Abortion in Australia: the legal pitfalls
On 11 September 2009, a 19 year old Queensland woman and her partner were committed for trial in the Cairns District Court on charges that the woman had unlawfully performed an abortion on herself using the drug Misoprostol (also known as RU486) supplied to her unlawfully by her partner. The Police allege that the young woman and her boyfriend arranged for the importation of the drugs from the Ukraine which the woman then administered at eight weeks gestation. The pair has been charged with offences under the Criminal Code of Queensland (1899); the woman with procuring her own miscarriage by unlawfully administering the drug and her boyfriend with assisting her. In both cases, substantial jail terms are at stake. The drug is available in Australia but the pair appear not to have known this.
With clinicians in Queensland refusing to perform abortions, patients are being referred to New South Wales hospitals, with some jurisdictions removing abortion from their Criminal Code. The abortion issue is very much alive for the medical profession in Australia.
The charges - apparently the first in Queensland in approximately 50 years - are a reminder of the dangers associated with performing abortions for both the medical profession and their patients. While the case concerns the prosecution of the woman and her partner, clearly the majority of abortions are now performed by doctors. The last prosecution of a doctor in Queensland was over 20 years ago, and he was acquitted. However, the recent developments in Queensland highlight just how uncertain the law is on abortion in many parts of Australia.
This article outlines the legal position in Queensland, NSW, the ACT and Victoria, the non-medical risks for medical practitioners and their staff and how they can be avoided.
Queensland and New South Wales
It may come as a shock to know that almost the same criminal sanctions for abortion exist in New South Wales as they do in Queensland, yet doctors in these two States conduct the majority of the 100,000 or so abortions that are performed each year in Australia. Under the criminal law in both Queensland and New South Wales, for more than 100 years, it has been an offence:
- to unlawfully supply or procure a drug or other thing knowing it is to be used unlawfully to procure an abortion; or
- for either the woman herself or any other person to unlawfully administer a drug to or use an instrument on the woman with intent to procure an abortion (or, in the case of Queensland, for a woman to permit another person to do such a thing to her).
These offences carry jail terms ranging from three years to 14 years. In Queensland (but not New South Wales) it has been a defence to perform a surgical operation upon a patient for the patient’s benefit or upon an unborn child for the preservation of the mother’s life, if it is reasonable having regard to the patient’s state and all the circumstances. In response to the public outcry over the recent charges, the Queensland government has now amended this provision of the Criminal Code to extend the defence to cover medical procedures as well as surgical procedures. This was to address the concern voiced by doctors that performing medical abortions (i.e. using RU486) would otherwise be a criminal offence.
The law in both New South Wales and Queensland relies heavily on what is “unlawful” which is not defined. Put simply, abortion is an offence if performed “unlawfully” which is for the Courts to decide.
Who can perform?
In both New South Wales and Queensland the law is silent on who can perform an abortion but Courts in both states have said that the procedure has to be performed by a medical practitioner in order to be “lawful”. A non-practitioner is almost certain to be unable to meet the requirements for establishing lawfulness (see below) and it would seem that the woman herself has no defence, even where there is no risk to herself.
In Queensland a medical practitioner has a defence to the criminal charge when performing an abortion for the preservation of the mother’s life. The Queensland defence is both unclear and limited while no comparable provision exists in New South Wales. The majority of abortions are medically induced but there is no support for this practice by medical practitioners in the statutes of either State.
When is an abortion lawful?
In both New South Wales and Queensland, the medical practitioner must honestly believe, on reasonable grounds, that:
- the abortion is necessary to protect the woman from serious danger to her life or physical or mental health; and
- the danger of the procedure is not out of proportion to the danger that is being avoided.
In New South Wales (but not Queensland), economic and social factors are considered to be relevant and health concerns for the woman are not limited to the pregnancy.
In Queensland, the Courts have stressed that the “law in this State has not abdicated its responsibility as guardian of the silent innocence of the unborn…There is no legal justification for abortion on demand” although in another case, the serious danger to the mother’s mental health if her severely handicapped child had been born was recognised.
