Bills will bring Australia's abortion laws out of the 19th century

MPs unite in Queensland and New South Wales to reform outdated abortion laws, write Caroline de Costa, professor of obstetrics and gynaecology, and Heather Douglas, professor of criminal law.

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Pro-choice protesters outside Queensland’s Parliament House

This week has already brought more activity in the area of abortion law reform in both Queensland and NSW than in the previous century, and there is more to come.

In Queensland, former ALP and now independent state Parliament member Rob Pyne on Monday introduced a bill to decriminalise abortion in the state. Currently sections 224, 225 and 226 of the 1899 Criminal Code make abortion a crime for the person performing the abortion, the woman herself, and any person assisting. The bill is very much to the point: these three sections are to be repealed. If the bill eventually passes, abortion will be regulated, like any other medical procedure, in the health legislation, where it belongs.

The bill was introduced to Parliament and referred on Tuesday to the Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee for consideration. This will provide an opportunity for consultation on the appropriate approach for the Queensland reforms.

First elected to state Parliament in 2015, Pyne is very much his own man. Undeterred by quadriplegia following a diving accident at the age of 23, he gained university degrees in arts and law and worked in disability services before entering local government politics in 2008. He made clear from the beginning of his parliamentary term that his personal mission in Parliament was to represent his constituents. He was particularly incensed by the 2010 prosecution under the archaic Queensland abortion laws of a young Cairns couple in the District Court. Though acquitted, they faced 18 months of glaring publicity.

Pyne was further motivated by the recent case of a 12-year-old being forced by hospital administrators to seek permission from the Queensland Supreme Court for an abortion, despite the procedure being supported by her parents and the doctors involved. Failure of the Palaszczuk cabinet to endorse his move to bring a Labor bill to repeal abortion laws was one of the reasons for his resignation from the party, and he has wasted little time in making good his word to bring a private member’s bill.

Before the bill was introduced to Parliament, it was discussed at a Brisbane rally organised by student volunteers from Pro Choice Queensland on Tuesday morning. Politicians, media and about 200 others turned out in support. Rob Pyne noted that the bill was just the beginning of a process. Jackie Trad, Labor member for South Brisbane and Deputy Premier, spoke in support of the bill, observing that she was “unashamedly pro-choice”.

Other Queensland Labor ministers, including Shannon Fentiman, Stirling Hinchliffe, Steven Miles and Leanne Donaldson, were also in attendance to support legal change in Queensland. Larissa Waters and other members of the Greens gave their strong support for the decriminalisation of abortion.

One of the main concerns in response to the bill in the media is whether there should be some special process regarding so-called “later term” abortions. It should be remembered that the overwhelming majority of abortions (94%) take place in the first 14 weeks of the pregnancy, and 5% between 14 and 20 weeks. The small number of women who choose termination after 20 weeks usually do so in circumstances where there is severe maternal physical or mental illness, late diagnosis of severe fetal abnormality, sexual assault or other exacerbating circumstances.

Both the LNP and the Labor Party have agreed that their members can have a conscience vote on the issue. This means that whatever proposal the health committee comes up with, members of Parliament will vote according to their conscience.

Meanwhile, in New South Wales, upper house MP Dr Mehreen Faruqi has released for public comment a draft of the bill she foreshadowed last year to decriminalise abortion in NSW, and to establish access zones around abortion clinics. Such zones are now mandated by law in Tasmania, Victoria and the ACT; in NSW, clients visiting clinics have been exposed to extraordinary harassment — especially in Albury and Surry Hills in Sydney.

Abortion in NSW remains in the Crimes Act 1900 — sections 82, 83 and 84 — in wording very similar to that of the Queensland Criminal Code. In NSW, abortion is a crime for both the woman and her doctor although case law has found that an abortion may be lawfully performed when the doctor believes a woman’s physical and/or mental health is in serious danger. Unlike Queensland, in NSW, social, economic and medical factors may be taken into account.

Faruqi and her staff have worked long and hard consulting medical and legal professionals, women’s groups and other stakeholders prior to releasing the public draft. They have also done their own research into public opinion on changes to abortion law, commissioning a survey from Lonergan Research across 1000 participants representative in age, gender, residence, education, religious affiliation and employment to the population of NSW.

The results are compelling: 24% of respondents were unaware that abortion remains a crime in NSW, however 73% supported decriminalization of the law. Furthermore, 87% of respondents believed a woman should be able to obtain an abortion in the state, with over half (58%) believing that this should be when the woman wanted it.

Faruqi is anticipating debate on her bill towards the middle of the year, and has been seeking cross-party support, so far largely without success — at least overtly. Now ALP upper house member Penny Sharpe has announced her plan to table a private member’s bill this Thursday, with the sole aim of establishing access zones around abortion clinics in NSW.

Such legislation, while worthy in itself, does not go far enough when the practice of abortion within the clinics remains unlawful. It is to be hoped that wide support will be forthcoming across party lines, similar to that which led to change in Victoria and Tasmania. Indeed, already now in Queensland senior members of the ALP government have expressed strong support for Rob Pyne’s bill.

All Australian jurisdictions apart from NSW and Queensland have managed to decriminalise or substantially reform abortion law. Although abortions are provided in Queensland and NSW, women and their doctors live with legal uncertainty and this results in many doctors being reluctant to provide abortion. In turn this creates difficulties of access for many women, especially those in rural and remote areas of these two large states. Decriminalisation of abortion law in both states is urgently required to bring the 19th century laws into step with 21st century medical practice and social attitudes.

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