1.0 Introduction
Queensland's current abortion law outlined within the Queensland Criminal Code 1899 is limited in effectiveness in terms of protecting stakeholder rights, reflecting social norms and values and promoting fairness justice and equality. Abortion is an extremely controversial topic in today's society and requires reform as it causes unjust and unfair legal outcomes. Abortion law is outlined in s224, s225, s226 and s282 of the Queensland Criminal Code 1899. Queensland's abortion law is predominantly inconsistent in effectively ensuring the rights to life and family of the pregnant woman and the fetus being terminated. The current law also challenges fairness, justice and equality concerning enforceability and accessibility due to the legality of abortion in Queensland. In saying this, abortion law fails to uphold norms and values as well as adapting to social change in society. Abortion laws outlined in the Queensland Criminal Code 1899 are ineffective therefore reform is required to provide fair and just legal outcomes for stakeholders as well as upholding Queensland's current social norms and values. To improve the effectiveness of Queensland's current abortion law it is recommended that S282 (1) is amended to reflect Tasmania's current Abortion legislation to expand the defense for abortion which will protect stakeholder rights, promote fairness, justice and equality and reflect social norms and values.
2.0 Understanding the Law
2.1 Definition of Abortion
Abortion is defined as the termination of a pregnancy by removing the embryo or fetus (Webster, 2017).
Abortion is considered a criminal offence in Queensland under the Criminal Code 1899. Abortion is only lawful if the procedure is performed when a woman's physical and/or mental health is in serious danger.
2.2 Methods of Abortion
Medical Termination
The use of pharmaceutical drugs such as RU486, Mifepristone and Misoprostol to induce a termination of pregnancy (Queensland Clinical Guidelines, 2018).
Surgical Termination
A procedure during which the contents of a woman's uterus are surgically removed using vacuum aspiration and curettage to terminate a pregnancy (Queensland Clinical Guidelines, 2018).
2.3 Queensland Criminal Code 1899
Section 224 and 225 – Attempts to Procure Abortion
Abortion is illegal under section 224 and 225 of the Criminal Code 1899 which outlines the grounds for an unlawful abortion where "Any woman who procures her own miscarriage by unlawfully administering herself to any poison or other noxious thing or uses any force of any kind or permits any such or means to be administered or used to her, is guilty of a crime". The maximum penalty is imprisonment for 14 years. The sections mentioned above were evident in the case of R v Bayliss and Cullen, see 3.1 for case details.
Section 226 – Supplying Medication or Instruments to Aid in Abortion
Under S226 of the Criminal Code 1899 drugs or instruments supplied to assist a woman by a professional doctor or anyone who "unlawfully supplies to or procures the miscarriage of a woman is guilty of a misdemeanor". The maximum penalty is imprisonment for 3 years. This section has caused controversy in cases where rape as such has occurred and unlawful abortion is obtained from doctors which is considered as committing a "criminal offence". Section 226 is relevant to the case of the cairns couple were drugs were used to terminate the pregnancy, refer to 3.3 for further case details.
Section 228 (1) – Surgical Procedures and Medical Attention for Lawful Abortion
Section 228 (1) outlines a defense for lawful, legal abortions where a person is not committing a criminal offence if the procedure is performed "in good faith, with reasonable care and skill a surgical operation on or medical treatment for the patients benefit or unborn child to preserve the mother's life. If performing the operation or medical treatment is reasonable, having regard to the patients' state at the time and to all circumstances of the case". The maximum penalty is 2 years. Section 228 (1) is relevant to the case of Q, refer to 3.2 for details of the case.
2.4 Jurisdictions in Other Countries and States of Australia
As abortion law is a controversial topic, legality varies with jurisdictions in others states of Australia as well as other countries such as Ireland. Ireland has recently reformed the law to uphold social norms and values. Queensland outlines abortion as a criminal offence unless the procedure is performed to prevent injury to the woman's physical or mental health. In saying this, abortion in New South Wales is deemed lawful if it is performed to prevent injury to the woman's physical or mental health, which includes economic and social factors (Tabbot, 2017). On the contrary, abortion is permitted in Tasmania for up to 16 weeks, Northern Territory for up to 14 weeks, South Australia allows abortion with medical consent from two practitioners, Victoria permits abortion for up to 24 weeks, Australian Capital Territory do not lay out any guidelines in regard to abortion apart from stating that abortion must be performed in a "medical facility" and Western Australia allows abortion before 20 weeks if the woman would suffer serious personal, family or social consequences (Tabbot, 2017). Current abortion laws in Queensland are controversial and frequently talked about which is becoming an issue in modern day society.