The 2006 Dr Sood case illustrates the law in New South Wales. Dr Sood was convicted of performing an unlawful abortion. She had not carried out a physical examination, discussed alternatives with the woman or enquired as to her reasons for requiring a termination. The Court found that she had not honestly believed that the procedure was necessary to preserve the woman’s life or avoid serious danger and nor had she weighed the relative dangers of termination against continuing with the pregnancy. The Court held there was no requirement for the doctor to have counselled or deterred the woman.
When abortion can or should be done?
In both New South Wales and Queensland, there is no duty to perform an abortion. Accordingly, the doctor can refer a patient elsewhere. To meet his/her duty of care, the practitioner must still provide the patient with enough information to help her make an informed decision.
There are no legislative requirements in relation to late term abortions - it is a matter for practitioners, bearing in mind the other requirements.
The law is no less punitive in New South Wales than in Queensland bringing into question the recent practice of interstate referrals. Medical practitioners in Queensland have a limited defence for abortions when the woman’s life is at stake, but the principal issue in both States remains whether the abortion is “lawful”, based on the criteria laid down by the courts.
ACT and Victoria
The ACT (since 2002) and Victoria (since October 2008) have decriminalised the medical practice of abortion. However, they have handled the move in different ways. In both jurisdictions the area is regulated by health legislation rather than the criminal law. In the ACT (Health Act 1993) there are no criminal sanctions at all and in Victoria (Crimes Act 1958 and Abortion Law Reform Act 2008), very few.
Who can perform?
In the ACT only a doctor in a medical facility can perform an abortion. There are no other requirements.
In Victoria, up to 24 weeks, a doctor may perform all abortions while a nurse or pharmacist may perform a medical abortion. For abortions after 24 weeks, the doctor must consult another doctor and both must reasonably believe the abortion is appropriate in all the circumstances, including medical circumstances and the women's current and future physical, psychological and social circumstances. Provided these conditions are met a doctor may also direct, in writing, a nurse or pharmacist employed at a hospital or day procedure centre to perform a medical abortion.
When is an abortion illegal?
In the ACT abortion is never illegal as there are no criminal sanctions.
In Victoria abortion is illegal if not performed by a qualified person. A qualified person is either a doctor, a nurse or pharmacist under the circumstances described above. The maximum penalty for an unlawful abortion is 10 years imprisonment. The woman herself can never be guilty of an offence.
When abortion can or should be done?
In the ACT, the abortion can be done at any time in any circumstances but no one is under any duty (“contract, statutory or other legal requirement”) whatsoever to carry out (or assist) an abortion although there may be professional repercussions.
In Victoria, an abortion must be done if the woman’s life is at stake, otherwise, up to 24 weeks in any circumstances and, after 24 weeks, where the doctor/s considers it appropriate as set out above.
In the case of “conscientious objectors” to abortion in Victoria, the practitioner must inform the woman of the objection and refer her to a registered health practitioner in the same regulated health profession who he/she knows does not have an objection. This positive duty is unique in Australia. A doctor (and a nurse to assist) is also under a duty to perform an abortion in an emergency where it is necessary to preserve the life of the woman, even if the doctor has a conscientious objection.
What should a doctor do?
The only way for a doctor to satisfy him or herself of the requirements for legality as set out above (excluding the ACT which has none) is to take a detailed history, provide the patient with all the alternatives, conduct a thorough examination and to make a detailed record, including where appropriate, directions given to staff. This was clearly illustrated by the Sood case. The defence for abortions in Queensland by medical practitioners does not remove the necessity for such diligence.
Conclusion
Abortion law on Australia’s east coast is in a state of flux. Whereas New South Wales and Queensland retain the criminal sanctions dating back more than 100 years, the ACT and Victoria have instigated substantial reform. In those jurisdictions abortion is predominantly a health issue to be assessed by the medical profession, rather than a legal issue to be determined by lawyers and the Police.
In New South Wales, the Greens are now actively agitating for reform of abortion law. In Queensland, the current criminal matter has provoked enormous concern on the part of both the medical profession and the public. The trial of the Cairns couple will now take place next year.
Written by Susan Doherty, Senior Associate and Feneil Shah, Solicitor.
