Queensland Abortion Laws

Introduction

Queensland abortion laws are, as described by various lobby groups, “inadequate, unclear and outdated”. By maintaining the abortion provisions in the Queensland Criminal Code Act (1899) , the threat of criminal conviction hangs over the heads of the doctors, medical staff, women and their partners if they should participate in terminating the women’s pregnancy. According to Dr. Caroline de Costa (a University Lecturer specialising in Gynaecology) abortions procedures (when using RU486) are one of the safest and common procedures in the Queensland (Fraser, 2009). Thus the government should flow over jurisdictions (i.e. Victoria or Western Australia) in reviewing and amending legislation regarding abortion to create clear, unambiguous legislation that maintains a suitable balance between preserving a woman’s reproductive rights and respecting the sanctity of life.

History of Abortion Law in Queensland

An abortion is the expulsion or removal of a fetus from the uterus of a pregnant woman (Moore, 1998, pg:2). Throughout history, the only grounds upon which an abortion would be lawful and socially applicable were if there was imminent danger to the life of the mother. The criminal law provisions creating the abortion related offences in Australia were sculpted on the now superseded United Kingdom legislation, the Offences Against the Person Act (1861) . Under sections 58-59, a person committed an offence (punishable by death) by unlawfully using an instrument with the intent to cause a miscarriage. However, abortion before quickening was not considered a felony and consequently not punishable by death. (Siedlecky, 1990, pg:65) Now days, strictly speaking, all abortions within Queensland are criminal offences, unless a medical practitioner honestly and reasonably believes an abortion is necessary to preserve the women from serious danger. It is understood that abortion is a difficult issue, one which is not approached lightly. Abortions have many implications upon fundamental ethical issues. For instance, what is human nature? The right to life and personal…. (Cline, 2007)

qualifications

Legislation Regarding Abortion

The relevant statutory provisions regarding the law on abortion in Queensland may be found in sections 224 to 226 and in 282 of the Queensland Criminal Code Act (1899) . Under sections 224 to 226 of the Criminal Code the maximum penalties are fourteen years imprisonment for the offence of (s 224) Attempts to procure abortion, seven years for (s 225) the like by women with child meaning that the woman having the abortion and three years for (s 226) supplying drugs or instruments to procure abortion . However, section 282 of the Criminal Code may be used as a defense to a charge of unlawful abortion. ( Appendices One ) Meanwhile, around 14,000 abortions occurred in Queensland in 2007 alone (Rees, 2008, pg: 35) and there have been no prosecutions of doctors for abortion offences since 1986. (Parliament of Australia, 1998, pg:24)

Also the Criminal Code has provisions in section 313(2) that deem child destruction an offence. ( Appendices One ) That is, it is a crime to prevent a child from being born alive when a woman is about to deliver a child or unlawfully assaults a pregnant woman and/or destroy the life of, or cause grievous bodily harm or transmit a serious disease to, a child before its birth. This may be an issue when a late term termination is preformed.

Common Law Regarding Abortion

In 1985, two doctors were charged with abortion related offences. However, Justice McGuire later dismissed these charges (Somers, 1995, pg:14). It has been noted that the R v Bayliss and Cullen (1986) ( Appendices Two ) judgement interpreted abortion law with regards to the woman’s physical and mental health. Despite the apparent lawfulness of abortion performed within those parameters, confusion remains. It is uncertain whether, in Queensland, mental health includes social and economic circumstances, as it has been interpreted in some jurisdictions , i.e. NSW, it was held by Judge Levine in R v Wald (1971) . ( Appendices Six ) Judge McGuire noted the two-fold purpose of the prohibition in section 224:

Clearly one purpose is to protect the life, or the potential for life, of an unborn child, but I think the second purpose must also have been to protect the mother, having regard to the grave dangers, which until comparatively recent times, were attendant upon induced abortions.

(Comment on this, lack of clarity about laws)

The Essence of Personhood

Many of those who condemn abortion consider that from the moment of conception the foetus is considered a human being. However, from a legal perspective, within Queensland, under section 292 of the Criminal Code , a human foetus becomes a legal person on its birth. ( Appendix One ) In addition, the Queensland Criminal Code (1899) has provisions in sections 313(1) and 313(2) that deem child destruction an offence. That is, it is a crime to prevent a child from being born alive when a woman is about to be delivered of a child and unlawfully assaulting a pregnant woman and/or destroy the life of, or cause grievous bodily harm or transmit a serious disease to, a child before its birth. These pieces of statue law reinforces the argument for pro-abortion activists who question why should we believe that that a single cell or a clump of cells is a person? Or have the same level of moral important as we readily acknowledge each other to have? After all a newly fertilised ovum and early embryo does not have the attributes of a person? It can not think, reflect, imagine, experience, or do things for itself. In response to this argument anti-abortion advocates claim foetuses have the potential to do all those things; it has in short the “potential” to become the wonderful being that we fully fledged human beings are. It should therefore be valued and respected for that potential and be accorded than same moral status and protection that we accord each other. However as John Harris has pointed out “ we all of us have the potential to be corpses. But this in no way justifies treating or valuing each other as though we already were corpses ”. (Gillion, 2001, pg:4) Hence, John Harris has just pointed out, the same reason why young healthy students don’t receive fortnightly pension and that is, we award rights and obligations on what the current status of others rather than their potential. Hence,

Abortion, a Criminal or Health Issue?

The essence of the abortion debate has surface is whether abortion is best characterised as a criminal or a health issue. Organisations including the Public Health Association of Australia (PHA) and the Australian Medical Association (AMA) support the decriminalisation of abortion. They characterise abortion as having no place within criminal law in regulating what they considered is a woman’s personal decision. (Rees, 2008, pg:72) While on the other hand, Australian Christian Lobby, the Australian Family Association and various Catholic organisations take an alternative view, stressing a moral opposition to abortion and a belief that abortion should remain a crime. Of whom argued, that abortion is potentially harmful to women. (Joseph, 1994, pg: 92) However Dr. Caroline de Costa, the first doctor in Australia to become licensed to dispense RU486, (an abortion drug) clams “(abortion) continues to be the only widely practiced and publicly funded medical procedure that is criminalized, yet it is one of the most common and safest medical procedures in Australia“. (Fraser, 2009) Nonetheless, a shift towards the location of abortion policy in health law has become apparent in recent years within several Australia jurisdictions. For instance, prior to May 1998, sections 199 to 201 of the Western Australian Criminal Code were almost identical to the abortion provisions in the Queensland Criminal Code. Amendments enacted in 1998 by the Western Australian Government have resulted in the relocation of the laws regarding abortion from the Criminal Code to the Health Act 1911 (WA). The law reform resulted in. WA laws and compare to QLD) (doctors/ medical professional could not have custodial sentences)

Abortion, Only a Woman’s Right?

Some people argue that the decision of whether to proceed with a pregnancy belongs solely to the woman’s right to control her body, not the medical profession or the biological farther. Firstly the biological father essentially has no right to prevent the abortion of a foetus. The courts have dealt with this issue on a number of occasions, including in Attorney-General (Qld) v T.51 (1983) 46 ALR 275. nh(Appendix four) (Opinion of farther, medical professionals) (Do it yourself style abortions – stasis)

• Rosalind Pollack: Should women get an abortion on the grounds that they prefer a different gender…? Such a decision would be blatantly sexist… that is, a women’s “right to control her body” is not but we have not developed a socialist feminist morality that would tell us the exceptions should be. (Menon, 1993, pg:114)
• Abortion is a matter between a woman and her doctor, with autonomy as the fundamental principle that the law should respect.

Recommendations

Legalise abortion with the objective of modernising the law of that it is clear, widely understood, and reflective of current community standards. Reform that does not result in restricting current access to services. Reform of the law (that at the same time) should not lead to an increase in the rate of abortion.

Conclusion

Bibliography

Cline 2007 Ethics of Abortion: Is it moral or immoral to have an abortion? www.About.com viewed on 17 July 2009

Bronitt, S. & Heilbronn, G. 2005, Principles of Criminal Law , 2nd edn, Lawbook Co, Sydney.

Cica, N. 1999, Abortion Law in Australia: Research Paper 1 1998-99, Law and Bills Digest Group, Canberra

Family Planning Queensland, Abortion, Information Sheet, October 2000, at http:/www.fpq.asn.au.htm

Fraser ‘Abortion reform to hard to swallow’ 13 June 2009 the Australian

Gillion, R. 2001, ‘Is there a ‘new ethics of abortion’?’, Journal of Medical Ethics , pp. ii5-ii9.

Somers, F. 1995, The role of rights in the Queensland abortion debate, A.B. (Honours) Dissertation, Griffith University, Brisbane, Australia.

