Abortion referred to Queensland Law Reform Commission

In a move similar to the one that preceded abortion law reform in Victoria and Tasmania, Queensland state attorney-general and justice minister Yvette D’Ath has referred abortion to the Queensland Law Reform Commission (QLRC). It has been tasked with drafting legislation to modernise abortion law in Queensland. The current laws date back to 1899 and haven’t been amended since.

The terms of reference for the report and draft legislation appeared quietly on the QLRC website on 20^th June. The referral had been awaited since February 28 when Independent MP Rob Pyne withdrew from parliament his bills to decriminalise and regulate abortion. Those bills had been due to be debated the following day. In a February 28 media statement, state Labor premier Annastacia Palaszuk, deputy-premier Jackie Trad and attorney-general Yvette D’Ath pledged to refer the issue to the QLRC and that in the next term of government, Labor would introduce legislation, based on the QLRC recommendations, to “modernise” the state’s abortion laws.

At the time the promise was made to seek the commission’s advice and legislate in the next term of government, campaigners and doctors pointed out that putting it off until then introduced uncertainty, as the make-up of the next government is not yet known.

Over 1000 people signed a change.org petition calling on the Labor leaders to refer the issue immediately to the QLRC, have it report quickly and then move to make abortion legal in Queensland in 2017.

However, under the referral, the QLRC is not required to make its report until June 30, 2018, after the latest time for the next state election (May 5).

While the terms of reference for the QLRC report fall short of requesting advice on simple, complete decriminalisation of abortion, it does request advice on removing abortion performed by a medical practitioner from the criminal code, and for clarification of abortion law in the state.

Most abortions in the state are performed or prescribed by doctors, so removal of these from the criminal code would be an immense advance for the provision of abortion in Qld to be legal.

However, because of the lack of access to abortion provision by doctors, some Queensland women induce their own miscarriages without medical support.

An ABC report on 21 June quoted the manager of the state’s central pregnancy counselling and abortion referral agency Children by Choice, who said she saw “about one woman a fortnight who was considering” inducing her own miscarriage.

"We have women who either tried, or have asked how to do it," she said.

The most recent prosecution for abortion under the state’s criminal code was in relation to an abortion obtained by a woman with her partner’s help, without a doctor’s authorisation.

The narrowness of the terms of reference means that such pregnancy terminations (and help from non-medical support people) will potentially remain crimes. It’s not illegal for someone to manage their own healthcare needs without trained professionals, and separate legislation already prohibits people who are not health practitioners from providing healthcare that needs training. Making abortion by a medical practitioner legal is likely to reduce the number of women seeking to induce their own miscarriage, but singling out self-induced miscarriage as a crime threatens to punish women (and anyone who helps them) for the failings of a system that currently lets them down.

Furthermore, in some countries, trained health practitioners apart from doctors perform abortion. Given the refusal of many doctors to perform abortion, if the proposed bill only decriminalises abortions provided by doctors, it closes the door to other health practitioners – with proper training and qualifications, within their scope of practice – legally stepping in to fill the gap left by doctors refusing care.

On the other hand, the terms of reference instructs the QLRC to have regard to existing practices and services in Qld, existing legal principles, the government’s commitment to modernise and clarify the law, the recent parliamentary enquiries into abortion (held in consideration of Rob Pyne’s bills), the views of experienced clinicians, the views of the Qld community, and the laws in other jurisdictions.

Within such a scope, it will no doubt be possible to put forward arguments that a modern criminal code has no room for provisions that make abortion a crime.