2.5 Previous Attempts to Reform the Law
Two amendment bills were introduced to reform Queensland's abortion law in 2016 however they were both rejected. The first bill, Woman's Right to Choose was introduced in May 2016 by Mr. Robert Pyne MP to decriminalise abortion in Queensland by revoking sections 224, 225 and 226 of the Queensland Criminal Code 1899. The second bill, The Health Abortion Law Reform was introduced in August 2016 by Mr. Pyne MP to amend the Health Act 1937 to 'improve clarity for health professionals and patients in the area of medical termination of pregnancy'.
2.6 Recent Change in Ireland's Abortion Law
Abortion law in Ireland is outlined in the Constitution of Ireland. In 1983, after a referendum, an eighth amendment was added to and Ireland's abortion law. It recognizes an equal right to life for both the mother and the fetus, therefore prohibiting abortion in most cases. After a second referendum in 1992, two additional changes were made to the constitution – the thirteenth amendment and the fourteenth amendment. The thirteenth amendment stated that women were free to travel to other countries to access abortion. The fourteenth amendment said the constitution would not prevent people accessing information relating to "services lawfully available in another state". Prior to the 2018 amendments, abortions were permitted when doctors could determine if a woman's life was at risk from pregnancy complications or suicide, the maximum penalty for accessing an abortion illegally is 14 years imprisonment. In 2017, citizens of Ireland voted to replace or amend the part of Irelands Constitution where the availability of abortion is strictly limited. In May 2018 reform to repeal the eighth amendment from the Constitution of Ireland was successful. The eighth amendment was repealed and replaced by the phrase "Provision may be made by law for the regulation of termination of pregnancy" and women can access an abortion within the first 12 weeks of a pregnancy. However, after 12 weeks, abortions are only permitted where there is a risk to the woman's life or of serious harm to the physical or mental health of a woman, up until the 24th week of the pregnancy (BBC News, 2018).
3.0 Applying the Law
3.1 Case: R v Bayliss and Cullen
In the case of R v Bayliss and Cullen any person disappointed with Greenslopes clinic was encouraged to come forward. A 21 year old mother of three children made a complaint about the termination of a pregnancy performed in January 1985. Consequently, Doctor Bayliss and Dr Cullen were charged under the anti-abortion provisions of S224 of the Queensland Criminal Code 1899. The case was taken to court where the judge took a wide approach on exemption law, allowing doctors to terminate a pregnancy to preserve the "mental and physical well-being" of the mother. The prosecution of Doctor Bayliss and Dr Cullen would fail unless it could be proven that the abortion was not "for the preservation of the mother's life" and was not "reasonable regarding the patients' state at the time and to all the circumstances of the case". It was found that Doctor Bayliss and Dr Cullen were found not guilty due to the vague wording of the legislation (Kerr, 2014).
3.2 Case of Q
A pregnant 12-year-old from Queensland referred to as Q was denied abortion and had to go to the Supreme Court to authorise the abortion (Burke, 2016). She had to gain approval from her general practitioner, psychiatrist, social workers, specialist obstetricians before petitioning to the court to gain access to abortion. As she had a recent history of self-harm and attempted suicide, the court decided it was necessary to terminate the pregnancy with the use of Mifepristone and Misoprostol (Branco, 2016). Abortion remains a criminal offence in Queensland "unless it is deemed lawful", with an unclear definition of lawful (Burke, 2016). This case demonstrates the possibility of having access to abortion which is contradicted by the defense S282 as the 12-year-old had to seek approval from a judge to terminate the pregnancy. She should have been eligible for abortion under S282 (1) of the Queensland Criminal Code 1899 regarding the protection of a mother's life due to her history of self-harm and suicide attempts, yet, she was required to go to the Supreme Court to be permitted to gain permission to have an abortion in Queensland.
