‘No woman can call herself free who does not control her own body.’
– Margaret Sanger
On 17 October 2018 the Queensland parliament passed a law to decriminalise abortion – 48 years since women began the modern struggle for women’s right to choose.
“It was not until 1970 that Queensland women began their political struggle.
As the movement gathered momentum it involved 22,000 women seeking help with unwanted pregnancies, their families and friends, almost one thousand doctors who referred them, and scores of media people who publicized the great trek south to New South Wales for legal abortion.
The referral of women across the border by a silent medical profession allowed the issue to be ignored by the Queensland politicians and the medical profession as a whole.” – Beryl Holmes, Struggle For Choice, 1982.
Two organisations stand out in this struggle. The Women’s Abortion Rights Campaign (WARC) and Women’s House – for over 40 years, both organisations were in the struggle against religious nutters, against reactionary governments and their police, and against the anti-women laws . In the end, public opinion caught up with these organisations; or more correctly, these organisations aroused the popular will along with other groups like Children by Choice. Of all the movements in the 1970s and 80s the women’s movement was better organised.
Perhaps not since the Queensland Women’s Peace Army in the 1910s and 1920s has a social movement had such wide-ranging effect on the ordinary lives of Queenslanders. Interestingly, both movements were led by progressive socialist women. The former fought against conscription and war, and the latter for women and the right to choose.
Therefore it is with a sense of history that WBT publishes this excerpt from A Woman’s Right to Choose by Rob Pyne in his memoir A Far Northern Life because we would not be where we are now without the efforts of thousands of ordinary women and men who took on the extraordinary struggle for over 40 years and WON!
There are currently before the High Court two matters where demonstrators opposing a woman’s right to choose attended fertility control clinics in Victoria and Tasmania.
Here are the facts of one of those cases as described in the High Court:
‘The appellant was charged on three separate occasions, 5 and 8 September 2014 and 14 April 2015, with offences under s 9(2) of the Act.
The first charge related to the appellant holding placards and handing out leaflets near the entrance to the Specialist Gynaecology Centre in Hobart.
The second charge related to the same conduct, and included a conversation between the appellant and a woman wishing to access the Centre.
The third charge involved the appellant and two other people holding placards outside the Centre and included the appellant failing to comply with a police officer’s direction to leave the immediate area.” – PRESTON v AVERY & ANOR (H2/2018).
Two of the appellants in the High Court attended the Fair Agenda and Young Queenslanders for the Right to Choose rally at Queens Park in Brisbane and paraded similar material before the crowd, both there and in front of parliament. For the most part they went unhindered as they paraded through the crowd.
A woman going alone to a clinic to obtain a termination of an unwanted pregnancy is a personal matter, it is not political as claimed by the appellants in the High Court of Australia. Like Germaine Greer the appellants have confused the personal with the political. People should not be allowed intimidate women to push their religious views upon her as an individual.
I have no idea how the High Court will view the matters raised before it; however, there is no democratic right to bully, harass or intimidate women confronted with a health issue such as the termination of pregnancy.
I disagree with the part of the Termination of Pregnancy bill that says the Queensland Civil Administration Tribunal (QCAT) can be a ‘substituted decision maker‘ in deciding if a woman can have an abortion. Here is what the explanatory note says:
“In Queensland, there is a statutory framework for the appointment of a substitute decision-maker for an adult who does not have the capacity to make their own decisions (including giving consent to medical treatment). Under this framework, termination decisions are required to be consented to by the Queensland Civil and Administrative Tribunal (QCAT).” – Termination of Pregnancy Bill 2018 explanatory memorandum Page 8.
The term ‘lacks capacity‘ gives QCAT unfettered power because the members of QCAT can just say a woman is crazy. The term ‘lacks capacity‘ is a medico-legal term so, according to the explanatory note, QCAT gets to decide what this means.
I think the Explanatory Note is wrong at law.
So I do not understand why the parliament refused to adopt Rob Pyne’s Bill in 2016.
In 2016, there were claims that there were flaws with the way Rob Pyne’s Bill [Health (Abortion Law Reform) Amendment Bill 2016] was drafted. Why didn’t the parliament simply make necessary amendments back then and pass the bill?
The reason the Explanatory Note is wrong at law is because prior to the Termination of Pregnancy bill being passed QCAT had to give consent to an abortion because otherwise it would be illegal. It is the consent of itself that makes it legal. However now that abortion is legal, QCAT’s consent is unnecessary.
Abortion will now be a health decision, not a legal decision. QCAT has no role or authority to make health decisions, it only has authority to appoint a statutory health attorney (SHA) to make such decisions.
A SHA is bound by the Guardianship and Administration Act to restrict the adult’s decisions as little as possible, and if it does, only to protect the adult. A SHA may deny an abortion, but only on the grounds of the women’s health and safety. QCAT would not be involved unless there was an appeal against the SHA’s decision. Other than that, an impaired person has equal rights to access health care.
That’s the theory anyway, but the Attorney General’s department doesn’t seem to take the law into account much.
Not the Church, not the State, women must decide their fate.
17 October 2018
1980 – under siege on the streets
2018 – suffragette colour green (for hope) in the park
2018 – vote in the parliament
A Woman’s Right to Choose
‘No woman can call herself free who does not control her own body.’
– Margaret Sanger
In 2016 I met with a delegation of Cairns women who wanted to have abortion removed from the Queensland Criminal Code. Queensland was the only state in which abortion remained an offence. The Cairns women I met with came from the fields of medicine, sexual health and politics and they made perfect sense. Whatever your thoughts about a woman having an abortion, it was clear in my mind that having the procedure listed as a criminal offence was nether desirable nor helpful.
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 is 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 where 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 her 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 Bill entitled “Abortion Law Reform (A Woman’s Right to Choose Bill)” I gave the following speech:
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, by 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.
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 fetal 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 regarding 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 destigmatising 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. There 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 women 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 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, means 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.
Other Reference Material and Pictures
Photo: The banner photo shows MPs looking up at the cheering gallery and clapping with them on passing the Termination of Pregnancy Bill on 17 October 2018.