Political and Legal Issues
Surgical Abortion Societal
Issues
Counselling
Abortion Law in Queensland
Medication abortion and the law
Australian law
The law and service provision
Summary of Victorian reforms of 2008
Medication Abortion
Conscientious Objection
Australian Service Provision
Risks of Abortion
Public Opinion
Religion and Choice
Abortion Rates
Abortion as contraception
Abortion at a later gestation
Abortion Law in Queensland
In Queensland, abortion is a crime under the Queensland Criminal Code, 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
and 226. Women can be criminally prosecuted for accessing abortion.
Section 224. 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 14 years.
Section 225. 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 7 years.
Section 226. 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 3 years.
However, due to the R v Bayliss and Cullen court case in 1986 (see below) and the resulting judgement, an abortion is
lawful in Queensland if carried out when there is serious danger to the woman's physical and mental health from the
continuation of the pregnancy. Section 282 of the Criminal Code attempts to define a lawful abortion and is used as a
defence to unlawful abortion. The wording was amended in September 2009 to include medical abortion:
A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill a
surgical operation on or medical treatment of:
a) a person or unborn child for the patient's benefit; or
b) a person or unborn child to preserve the mother's life;
if performing the operation or providing the medical treatment is reasonable, having regard to the patient's state at the
time and to all circumstances of the case.
R v Bayliss and Cullen
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. 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. At the conclusion of the trial, Doctors
Bayliss and Cullen were found not guilty, and the basis for lawful abortion in Queensland currently rests on Judge
McGuire's decision. Until 2009, the law on abortion had not been tested as the prosecuting authorities have
'turned a blind
eye', and the Queensland Parliament has not acted to address Judge Maguire's concern around the uncertainty of the law.
More information on the proceedings of the Bayliss and Cullen case are available at the Children by Choice website.
Cairns 2009
In April 2009, a 19-year-old Cairns woman was charged under section 225 in the Queensland Criminal Code, for procuring her
own miscarriage. Her partner was charged under section 226 for assisting her. The case was committed to trial in September
2009, with their trial set to begin 12 October 2010 - they face potential jail terms of seven and three years respectively
if convicted.
Police allege the couple arranged for a relative to bring a supply of the drug misoprostol, used in medical abortions, to
Australia while on a visit from the Ukraine. It is further alleged the woman used the drug successfully to terminate her
pregnancy at 60 days, after the couple decided they were too young to parent. Police claim the couple made no inquiries
about the availability of abortion in Cairns.
The couple face a combined 10 years' imprisonment if convicted of the offences, which have been brought under the
antiquated Criminal Code provisions relating to abortion. This is the first time in over 50 years that a woman has been
charged in Queensland for choosing abortion.
The charges caused two Cairns doctors providing medication abortion to cease doing so, for fear their patients would be
similarly targeted. Read their article in Crikey for a full description of their concerns. This sparked a similar reaction from
doctors practicing in public hospitals around the state. Download a
timeline of events for more information (PDF 162KB).
Current provision of services following 2009 withdrawals and legislative changes
Since the reforms were put through, most doctors (though notably, not all) have gradually returned to providing medical
abortion. However, conversations with doctors have revealed two things: that they resumed providing not because of a
certainty that they were legally protected from prosecution but because they felt they could no longer turn women away from
services they wanted and needed; and that the uncertainty within the medical profession on the legality of abortion in this
state has, if anything, increased since the September 2009 reforms.
Doctors within the public health system, who provide a limited number of terminations for women with maternal health
problems or who receive a diagnosis of severe fetal anomaly, have told us that since the reforms these terminations are
even more stringently monitored. Before the reforms, doctors were trusted to make a professional judgement on their
patients' circumstances on a case by case basis, to determine if an abortion was performed. Now, women in these
circumstances are routinely subjected to full psychiatric evaluations, sometimes by two different psychiatrists, which
determine their access to a termination. Children by Choice heard of a case recently where a young woman had taken almost-
fatal overdoses of drugs three times to try and end her pregnancy, not caring if the end result was her own death. Doctors
at her public hospital still refused her a termination. Other doctors tell us they have begun warning women of the
difficulties in accessing terminations before they embark on diagnostic testing during a pregnancy - a public service
offered to every pregnant woman throughout the country, the aim of which is to detect any possible problems with the
pregnancy or the health of mother and fetus. One implied outcome of these tests is the possibility a woman may choose to
terminate a pregnancy if problems are diagnosed.
