Abortion law in Australia is state law, and the law varies considerably from one jurisdiction to another. Currently in Victoria, New South Wales and Queensland abortion is still covered by the Criminal Codes. However this matter is under review in Victoria where the Victorian Law Reform Commission has been charged by the Premier with the task of reforming the state’s abortion law and, hopefully, removing abortion from the Crimes Act. As abortion practitioners in Queensland, we believe strongly that reform is also urgently needed in this state.

In Queensland, Section 224 of the Criminal Code Act 1899 (Qld) imposes criminality on anyone who “with intent to procure the miscarriage of a woman … 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…”

The penalty is imprisonment for 14 years. Furthermore, section 225 of the same Act imposes liability on the woman herself for procuring an abortion, and section 226 creates a misdemeanour for supply of “anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman”. The legislation is thus both broadly drafted and potentially severe in its consequences for medical practitioners.

In 1986, Doctors Bayliss and Cullen were prosecuted in the District Court of Queensland under section 224. Justice McGuire was asked to rule on what would be considered “lawful” as the word is used in section 224, taking into account section 282 of the Criminal Code, which allows for “surgical operations” on the child or mother “for the preservation of the mother’s life if the performance of the operation is reasonable, having regard to the patient’s state at the time and all the circumstances of the case.”

Based on existing case law from Australia, the United Kingdom and Canada, His Honour determined that in Queensland, an abortion would be lawfully performed if it were “necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being the normal dangers of pregnancy and childbirth) which the pregnancy would entail, and in the circumstances of the case, not out of proportion to the danger to be averted.”

Doctors Bayliss and Cullen were acquitted, and the case has since been seen by Queensland doctors who perform surgical abortions as providing both guidelines to their practice, and a potential defence in the (probably unlikely) event of a public or private prosecution being instigated against them in a particular case. Considerable uncertainty, however, does surround the practice of medical abortion, since the specific term “surgical operation” is used in section 282.

Late medical abortion (after 14-16 weeks of pregnancy) has been practiced in Queensland hospitals, public and private, for at least 20 years since the introduction of antenatal screening for Down’s syndrome and other fetal abnormalities, and the availability of the drug gemeprost – a synthetic prostaglandin licensed by the TGA for use throughout Australia for the purpose of abortion. More recently, the more effective, and cheaper, synthetic prostaglandin misoprostol has been used for late abortion in Queensland.

Late abortions make up only about 1% of all abortions performed in Australia; the majority of these are for severe fetal abnormalities which, with current technology, can only be detected relatively late in pregnancy. Some late abortions are also done for women with serious medical or psychiatric conditions. Almost none are done purely for social, economic or personal reasons; most women requesting abortion for such reasons (and most women have a number of factors for their requests) do so before 8 weeks of pregnancy and the great majority by 12 weeks.

More recently early medical abortion has become available in Queensland, to a small number of women. Two of the writers (Caroline de Costa, Michael Carrette) have been granted approval by the TGA to use mifepristone (RU486) together with the drug misoprostol, readily available in Australia, for the purpose of medical abortion in their practice in Cairns. Marie Stopes International is offering methotrexate/misoprostol early medical abortion in clinics in southeast Queensland and in Cairns one of us (Darren Russell) who does not have access to mifepristone, has performed over 50 medical abortions since April 2007 using methotrexate and misoprostol. This has given women more choice, but is not the preferred method.

Although all the counselling and care of the women treated in Cairns complies with the spirit and general direction of the McGuire judgment, and it is unlikely that a prosecution would be attempted of any of us, it is of concern that the practice of medical abortion, unknown and unforeseen at the time (1899!) that the Criminal Code was passed through the Queensland Parliament, is not very clearly deemed “lawful” in appropriate circumstances.

The situation of mifepristone was considered by the Queensland government, who in April 2006 sought the advice of the State’s Solicitor-General and issued a Cabinet statement. The government’s view was that where the TGA had approved use of a drug, prescription of that drug was lawful in Queensland under the Health (Drugs and Poisons) Regulation 1996 (Qld) and that further amendment to Queensland legislation was not required.