Moore, A. (ed.) 1998 Macquarie Study Dictionary, Jacaranda Wiley LTD, Sydney

Menon, N. 1993, ‘Abortion and the Law: Question for Feminism’, Canadian Journal of Women and Law , pp. 103-118.

Rees, N. 2008, Law of Abortion: Final Report, Victorian Law Reform Commission, Melbourne.

Background Reading

Bennett, B. 2004, Abortion , Dartmouth Publishing Company, Burlington, pp. 3-7, 558-562.

Bowen, J. 1987, The Macquarie Easy Guide to Australian Law , Macquarie Library, Chatswood, pp. 69, 634, 863.

Breen, K. & Plueckhahn, V. 1997, Ethics, Law and Medical Practice , Allen & Unwin, St Leonards, pp. 280-283.

Gray, A. 2009, Legal Studies in action: two , 3rd edn, John Wiley & Sons, Australia.

Heilbronn, G. 2008, Introducing the Law , 7th edn, CCH Australia, Sydney.

Queensland Parliament 2003, Abortion Law Reform: An Overview of Current Issues , Queensland Parliament Library, Brisbane.

Rerassil, B. 2000, Excel Preliminary Legal Studies , Pacal Press, Glebe.

Stuparich, J. (ed.) 1994, The Abortion Debate: Pro-Life Essays , Right to life Association, Civic Square, pp. 88-98.

Video Education Australisa 1998, Whose Right: The Abortion Debate

n.pub., Australia.

Wood, R., Black, A., Biggs, J. & Owens, D. 2003, Legal studies for Queensland , Volume 2 (4th edn), Legal Eagle Publications, Brisbane.

Wood, R., Black, A., Biggs, J. & Owens, D. 2007, Legal studies for Queensland , Volume 1 (5th edn), Legal Eagle Publications, Brisbane.

Appendices

Appendices One, Queensland Criminal Code (1899)

In Queensland, abortion is a crime under the Queensland Act, although generally regarded as lawful if performed to prevent serious danger to the woman’s physical or mental health.

Abortion is defined as unlawful in the Queensland Criminal Code (1899) under Sections 224, 225 & 226. Women can be criminally prosecuted for accessing abortion.

Section 224: Attempts to procure abortion

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 fourteen years.

Section 225: The like by women with child

Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for seven years.

Section 226: 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 three years.

However, Section 282 of the Criminal Code attempts to define a lawful abortion and is used as a defence to unlawful abortion:

Section 282: Surgical operations

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient’s benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.

Section 292: When a child becomes a human being

A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not.

Note Under, Section 313 (2): Killing unborn child

Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime. Maximum penalty — imprisonment for life.

It is unclear whether section 313 (2) could be applied in the context of medical abortion. Arguably the word “unlawfully” in section 313 (2) would limit its application in that context to those medical abortions that are already prohibited under the Queensland provisions that make unlawful abortion a crime, and thus to abortions that do not satisfy the test in R v Bayliss and Cullen (1986). ( Appendices Two ) (Bronitt, 2005, pg:495)

Section 292: When a child becomes a human being

A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not.

Appendices Two, R v Bayliss and Cullen (1986)

In May 1985 the Queensland police under the Bjelke-Petersen government raided the Greenslopes Fertility Control Clinic which had opened in 1976 and had undergone political pressure since that time. Police interrogated women and took away 20,000 confidential patient files to be copied and studied. In June 1985, the Full Court ruled that the search warrants used by the police in the raid on the clinic were invalid, and ordered the files to be returned.

The then Director of Prosecutions, Mr Des Sturgess, made a public plea for any person dissatisfied with the Greenslopes clinic to come forward. A 21-year-old mother of three children made a complaint about a termination of pregnancy performed in January 1985. As a result, Doctors Bayliss and Cullen were charged with procuring an illegal abortion contrary to Section 224 of the Criminal Code , and inflicting grievous bodily harm.

The presiding judge at that trial R v Bayliss and Cullen (1986) was Judge McGuire. He based his ruling on the celebrated English case R v Bourne (1939) and a Victorian ruling by Justice Menhennit in R v Davidson (1969) . Judge McGuire expressed the firm opinion that the R v Davidson represents the law in Queensland with respect to Sections 224 and 282. The Criminal Code s 282 provides the accepted defence to a charge of unlawful abortion under s 224.

