Outdated abortion laws in New South Wales and Queensland are jeopardising the independence of doctors and causing undue emotional distress to patients — and doctors are speaking out for reform.
While instances of case law offer legal precedents, abortion in NSW and Queensland remains a criminal offence, which means a doctor who provides the termination, those who assist, and the woman herself, may be prosecuted under the Crimes Act 1900 (NSW) or the Criminal Code Act 1899 (Qld).
Professor Heather Douglas from the University of Queensland School of Law and Professor Caroline de Costa from the Department of Obstetrics and Gynaecology at James Cook University examined two recent court cases in Queensland where there was an application of Criminal Code provisions.
In April of 2016, a 12-year-old girl sought an abortion from her local practitioner and was referred to a Queensland public hospital. The girl, her mother and a social worker who knew the family were in favour of the procedure, and a specialist obstetrician believed it appropriate due to significant risks to the patient's physical and mental health.
The specialist also consulted a second obstetrician, who determined that the patient was Gillick competent (a measure of whether the child is able to consent to her own medical treatment, without the need for parental permission or knowledge).
Despite this agreement, the health service administration applied to the Queensland Supreme Court to exercise its parens patriae jurisdiction — the legal doctrine that grants wide powers to the court to protect the welfare of children — to authorise the abortion.
While the judge in the case invoked the parens patriae jurisdiction and the termination took place, the delays, consultations and court process significantly increased the mental trauma for the young woman. The month that had elapsed during this time also extended the gestation period, increasing the possible risks of the procedure.
Douglas and de Costa said that this and a previous case had a number of implications for practitioners and patients, and highlighted the need for overdue reform.
"The decision of the health service to seek direction from the court underlines the fear and uncertainty on the part of doctors and administrators regarding the legality of abortion in Queensland," the doctors said.
"In both cases the discrepancies between the 19th century law and 21st century medical practice have been acutely obvious, and in both cases the emotional damage to the woman concerned has been significant."
Abortion has been decriminalised in the Australian Capital Territory, Victoria and Tasmania, and there is debate in the Northern Territory about appropriate reform. Recently, the Abortion Law Reform (Women's Right to Choose) Amendment Bill, which sought to repeal all criminal offences relating to abortion, was not supported by a Queensland Parliamentary Committee.
In NSW, the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016, which also seeks to decriminalise abortion, has received significant public attention, but is yet to be introduced to parliament.
"It is to be hoped that both states will see abortion decriminalised in the near future and placed in the health regulations, so that practitioners have clear guidance for abortion care," the doctors said.