The letter of the law as it stands states that the only grounds for a lawful termination in Queensland is to save the life
of the woman or to prevent a serious threat to her physical or mental health. Rape, incest, or a fetal anomaly - even one
so serious as to be incompatible with life, such as anencephaly - are not sufficient grounds for a legal abortion in
Queensland. If a woman is told at 13 weeks into her pregnancy that her baby will not survive birth, such as one woman who
contacted Children by Choice late last year was after a routine ultrasound showed her fetus was developing without a brain,
she cannot lawfully choose to terminate that pregnancy before it dies in her womb. Ironically, after she miscarries or
delivers a stillborn, treatment is available at any hospital.
With this law now being interpreted much more narrowly than before the 282 reforms, the only way that women presenting for
abortion on any of the above grounds - rape, incest, fetal anomaly - can legally access a termination is to prove to a
doctor that the effect of this on her physical or mental health is so extreme that she needs an abortion. In effect, women
who are perfectly capable of making a rational decision are not recognised as decision makers worthy of respect, and have
to feign hysteria or lie about their level of mental stress in order to access abortion.
Dr Caroline de Costa, an obstetrician and gynaecologist in Cairns, recently wrote of a similar case for Crikey.
Australian Law
Abortion remains in the Criminal Code in every state and territory with the exception of Victoria and the ACT.
Victoria reformed their abortion laws in 2008 (See below), after the tabling of the Abortion
Law Reform Bill in Parliament.
The ACT fully legalised abortion in 2002, and now has the most progressive law in the country. All statutory and common law
offences of abortion have been repealed, and the procedure is now regulated in the Health Act. There is no evidence that
any increase in demand for abortion at any stage of gestation has occurred.
In contrast, law reform in WA, in 1998, had less positive outcomes. The law is unnecessarily confusing prior to 20 weeks
gestation, and after 20 weeks gestation access for termination is complex, requiring each woman's case to be evaluated by a
faceless committee. Documented problems with the regime include women feeling pressured to make a quick rather than
considered decision after a negative fetal diagnosis when the pregnancy is less than 20 weeks, and of women failing to bond
with babies they were compelled to deliver after being denied abortion by the committee. Read the Department of Health and
Department of Justice's Review
of the Amendments (PDF 369 KB).
A summary of abortion laws throughout Australia can be found on the Children by Choice website.
Summary of Victorian reforms of 2008
On 20 August 2007, the Victorian government asked the Victorian Law Reform Commission for legislative advice on the
decriminalisation of terminations of pregnancy. The Commission received terms of reference for the project on 26 September
2007 and was asked to finish its report to parliament by 28 March 2008.
The commission held more than 30 meetings with people involved in abortion law reform from the beginning of October until
mid-November 2007.
More than 500 submissions to the review were received by the 9 November 2007 deadline. The report was delivered to
Government on March 30, and the findings tabled in Parliament on 29 May.
The final report from the Law Reform Commission is a comprehensive document that addresses medical, legal and social
aspects of abortion, and includes references to large amounts of research in the area. Read the report at the VLRC's website.
The Abortion Law Reform Bill was subsequently introduced into Victorian Parliament on 19 August 2008. It was passed into
law after the Upper House voted in favour of the bill in October 2008, allowing women the right to choose abortion up to 24
weeks of pregnancy, then with the consent of two doctors after 24 weeks. The anti-choice lobby ran a vicious campaign
throughout the parliamentary debate, targeting MPs who supported decriminalisation with phone calls, text messages, emails
and letter-box drops in their electorates (see the Pro Choice Vic website for
news reports on the debates and the campaigns). These inflammatory tactics were unsuccessful and the bill has now been
passed into law, in a victory for women and choice in Victoria.
Surgical Abortion
Surgical abortion uses gentle suction to remove the pregnancy from the uterus. It is generally performed under some form of
anaesthetic and is a safe, simple and modern procedure with a low risk of complication. The World Health Organisation
describes abortion - by either surgical or medication means - as 'one of the safest medical procedures'.
Further information regarding surgical abortion services in Queensland can be found at the Children by Choice website.
