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Next month, Queensland will debate changes to pregnancy termination legislation. While many argue current laws disadvantage poorer women, particularly in rural areas, others are keen to maintain the status quo. By Bri Lee.

Queensland debates abortion law

Queensland Premier Annastacia Palaszczuk.
Credit: AAP Image / Dan Peled

Heather Douglas is a professor of law at the University of Queensland, an expert in issues of domestic and family violence and a former committee member of Children by Choice, a non-profit based in Brisbane. Launched in the 1970s as the Abortion Law Reform Association, for nearly half a century Children by Choice has offered counselling services and advice to women in Queensland who are experiencing an unplanned pregnancy. During the organisation’s entire existence, abortion has been illegal in the state.

“We know that there are probably around 10,000 to 14,000 abortions taking place in Queensland each year,” says Douglas. “It’s difficult to know statistics because we don’t count them the way somewhere like South Australia does, but clearly they are taking place. It’s just a lot harder for some people to get access to them than others.”

Douglas believes the current legal status of abortion in Queensland puts women experiencing domestic violence – particularly lower-income earners – in a dangerous position. “It’s an equity and equality issue,” she says. “Because of the current illegality of abortion, a lot of doctors are reluctant to talk openly about the availability of it, and it impacts their ability to screen for indications of domestic violence.”

In October, Queensland will debate the Termination of Pregnancy Bill – the closest the state has come to legalising abortion. The legislation has divided opinion, gaining strong support from the medical community – including Queensland Health, the Queensland branch of the Australian Medical Association and the Queensland Nurses and Midwives’ Union – while stirring dissent from both religious groups and free speech advocates.

“Rejection of the bill will mean continued criminalisation of vulnerable women,” says Angela Lynch, chief executive of the Women’s Legal Service Queensland. According to Lynch, the legal service often sees women presenting at their service who – for cultural, socioeconomic, linguistic and geographic reasons – face significant risk to their health and safety due to a lack of access to termination services.

Queensland is one of just two states – along with New South Wales – where abortion remains illegal. In 2017, two private member’s bills to decriminalise abortion were withdrawn in NSW; however, the state did pass a “safe access zone” law in June this year, which means protesters cannot stand within 150 metres of the entrance to an abortion clinic.

The Queensland legislation, introduced into parliament by the attorney-general, Yvette D’Ath, in August, has a similar provision, which has raised the ire of free-speech advocates who believe it will impinge on the political freedom of protesters. Broadly, though, the bill reflects the recommendations made by the Queensland Law Reform Commission in its review of termination of pregnancy laws, which was released at the end of June. As well as abortion being available for women up to 22 weeks’ pregnant, it has also been recommended and drafted that terminations will be available after 22 weeks where a second doctor is consulted and gives permission.

Another key aspect of the bill is that while it would be illegal for a hospital or facility to refuse a request for the procedure, an individual doctor will retain a right to conscientiously object – as long as they refer a woman seeking a termination to another doctor.

Despite this allowance for conscientious objectors, there has been strong pushback against the bill. On September 1, more than 2000 anti-abortion protesters marched down George Street in the centre of Brisbane. Federal senator Matt Canavan was one of several state and federal LNP MPs to attend and support the rally, and The Courier-Mail reported Canavan saying that the proposed bill would mean Queensland would have some of the most “extreme and radical” laws around abortion in the world. Mark Robinson, the Liberal National Party member for Oodgeroo, south-east of Brisbane, referred to Deputy Premier Jackie Trad as “Jihad Jackie” in a tweet on July 29 describing Labor as the “Abortion Party”.

In late August, Brisbane Catholic Archbishop Mark Coleridge sent an email to parents of children enrolled at more than 140 Catholic schools, writing: “This year, the pro-abortionists are talking about the fact abortion is a ‘health issue’. But the legislation they are presenting to the Parliament will allow for abortion until the moment of birth without one reference to health needs.” The Queensland state director of the Australian Christian Lobby, Wendy Francis, has written extensively on the ACL website about the bill being “just as radical as we thought”, and saying that “progressive abortion legislation leads to eugenics”.

During the past few months, the issue of selective-sex abortions has been repeatedly raised by pro-life campaigners often in combination with opinion polls. “A Galaxy Poll of over 1000 Queenslanders in March 2018 revealed 85 per cent opposed sex-selection abortions, but here we have Jackie Trad caring more about a women’s right to abortion than she does about the rights of unborn women [sic],” wrote Francis in a blog post on August 13 titled “Missing Women Phenomena Will Only Increase in Queensland”.

Douglas rejects this as a reason for objecting to the bill. She says Australia has already acknowledged that sex-selection practices in processes such as IVF are unethical, and the position for terminations based on sex would be the same. “They cannot sex-select when they are choosing which foetuses to allow to grow to full term in circumstances where the number of foetuses has dangerous impacts for the pregnant woman or for ensuring a live birth, the choice must be on health and viability,” she says, noting that “over 90 per cent of women have terminations without even knowing the sex because they have not yet had an ultrasound.”

There has been some concern around the constitutional validity of the safe access zone component of the bill with regards to free speech. Nicholas Aroney, professor of law at the University of Queensland, says the provisions relating to safe access zones are “vulnerable to constitutional challenge” because, unlike other Australian jurisdictions, they “fail to directly prohibit conduct which is ‘harassing, hindering, intimidating, interfering, threatening or obstructing’.” Were those provisions deemed unconstitutional, however, they would be severed rather than impacting on the rest of the bill’s contents.

Other Australian states vary in their approaches to the issue. The proposed bill most closely reflects the current position in Tasmania and Victoria with regards to gestation time frames. The ACT is currently the most progressive state, where terminations are considered a health issue and legislated only so far as dictating that they must be performed by a medical doctor.

The current legal position in Queensland is unclear for both women and doctors. Although abortion is illegal under the Queensland Criminal Code, there are defences for “medical necessity” that allow doctors to determine that a woman will be at risk either physically or psychologically were she to carry to full-term and deliver.

According to Douglas, this lack of clarity has concerning effects in practice, in that a woman in Queensland has a better chance of getting a termination if she is in Brisbane and if she has enough money to go to a pro-choice doctor or facility. “Women in rural and regional areas also tend to access termination services much later, which means it’s much more risky and expensive,” says Douglas. “They may go to the local doctor who says there’s nothing they can do, then the women go online and find out actually they can travel to Brisbane or interstate to access safe termination services, and they often then take time to get some money together to make the trip.”

A critical part of an individual doctor’s right to conscientious objection then becomes the companion requirement for that doctor to refer the woman to another provider, as, says Douglas, “this is an issue that particularly can affect people in remote and regional communities where there is only one doctor, and that doctor happens to be anti-choice”.

Premier Annastacia Palaszczuk has granted all Labor MPs a conscience vote. Currently, though, Labor holds 48 of 93 seats in the Queensland lower house, meaning if two Labor MPs vote against the bill it could fail, if the LNP does not allow its members a conscience vote. The Opposition leader, Deb  Frecklington, is yet to confirm whether LNP members will be given the freedom to vote on the bill as they please. A media representative from the LNP office told The Saturday Paper, “Once the parliamentary committee has reviewed the bill, the LNP party room will consider whether a conscience vote will apply.”

This article was first published in the print edition of The Saturday Paper on Sep 22, 2018 as "Labor push". Subscribe here.

Bri Lee
is a lawyer and the author of Eggshell Skull.