3.3 Case of Cairns Couple
A 19-year-old woman, Tegan Simone Leach and her partner, Sergie Brennan faced court on criminal abortion charges and were later found not guilty. Leach was charged under S225 for inducing her own miscarriage and Brennan was charged under S226 for attempting to procure an abortion by supplying drugs (Evans, 2011; O'brien, 2011). The couple organised Mr. Brennans sister to get misoprostol from a doctor in Ukraine and smuggle it to Australia after they decided they were too young to be parents. Ms. Leach successfully used the drug to induce a miscarriage at 60 days. As a result of the charges, Caroline De Costa, Cairns gynecologist has been forced to withdraw her service due to possible legal repercussions (Calligeros, 2009).
4.0 Recommendations
4.1 Retain the Law
Retaining Queensland's current abortion law outlined in S224, S225, S226 and S228 of the Queensland Criminal Code 1899 is an option where terminating a pregnancy is illegal unless the procedure is to protect the mother's life.
4.2 Legal in Serious Circumstances
An alternate option is to reform S282 (1) to expand the eligibility for abortion when serious circumstances such as rape, incest or deformation of the fetus are present. Abortion must be approved by a medical practitioner to determine a circumstance that will impact the child or mother's quality of life.
4.3 Abolish the Law
A final option is to abolish abortion law outlined in S224, S225, S226 and S228 of the Queensland Criminal Code 1899 which will decriminalise abortion in Queensland.
4.4 Recommendation
It is recommended that S282 (1) of the Queensland Criminal Code 1899 is amended to reflect Tasmania's current Abortion legislation which will improve consistency, transparency and resource efficiency. Tasmania's abortion law under S4 of the Reproductive Health (Access to Termination) Act 2013 states that "The pregnancy of a woman who is not more than 16 weeks pregnant may be terminated by a medical practitioner with the woman's consent". It is recommended that a section is added to S282 (1) of the Queensland Criminal Code 1899 that consists of the termination of a pregnancy to be performed by a professional medical practitioner with the consent of the woman. A survey was conducted to obtain the opinion of valuable stakeholders in society, it was found that 78% support a woman's right to have access to abortion (refer to appendix D), 93% believe all Australian states and territories should have the same abortion laws (refer to appendix F) and 90% support a change to Queensland current abortion law to make Abortion legal in Australia (refer to appendix H). By adopting Tasmania's current abortion law effectiveness of the Queensland's abortion legislation will be improved as the right to life and right to family is upheld, it will be consistent with other states of Australia and it will provide fair, just and equitable legal outcomes.
5.0 Investigating Legal Issues and Evaluating the Law
5.1 Protection of Stakeholder Rights
Queensland's current abortion law under the Queensland Criminal Code 1899 is ineffective in protecting the rights of vulnerable stakeholders. Women requiring an abortion have the right to medical health services under Article 25 of the Universal Declaration of Human Rights (referred to as UDHR onwards) supported by the Human Rights Committee as it is recognised that denying a pregnant woman access to safe legal abortion services is an interference in their life as well as protecting the physical and psychological state of women which is relevant to the case of Q, refer to 3.2. The right to health is currently being violated due to abortion being criminalised in Queensland. In 2012 almost 49% of pregnant women who intended on terminating the fetus often resulted to illegal and unsafe abortions often using abortion pills such as RU486 (Simmons, 2012), relevant in the case of the Cairns couple, refer to 3.3. Women who resort to unsafe abortions are generally subjected to severe injury, maternal health issues or death. 56 million abortions are performed worldwide per year, approximately 50% of pregnancies procured are unsafe and illegal (Reuters, 2017). Access to safe abortion is essential to uphold article 25 of the UDHR and to decrease the current rate illegal abortions.
Additionally, article 3 of the UDHR suggests that every human has the right to life, liberty and security of a person. Due to the criminalisation of abortion, woman engage in illegal and unsafe abortions which have constituted the leading cause of maternal mortality (Stevenson, 2016). Queensland's current abortion law abuses a woman's right to choose if she wishes to carry the child until birth or not as well as her right to liberty being deprived for 7 years for seeking alternate health care to terminate the pregnancy (Flinders, 2011).
Furthermore, children are entitled to the right to grow up in a safe environment and Queensland's current abortion law violates that right. Studies prove that children born after denied abortions were at increased risk of psychiatric and counselling referrals, alcoholism, delinquency and criminal activity were twice as common (Grimes, 2017). Abortion has an effect on the community as it was proven that crime rates decreased in America in the 1990's due to abortion being legalised (Barro, 1999). In saying this, the Queensland Criminal Code 1899 is ineffective in protecting the rights of helpless women and reform is required to expand the defense for abortion for up to 16 weeks into the pregnancy.