The Royal Australian and New Zealand College of Obstetricians and Gynaecologist has prepared a resource document for health
professionals, summarising current medical evidence and reference material about methods of termination of pregnancy prior
to 20 weeks gestation. The Termination of Pregnancy publication can be downloaded from the RANZCOG website.
Medication Abortion
Medication abortion is a non-surgical procedure and an option for women with pregnancies that are under nine weeks
gestation. It allows women to terminate an unplanned and unwanted pregnancy at an earlier gestational stage than surgical
abortion and requires no anaesthesia.
The preferred method for medication abortion is the combined use of RU486 (mifepristone) and a prostaglandin like
misoprostol. However, this method remains under limited availability in Australia, due to tight restrictions on the supply
and prescription of RU486. Children by Choice and Reproductive Choice Australia provided information to MPs during the
campaign to lift legal restrictions on RU486 being evaluated for use in Australia.
The Royal Australian and New Zealand College of Obstetricians and Gynaecologists states that 'there is a substantial body
of literature establishing the safety and efficacy' of the RU486 plus prostaglandin regime. The World Health Organisation
describes abortion - by either surgery or medication - as 'one of the safest medical procedures'. In 2005, it placed RU486
on its list of 'essential medicines'.
For information on the safety of medication abortion and responses to common myths about terminating using RU486, see the
Reproductive Choice Australia booklet RU486 (Mifepristone): a factual guide to the Australian debate (PDF,
1.12MB).
In the absence of RU486, an alternative method available for Australian women to procure a medication abortion is using a
methotrexate-misoprostol regimen.
Australian Service Provision
Abortions are currently carried out in some public hospitals and private practices across Australia. The cost of abortions
can vary depending on which service is utilised and the type of abortion procedure. Varying state law also impacts the
provision of services, another reason the cost and availability of abortion differs from state to state.
Cait Calcutt from Children by Choice reviewed service provisions in 2007 for the Australian and New Zealand Journal of
Obstetrics, Abortion Services in Australia. For more information on service
provision in Queensland, including costs visit the Children by Choice
website.
Risks of Abortion
In Australia, where abortions are performed by highly qualified health care professionals in very sanitary conditions, a
pregnancy termination is one of the safest medical procedures, and complications are rare. The anti-choice lobby use the
supposed 'risks' of abortion to scare women out of having a termination – the three most often used in misinformation
campaigns are that an abortion will affect a woman's future fertility, that it causes breast cancer, and that there are
long-lasting psychological impacts of abortion.
Infertility
The Royal Australian and New Zealand College of Obstetricians and Gynaecologists, or RANZCOG, states that serious
complications after abortions are rare, and that mortality and serious morbidity occur less commonly with abortions than
with pregnancies carried to term. While minor surgery or the administration of medication does carry some risks, both
surgical and medical methods of abortion should not have any adverse effect on future fertility.
The Royal College of Obstetricians and Gynaecologists in the UK identifies that there are no proven associations between
induced abortion and subsequent ectopic pregnancy, placenta praevia or infertility, a view supported by RANZCOG, who state
that women who have an uncomplicated termination are not at an increased risk of being infertile in the future.
Breast cancer
Around the world, reproductive health and anti-cancer organisations have rejected any association between abortion and an
increased risk of breast cancer. This rejection is based on reliable scientific investigation, documented in reputable
medical publications, and has been endorsed by the World Health Organisation.
One study published in the Lancet medical journal in 2004 was an analysis of 53 studies, involving 83,000 women with breast cancer
from 16 countries, found that there was no evidence of a difference in breast cancer rates between women who had had an
abortion and those who had not.
Neither the United States Cancer Council or its Australian counterpart recognise abortion as a risk factor for cancer.
Emotional trauma
Every woman experiences the termination of a pregnancy differently, but there is no evidence to suggest that it can cause
permanent emotional strain. The American Psychological Association's Taskforce on Mental Health and Abortion reviewed 20
years of research and studies into the psychological effects of abortion and released its final report in 2008. It found no difference in the
psychological effect of terminating an unplanned pregnancy and carrying that pregnancy to term. Reviews of studies into the
issue have found a number of consistent trends:
For a summary of the extensive research findings in the area of mental health and abortion see Abortion, Informed Consent, and Mental Health by Nancy Felipe
Russo and Lisa Rubin. A summary of the scientific research in this area can also be found in an article on post-abortion
issue on the National Abortion
Federation website.