It would appear from the stance taken by Judge McGuire that a prosecution under s 224 will fail unless the Crown can prove the abortion was not performed upon the unborn child “for the preservation of the mother’s life” and was not “reasonable having regard to the patient’s state at the time and to all the circumstances of the case”.

In the court proceedings, Judge McGuire stated:

It would be wrong indeed to conclude that Bourne equates to carte blanch. It does not. On the contrary, it is only in exceptional cases that the doctrine can lawfully apply. This must be clearly understood. The law in this State has not abdicated its responsibility as a guardian of the silent innocence of the unborn. It should rightly use its authority to see that abortion on whim or caprice does not insidiously filter into our society. There is no legal justification for abortion on demand.

Judge McGuire indicated that the present abortion law in Queensland was uncertain, and that more imperative authority, either the Court of Appeal or Parliament, would be required to effect changes to clarify the law. At the conclusion of the trial, Doctors Bayliss and Cullen were found not guilty on both counts. The basis for lawful abortion in Queensland currently rests on Judge McGuire’s decision. Since 1986, the law on abortion has not been tested as basically the prosecuting authorities have ‘turned a blind eye’. The Queensland Parliament has not acted to address Judge Maguire’s concern around the uncertainty of the law.

Appendices Three, Section 313 of the Criminal Code

Under section 313 (2), it is crime to unlawfully to assault a pregnant woman and destroy the life of, do grievous bodily harm to, or transmit a serious disease to, “the child” before its birth. The penalty for this new offence is life imprisonment. It is unclear whether section 313 (2) could be applied in the context of medical abortion. Arguably the word “unlawfully” in section 313 (2) would limit its application in that context to those medical abortions that are already prohibited under the Queensland provisions that make unlawful abortion a crime, and thus to abortions that do not satisfy the test in R v Bayliss and Cullen (1986).

Appendices Four, R v Bourne (1939)

In the English case, a respected London obstetrician, Dr Bourne, performed an abortion openly to terminate the pregnancy of a 14-year-old girl who had been raped. Dr Bourne was charged under section 58 of the Offences Against the Person Act (1861) which is substantially a combination of Sections 224 and 225 of Queensland’s Criminal Code. The word “unlawfully” is used in that section as it is in Queensland’s Criminal Code , and this clearly means that in some circumstances abortions must be lawful. The presiding judge, Macnaughten J, had to decide what justification(s) would render an abortion lawful. He drew upon Section 1 of the Infant Life (Preservation) Act 1929 (UK) which provides:

Any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes the child to die before it has an existence independent of its mother, shall be guilty of a felony … of child destruction …

That section provided a defence where the act which caused the death of the unborn child “ was done in good faith for the purposes only of preserving the life of the mother” . This is virtually the same terminology that is used in Section 282 of the Queensland Criminal Code. Macnaughten J, in his direction to the jury, interpreted the term “preserving the life of the mother”:

Those words ought to be construed in a reasonable sense, and, if the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are entitled to take the view that the doctor … is operating for the purpose of preserving the life of the mother.

Appendices Five, NSW statute

In NSW, abortion is generally regarded as lawful if performed to prevent serious danger to the woman’s mental and physical health, which includes economic and social pressures. In NSW abortion is in the Crimes Act 1900 (ss 82, 83 and 84) with penalties of up to 10 years imprisonment for the woman, the doctor and anyone who assists:

Section 82:

Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing; or unlawfully uses any instrument to procure her miscarriage, shall be liable to penal servitude for ten years.

Section 83:

Whosoever unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing; or unlawfully uses any instrument or other means, with intent in such cases to procure her miscarriage, shall be liable to penal servitude for ten years.

Section 84:

Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman whether with child or not, shall be liable to penal servitude for life.

The Crimes Act specifies that abortion is a crime only if it is performed unlawfully. However, it does not define when an abortion would be considered lawful or unlawful.

Appendices Six, R v Wald (1971)

To clarify the situation, Judge Levine in R v Wald (1971) established a legal precedent in his ruling on the definition of lawful. He allowed that an abortion should be considered to be lawful if the doctor honestly believes on reasonable grounds that “the operation was necessary to preserve the woman involved from serious danger to her life or physical or mental health which the continuance of the pregnancy would entail” and that in regard to mental health the doctor may take into account “the effects of economic or social stress that may be pertaining to the time”. Levine also specified that two doctors’ opinions are not necessary and that the abortion does not have to be performed in public hospital.

The Levine judgement has been affirmed and followed by the courts in New South Wales. Since 1973 there has been no prosecution for an unlawful abortion.