5.2 Fairness, Justice and Equality
The current law regarding the termination of a pregnancy in Queensland is ineffective in upholding the core legal values of justice, consistency and enforceability. Queensland's legislation supports the injustice of women who fall pregnant as a result of rape and having to carry and conceive the child or be subjected to criminal charges (Nolan, 2016). Under the Queensland Criminal Code 1899 rape, incest and fetal anomaly are not sufficient grounds for a lawful abortion (Uibu, 2017). This is evident in the circumstances of X, a young university student form Queensland who was raped and unfortunately became pregnant, she went to her public hospital to seek an abortion however they denied due to the legality of abortion in Queensland although she was subjected to mental and physical trauma which are grounds for abortion. She had to travel to Victoria and pay $10 000 for the termination to occur. Additionally, when unwanted pregnancies occur, and the mother has no other choice but to follow through with the pregnancy until birth, the biological father of the child, in some circumstances, the rapist legally gain parenting rights which may place the mother and/or child in severe danger (Nolan, 2016).
Furthermore, the current abortion law limits consistency and accessibility. Queensland as well as New South Wales are the only two states in Australia that have not legalised abortion up until a number of weeks into the pregnancy, in saying this, abortion legislation in Australia is inconsistent (The Tabbot Foundation, 2017). Moreover, equality is not upheld as women in certain states are granted access to abortion and women in Queensland are not. Therefore, woman who require an abortion due to their circumstances are denied abortion and they could be prosecuted if they used alternate methods to procure the pregnancy whereas woman in other states have abortion available to them, legally (Goetze, 2017). Enforceability is challenged by Queensland's current abortion laws as 22% of pregnant women who are denied abortion were forced to travel interstate to access safe medical and surgical abortions performed by professional medical practitioners (Jepson, 2018). By expanding the defense for abortion to allow for termination of the fetus for up to 16 weeks into the pregnancy, Queensland's abortion legislation will improve the suitability of legal outcomes as fairness, justice, equality, accessibility, consistency and enforceability will be promoted.
5.3 Social, Norms and Values
In addition, Queensland's abortion law outlined in S224, S225, S226 and S282 of the Queensland Criminal Code 1899 supports an outdated belief no longer present in today's modern society. The results of a survey conducted support this statement, stating that 90% of people would support a change to current abortion law to make it legal in Queensland (refer to appendix H), with 93% of people claiming all states of Australia should have to same abortion laws (see appendix F).
In saying this, the 2003 Australian Social Attitudes conducted a survey, it was found that 4 out of 5 voters wanted the law changed so abortion is decriminalised (Auspoll, 2009) and in 2003 a survey was published in the Medical Journal of Australia which found that 90% of doctors agree that abortion should be available in all states and territories of Australia (Costa, Russell, Carrette, 2017). This represents a significant change in social norms to now support a woman's rights. Actions have been taken to legalise abortion, in 2016 MP Rob Payne introduced a Bill to Queensland Parliament to decriminalise abortion in Queensland (Marchesi, 2017). Furthermore, there has been a decline in religious beliefs influencing views on abortion, positively impacting current social values, as a result, society is adapting to be more open eyed and significantly in support of a woman's rights (Arbor, 2016). It is evident that the evolving social norm of supporting a woman's rights is impacting legislation worldwide, Irelands abortion law outlined in the Constitution of Ireland recently reformed their legislation to decriminalise abortion. Reform to the Queensland Criminal Code 1899, S282 (1) is required to expand the defense for abortion and respond to current social norms and values present in Queensland.
6.0 Conclusion
Queensland's abortion legislation, outlined in S224, S225, S226 and S282 of the Queensland Criminal Code 1899 is limited in effectiveness and requires reform to adopt Tasmania's abortion law under S4 of the Reproductive Health Act 2013. Currently, the Queensland Criminal Code 1899 fails to uphold stakeholder rights, the mother and the fetus' right to life and family as well as the child's quality of life based on the right to grow up in a safe environment. Additionally, consistency, justice, enforceability and accessibility are not upheld by the current law therefore resulting in pregnant women engaging in unsafe, illegal abortions or carrying the child until birth. Furthermore, Queensland's current abortion law does not reflect and adapt to current social norms in society nowadays. Finally, Queensland's law regarding the termination on a pregnancy must be reformed to reflect Tasmania's abortion law which is more effective.