Counselling
Most women talk to friends, family, their partner and/or doctor before undertaking a termination. In a recent survey by
Marie Stopes International, three out of four women said they did not want professional counselling before having a
termination.
What 81% of women who did want counselling said they wanted was balanced information about, and referrals for, all three
options: pregnancy, abortion, adoption and parenting. Pro-life counselling does not refer for abortion, though deceptive
advertising practices may make it difficult for women to know that the agency they have called is pro-life and will not
help her to find an abortion provider, even if she requests this assistance.
Post- abortion stress is not a recognised psychological condition and, to date, there is no evidence that induced abortion
poses a higher risk to women's mental health when compared to other resolutions to unwanted pregnancy: adoption and the
parenting of an unwanted child (see Risks of abortion above). Should this change, Pro Choice QLD would
support the updating of the information disclosed to women prior to their consenting to an abortion.
Counselling should never be mandatory. Pregnancy counselling, like other forms of counselling, is ineffective unless the
patient wants the service. Compelling a woman or couple who are clear about her/their decision to undergo counselling
undermines her/their dignity and is a waste of tax-payer resources.
For more information, read Marie Stopes International's study, What Women Want When Faced With an Unplanned Pregnancy (PDF 192 KB). For information on what an unbiased
pregnancy counselling service provides visit the Children
By Choice website.
Public Opinion
Opinion polls consistently show a large majority of Australians support abortion decriminalisation.
In a survey published in the July 2010 issue of the Medical Journal of
Australia, almost 90% of Australians were found to be in favour of legal abortion in the first trimester of pregnancy. The
data also showed that a significant majority support legal abortion being available to women into the second trimester.
A survey of Australian Obstetricians and
Gynaecologists, also published in July 2010's Medical Journal of Australia, found that a large majority supported the
availability of abortion services in public hospitals.
A 2009 review of Australian attitudes to abortion, undertaken by Swinburne University researcher Dr Katharine Betts, found
that 'more than half the electorate in Australia and in Queensland support freedom of choice, and a further third support
the availability of abortion in special circumstances... Such opposition as there is is concentrated among a few religious
groups and among people aged 75 and over. As far as attitudes are concerned, Queensland is no different from the rest of
Australia'. The full review is available online.
A survey of Queensland voters' views on abortion was carried out by Auspoll in May 2009. It found that 79% of the
population wanted the law changed so abortion is no longer a crime, and that 85% of the population did not believe that the
Government should be involved in the abortion decision.
The Victorian Law Reform Commission considered public opinion in its inquiry into the decriminalisation of abortion in that
state in 2008. Their analysis of attitudes to abortion was that given some limitations in data, the available evidence
suggests that a majority of Australians support a woman's right to choose. Their final report is available online.
Further information about community attitudes can be found in the Australian Reproductive Health Alliance's 2005 report, What do
Australians Think About Abortion (PDF 291 KB).
Religion And Choice
While nearly all pro-life advocates are religious, the majority of religious people support choice. For instance, the 2003
Australian Survey of Social Attitudes found that 77% of Australians with religious views support a woman's right to choose.
Further information can be found in the Australian Australian Reproductive Health Alliance's report, What do
Australians Think About Abortion (PDF 291 KB).
In 2008, The Melbourne Anglican Church put a submission to the Victorian Law Reform Commission supporting the 'Éprovision
of safe and affordable abortions with appropriate safeguards for women who, for whatever reasons, request them.' Read the submission from the Anglican Diocese of
Melbourne.
The Centre for Reproductive Rights has written a report on the perspective of abortion adopted by Christianity, Islam,
Hinduism, Buddhism and Judaism, Religious Voices Worldwide (PDF
119 KB).
A summary of the attitudes and beliefs of seven faith groups can be found on the UK Family Planning Association's fact
sheet on Religion, contraception and
abortion.
It is a myth that the Bible forbids abortion. It is largely silent on the matter, and what it does say is open to
interpretation.
Some Catholics affirm the moral capacity of women and men to make sound decisions about their reproductive lives. For
further information, see the website of Catholics for a Free Choice.
Abortion Rates
There is no national data collection of abortion statistics in Australia, and it is difficult to estimate accurately the
number of abortions performed. Using statistics acquired from Medicare benefits is not an accurate estimation as it is not
possible to differentiate between induced abortion and miscarriage.