Important points summarised:

• Abortion is not always unlawful in NSW
• The test for unlawfulness of abortion is whether a doctor honestly believes on reasonable grounds that the abortion is necessary to preserve the woman from serious danger to her life or physical or mental health.
• Mental health has been interpreted as including the effects of economic or social stress that may pertain at the time.
• In NSW you do not need a referral to go to a clinic for an abortion. You can call them directly

Appendices Seven, Western Australian Statue

In Western Australia, provisions relating to abortion are found in the Criminal Code and the Health Act. The Acts Amendment (Abortion) Act 1998 repealed four sections of the Criminal Code and enacted a new section 199 and placed regulations in the Health Act.

Criminal Code s 199

1. Abortion must be performed by a medical practitioner in good faith, and with reasonable care and skill.
2. Abortion must be justified under Section 334 of the Health Act 1911.
3. Where an abortion is unlawfully performed by a medical practitioner he or she is liable to a fine of $50000.
4. Where an abortion is unlawfully performed by someone other than a medical practitioner, the penalty is a maximum of five years imprisonment.

The offence of ‘unlawful’ abortion may only be committed by the persons involved in performing the abortion. The patient herself is not subject to any legal sanction in Western Australia.

Section 259 is a defence for unlawful abortion:

A person is not criminally responsible for administering, in good faith and with reasonable care and skill, surgical or medical treatment –

(a) to another person for that other person’s benefit; or

(b) to an unborn child for the preservation of the mother’s life, if the administration of the treatment is reasonable, having regards to the patient’s state at the time and to all the circumstances of the case.

The Health Act (Abortion) Amendment Act 1998 details when the performance of abortion is justified in Section 334 (3) :

(a) the woman concerned has given informed consent; or

(b) the woman concerned will suffer serious personal, family or social consequences if the abortion is not performed; or

(c) serious danger to the physical or mental health of the woman concerned will result if the abortion is not performed; or

(d) the pregnancy of the woman concerned is causing serious danger to her physical or mental health.

Informed consent means a medical practitioner other than the one performing the abortion has provided or offered or referred the woman to counselling. Proof of consent is not defined so the Royal College of General Practitioners has prepared an information package and consent forms for doctors.

After 20 weeks of pregnancy, two medical practitioners from a panel of six appointed by the Minister have to agree that the mother or unborn child has a severe medical condition. These abortions can only be performed at a facility approved by the Minister. (Section 7)

No person, hospital, health institution, or other institution or service is under a duty where by contract or by statutory or other legal requirement to participate in the performance of an abortion. (Section 334 (2))

Dependent minors (girls under 16 years who are supported by at least one parent) need to have one parent informed, and given the opportunity to participate in counselling before an abortion can be performed. However she may apply to the Children’s Court for an order to proceed with an abortion if it is not considered suitable to involve the parents(s).

Section 335 of the Health Act is amended to:

(a)Require medical practitioners to notify the Health Department within fourteen days of an abortion being performed. The prescribed form must not contain particulars from which it may be possible to ascertain the identity of the patient.

(b) Review of provisions relating to abortion must be carried out after three years with the Minister reporting to Parliament within four years of commencement of the Act.

12.8 Appendices Eight, R v Davidson (1969)

In the Victorian case R v Davidson (1969) , Justice Menhennitt defined the meaning of “unlawful” as it appears in Section 65 of the Crimes Act 1958 (Vic.) by reference to what is lawful. He settled on the principle of “necessity” which provides that an act which would usually be a crime can be excused if:

• It was done to avoid otherwise inevitable consequences
• The consequences would have inflicted irreparable evil
• That no more was done than was reasonably necessary
• That the evil inflicted by the act was not disproportionate to the evil avoided

This principle contains two elements, one of necessity and one of proportion, which require that a pregnancy poses a certain danger to a woman’s health before its termination will be lawful.

Menhennitt J. detailed the circumstances in which an abortion could be lawfully performed. The accused must have honestly believed on reasonable grounds that the act done by him was:

• necessary to preserve the woman from a serious danger to her life or physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of pregnancy would entail
• in the circumstances not out of proportion to the danger to be averted.

For abortion to be unlawful the prosecution has to prove beyond reasonable doubt that the medical practitioner lacked this honest belief.

The Menhennitt judgement was important because it included, for the first time in Australia, both mental and physical health risks as grounds for an abortion.