawfully supplies to procure the miscarriage of a women can be liable to imprisonment up to 3 years if discovered guilty, outlined in Section 226 of the Queensland Criminal Code 1899 (Qld);
“Supplying drugs or instruments to procure abortion. Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.”
Nonetheless, Section 282 of the Criminal Code Act 1899 was amended under the same legislation in September 2009, providing a defence for doctors who are charged for procuring an abortion they deem for the ‘preservation of the mother’s life’ (Brisbane Times, 2016). Section 282 further states, ‘A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill a surgical operation on or medical treatment of; a person or unborn child for the patient’s benefit; or a person or unborn child to preserve the mother’s life’. Under the current state law, an abortion becomes legally permitted when conducted by a medical practitioner who believes continuing the pregnancy will prevent serious threat to the woman’s life or the physical or mental health of the patient. (Children by Choice, 2012).
There are two main types of abortion procedures undertaken; medical and surgical abortion and are both used widely throughout Australia. Surgical abortion is one of the most frequently operated and safest surgical procedures within Australia, with approximately 80,000 women undergoing this procedure each year (Marie Stopes AU, 2016). The medical practitioner inserts a tiny tube able to enter the uterus to remove the substances and the lining of the uterus. On the other hand, medical abortion has been recently more accessible in Australia, being as a non-surgical abortion option which is available to most women up to 9 weeks gestation. The drug RU486 is a form of contraception, though unlike other contraception pills, can be distributed by medical doctors to terminate the pregnancy even after it has begun (RU486 Facts, 2013). This popular medication can be consumed for abortions, however, under the Queensland’s legislation the drug becomes illegal for use to terminate a pregnancy.
The abortion laws create various arguments within the legislation causing concern amongst the wider community as they are being labelled ambiguous and outdated in Queensland. A major legal issue with abortion laws in Queensland, is the restriction placed upon women by not allowing them to make individual choices of their bodies, for instance the termination of a pregnancy. In 2009, Auspoll conducted a survey with over 1000 Queenslanders revealing that 4 out of 5 respondents voted for abortion to become legal in Queensland. Furthermore, The Australian Survey of Social Attitudes found that 81% of the partakers believed an abortion should be decided by the women carrying the unborn child (AuSSA, 2010). These surveys demonstrate that Australians intend to change the legislation, so that women are free to choose if they willing to undertake an abortion or not. In Australia, Queensland and NSW are the only states that still maintain criminal sanctions against abortion. Whilst in Northern Territory, Victoria, Western Australia and Tasmania, abortion is legal up to a certain time period, and is still legal in both Victoria and Tasmania if a woman can obtain two doctor’s approval (Children by Choice, 2012). In the Australia Capital Territory, abortion is lawful if it is authorised by a medical doctor, and in South Australia, abortion is legal if two doctors agree that a woman’s physical and/or mental health is endangered by the pregnancy (Children by Choice, 2012). Additionally, abortion is legally permitted in Queensland under the circumstances that a woman’s health, physical or mental, is in serious risk, likewise in NSW, economic and social factors are also considered. The current Queensland abortion laws limit women’s rights to have their own individual choice, contrary to other Australian states and territories where women’s rights to freely choose to have an abortion are protected to some degree creating inconsistency throughout Australia.
The question of when an abortion is lawful in Queensland is still very unclear and ambiguous, creating another issue for doctors to be very restrained on providing abortion or information to patients. Under the Queensland Criminal Code Act 1899 (Qld), the medical practitioner and anybody else supporting the woman’s abortion are liable to be prosecuted anytime. A high-profile case related to this issue was the R v Bayliss and Cullen 1985 case, where two medical doctors were prosecuted for procuring illegal abortions contrary to section 224 of the Queensland Criminal Code 1899. The Greenslopes control clinic had over 20,000 women seeking terminations which were being treated by both doctor Bayliss and Cullen (Children by Choice, 2012). However, the high court declared the files of each patient to be returned after being raided by the police, as the warrant search against the clinic was considered invalid. The director of the Prosecutions then publicly requested to any of the patients unsatisfied to come forward. A 21-year-old mother complained about a termination of a pregnancy that was performed at the clinic, resulting with Doctor Bayliss and Cullen to be recharged under Section 224 of the Queensland Criminal Code 1899 for procuring an illegal abortion. After the conclusion of the trial, both doctors were not guilty on both accounts, as Judge McGuire ruled that an abortion is considered lawful when performed to ‘preserve a woman from a serious danger to her life or physical or mental health (Children by Choice, 2012).
Due to Queensland’s legislation, the production and consumption of medication RU486 is prohibited, forcing many women pursing abortion to go interstate yet creating another obstacle for women in remote areas. The drug is not available for use after 9 weeks of gestation, yet adding concern of the mother’s emotional state. Medical abortion does not technically fall under surgical abortion indicating the lack of clarity within Section 282 of the Queensland Criminal Code 1899. These laws contradict each other, making abortion laws in Queensland very complex and unclear, violating another principle of an effective law.
Abortion laws in Queensland are currently under question because of its applicability to meet society’s need, which many claims no longer hold any social value. Whilst the abortion laws have existed in Queensland’s legislation since 1899, many believe it is essential for it to change and be reformed to reflect societal values and beliefs. The Queensland Criminal Code 1899 (Qld) values the right of the unborn child’s life and supports pro-life advocates through criminalising abortion. The ostensible reason to keeping abortion illegal in Queensland, is that doing so would minimize the number of abortions every year. However, changing and reforming these laws will only allow the legislation to have a single purpose, according to the World Health Organisation, “abortion does not end when it is illegal”. The results only become worse, spurring women to pursue potentially lethal abortions (Newyorker, 2016). In Queensland 2009, Medicare’s records revealed that 15,500 abortions occurred in just that year, yet abortion is illegal in Queensland, showing how easily the law can be manipulated (Children by Choice, 2012). Legalising abortion will not increase the number of abortions but will instead prevent innocent women becoming vulnerable to prosecution. Following one national law will decrease the numbers of people who travel interstate to receive an abortion, as well as clearing the inconsistency within Queensland’s legislation. This will also assist medical doctors who are vulnerable to being prosecuted, since the abortion laws are unclear and ambiguous on when doctors perform abortions in Queensland, however Section 282 of the Criminal Code Act 1899 (Qld) offers some protection for doctors who are charged for procuring illegal abortions. Therefore, due to the number of contradictions, exceptions and interpretations within the law allowing for the legislation of abortion for unfortunate and helpless situations, Queensland legislation should be reformed to legalise abortion. However, restrictions should be applied to determine whether the reason to abort is justified and that medical doctors who perform abortion are reasonably justified to preserve the mother’s life.
In conclusion, the main sections 224 and 226 of the Criminal Code Act should be reformed and repealed to assure women’s reproductive rights and medical practitioners are appropriately protected in Queensland. The government continuously regulating to abortion through its criminal legislation will only serve to contradict women’s authority to decide as individuals. Subsequently, to guarantee women are given the autonomy on making self-decisions affecting their own lives, abortion legislation and regulations should primarily refocus on protecting women’s well-being and indorsing adoption instead of killing the unborn child and facing criminalisation and punishment as the single resolution.
Rene Law