The Australian Institute of Health and Welfare estimates the number of induced abortions to be slightly more than 84,000 in
2003. Some details of abortion rates can be found on The Australian Reproductive Health Alliance fact sheet, Abortion in Australia (PDF 60KB). Further discussion
on the issue of abortion statistics can be found at The Parliamentary Library paper, How many abortions are there in Australia?
It has been established by experts in the field that there is no relationship between the legality or otherwise of abortion
and abortion rates. One anti-choice argument for not liberalising abortion law in Australia is that it would result in an
increase in abortions. However, many other countries with legalised abortion access have a much lower abortion rate than
Australia.
The finding that there is no predictive relationship between the legal framework surrounding abortion and abortion rates
was reiterated in a 2007 article in The Lancet, by Sedgh, Henshaw, Singh, Ahman and Shah - 'unrestrictive abortions
laws do not predict a high incidence of abortion and by the same token, highly restrictive abortion laws are not associated
with low abortion incidence'. View the full article, Induced abortion: estimated
rates and trends worldwide (PDF 149 KB).
In March 2008, the Council of Europe invited all member states to decriminalise abortion on the grounds that 'A ban on
abortions does not result in fewer abortions, but mainly leads to clandestine abortions, which are more traumatic and more
dangerous'. See their full report, Access
to safe and legal abortion in Europe (PDF 123 KB).
Abortion as contraception
A range of contraception options are available for both men and women, including the pill and condoms. Contraceptive choice
depends on personal circumstances - age, way of life, whether or not you have children, health and the need to avoid
pregnancy and sexually transmitted infections (STIs).
There is no evidence that women use abortion as a method of contraception.
Recent studies have found that over two-thirds of women who experience unplanned pregnancy were using contraception when
they conceived, showing that women are not relying on abortion alone to prevent pregnancy. One study by researchers from
Flinders University and published in 2008 in the Australian and New Zealand Journal of Public Health, found that 70% of
women seeking abortion in South Australia over the past ten years were doing so because their contraception had failed.
Even when used correctly and consistently, all contraceptive methods can fail and none are 100% effective. One study found
that almost one in four (23.8%) of 10,173 Australian men who had used condoms in the previous year reported having
experienced at least one condom breakage.
Sexual violence and coercion also remain realities for many women, and no method of contraception is foolproof. In 2004,
the World Health Organisation estimated that even if contraception was used correctly all the time, there would still be
close to 6 million accidental pregnancies every year. This means that unplanned pregnancy will always be a reality for
women and couples, and safe and legal abortion a necessary service. Read the WHO report, Unsafe Abortion.
Further information on contraceptive options can be found at Family Planning Queensland and Marie Stopes
International.
For these reasons it is vital that abortion should be available as a back-up for women who are already taking other
measures to prevent pregnancy.
Abortion at a later gestation
There is no agreed medical definition of a 'late-term' abortion. Those undertaken after 20 weeks gestation are generally
defined as 2nd or 3rd trimester terminations.
The number of abortions performed at 20 weeks gestation or later make up a very small proportion of all abortions. The
Australian Institute of Health and Welfare figures from 2005 found that 94.6% of all abortions are performed before the
13th week of pregnancy, or in the first trimester. A further 4.7% were performed between the 13th and 20th week, leaving
only 0.7% of all abortions which are performed after 20 weeks gestation.
Women may be present later for abortion for a number of reasons. These include diagnosis of fetal abnormality in a wanted
pregnancy, difficulty in accessing abortion, failure to recognise the pregnancy earlier (often due to extreme immaturity or
maturity, mental disability, or incompetent medical care) or catastrophic changes in personal circumstances (including
death or serious illness of partner or child, loss of a job, partner violence or desertion). For more information read
Women's Health Victoria's Termination of Pregnancy Post 24 Weeks background paper (PDF 65KB).
The decision to abort in any of these circumstances is a difficult one, and often made more complex by the lack of
available termination services for post-20 week abortion. Gestational limits for legal abortion have had extremely negative
outcomes for women in other jurisdictions, including in WA where a 20-week cut off has resulted in women having to make a
very fast decision on whether to abort after receiving a diagnosis of fetal abnormality later in pregnancy. Currently, in
Western Australia, women requesting termination past 20 weeks are referred to a committee, which either grants their
request, or denies them access to the procedure. The results of this regimen, according to an official report on the
workings of the law, have been:
