Changes to abortion laws

IN MID OCTOBER, the Queensland Government voted to support “Termination of Pregnancy Bill 2018”, which takes abortion out of the criminal code and allows a woman to terminate her pregnancy on request up to 22 weeks.

After 22 weeks’ gestation, access to abortion would be restricted. The Bill stipulates that an abortion may only take place after 22 weeks if the medical practitioner performing the abortion has consulted with a second medical practitioner and both agree that “in all the circumstances” the termination should be performed. The practitioners must consider:

1. all relevant medical circumstances;
2. the woman’s current and future physical, psychological and social circumstances;
3. the professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination.

In an emergency, a medical practitioner may perform a termination on a woman who is more than 22 weeks pregnant, if the medical practitioner considers it is necessary to perform the termination to save the woman’s life or the life of another unborn child.

The Bill also establishes a “safe access zone” of 150 metres around clinics to prevent protestors from approaching women seeking terminations.

Abortion laws vary across Australia’s States and Territories. In Queensland, prior to the historic reforms, abortion was specified in the 1899 criminal code. The code made it a crime for a woman or other person to attempt to procure a miscarriage or to supply “anything whatever” intended to be used to procure a miscarriage. Under the former rule, anyone who unlawfully performed an abortion in Queensland could be jailed for up to 14 years. However, there was a defence under section 282 of the code that made abortion legally available prior to this year’s vote.

The section stated: “A person is not criminally responsible if performing the operation or providing the medical treatment is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.”
The Queensland Law Reform Commission’s June 2018 report found that a total of 10,421 terminations were performed in Queensland public hospitals and licensed private health facilities in 2016, and that 99% were performed prior to 20 weeks’ gestation.

Queensland follows the other States and Territories in decriminalising abortion. This leaves NSW as the only State in Australia where abortion remains criminalised (with exceptions).

Abortion is a crime in NSW under sections 82, 83, and 84 of the NSW Crimes Act. It carries a penalty of 10 years maximum but is only a crime if performed unlawfully.

Abortions were made legal in NSW by an interpretation of the Crimes Act by the NSW district court in 1971. This ruling allows doctors to approve an abortion if a woman’s physical or mental health is in danger, and taking into account social, economic or other medical factors.

The Australian and New Zealand Journal of Public Health’s survey of more than 1000 people in NSW, which was published September 2018, found 73% thought abortion should be decriminalised and regulated as a healthcare service. Greens MP Mehreen Faruqi introduced a bill to decriminalise abortion in NSW last year, but it was voted down in NSW Parliament.

WHAT ABOUT THE AMA?

Prior to the vote, Queensland AMA supported the move to decriminalise abortion. AMAQ’s submission to the Health, Communities, Disability Services and Family Violence Prevention Committee’s inquiry into the Termination of Pregnancy Bill 2018 stated: “Queensland’s current laws, which criminalise terminations of pregnancy are a barrier to a doctor’s first duty – best patient care. This bill, should it become law, would provide legal certainty to Queensland doctors when it comes to performing terminations of pregnancy and patients who seek termination from doctors.”

The AMA’s Position Statement “Reproductive Health and Reproductive Technology” 1998 (Revised 2005) states that the AMA respects the rights of doctors to hold differing views regarding termination of pregnancy.

It also recommends that where the law permits termination of pregnancy, the procedure and the associated anaesthesia should, as with any other medical intervention, be performed by appropriately trained medical practitioners, in premises approved by a recognised health standards authority.

The AMA supports that where the law permits termination of pregnancy, non-surgical forms of termination (such as RU486/mifepristone) should be made available as an alternative to surgical abortion in cases where they are medically deemed to be the safest and most appropriate option based on the appropriate clinical assessment.

It also states that it is the doctor’s responsibility to provide patients with information regarding the potential health risks and psychological consequences which can arise from continuation of and termination of pregnancy.