The 1996 Regulation is the mechanism that allows Queensland-registered doctors to prescribe drugs licenced by the TGA. These are listed in the Integrated Standard Drug List for Queensland Hospitals which is updated regularly by Queensland Health. Misoprostol is listed in the current issue for the purpose of therapeutic abortion although it is not licenced for this purpose by the TGA; methotrexate is listed as a cytotoxic and for the treatment of psoriasis and rheumatoid arthritis. Both drugs are therefore used “off-label” for abortion.

Mifepristone is currently not listed at all. Approval for use by ourselves arises from a personal licence from the TGA. Whether in fact our approval from the TGA to prescribe mifepristone would be sufficient to make it “lawful” in Queensland when a statutory regime for lawful prescription of drugs exists remains uncertain. Either legislative change at state level, or the approval of the TGA to a company to market the drug in Australia, and hence the listing of mifepristone by Queensland Health, is required to clarify this situation.

In addition, if the granting of a licence to us by the TGA does make the prescription “lawful”, an anomalous situation is created whereby the performance of surgical and medical abortion have different legal requirements in Queensland . While a doctor prescribing drugs for medical abortion would need only to comply with either the terms of the List, or the particular licence granted by the TGA, a practitioner performing a surgical procedure would need to satisfy the requirements of section 282 and the interpretation in the Bayliss and Cullen decision in order to avoid criminal liability.

Another complicating feature may arise in the context of section 225 of the Criminal Code, which creates a crime for a woman who administers to herself substances to induce abortion. While mifepristone is administered to a woman in a hospital or clinic, misoprostol can be administered by the woman herself at home, and many overseas studies have shown this to be a safe and effective procedure. There needs to be change to the law to ensure that when a drug is prescribed by a practitioner it may be lawfully administered by the woman herself.

Quite apart from the uncertainty surrounding medical abortion, there is an urgent need to remove abortion altogether from the Criminal Code in Queensland. The majority of Australians believe that safe, legal abortion should be accessible to all women – even though many believe that they or their partners would never themselves require or use an abortion service. The continuation of abortion in the Criminal Code leads many doctors to avoid practicing abortion themselves – even though most general practitioners want to be able to refer their patients to safe affordable abortion services when they need them. (And of the present population of Australian women of reproductive age, an estimated one in three will have an abortion, including many who would profess themselves publicly as opposed to abortion.)

The continuation of abortion in the Criminal Code also leads many Queensland women to continue to believe that abortion is something underhand and unsavoury, and some women still believe it to be illegal in the state.

Queensland abortion law needs to reflect current abortion practice and the wishes of the majority of the population. Abortion should be excised from the Criminal Code, and early abortion be a matter for a woman and her doctor. Late medical abortion requires some regulation, but within the legislation affecting the practice of medicine and the provision of health services, not within criminal law.

Recent research in Queensland suggests that pregnant women in rural areas and those who are public patients do not have the same level of access to antenatal screening services for fetal abnormality, and subsequent termination of pregnancy, if that is their choice, as do women who are private patients or live in urban areas. All Queensland women deserve the same opportunities to make choices for themselves in pregnancy and this includes the decision to terminate a pregnancy for serious medical reasons.

In 2002 the Beattie government commissioned a Task Force to report on Women and the Criminal Code; the report of this committee strongly recommended reforming abortion legislation in Queensland. Though the Cabinet statement of April 2006 was welcomed by the authors, as was the public support given to us by the then Premier and other members of the Queensland Parliament, we believe the time has come for a thorough overhaul of Queensland abortion law and removal of abortion from the Criminal Code, consistent with the recommendations of the Task Force.

Furthermore, there are discrepancies between abortion law, and abortion practice, in all states throughout the country. Recent changes to the law in Western Australia, for example, although well-intentioned, have in fact made access to late medical abortion very difficult for some women, who, it appears from the statistics available, are travelling to Victoria to have procedures carried out. With Labor governments at all levels in Australia, there has never been a better time for abortion law to be reformed and made uniform across the country.

We call upon the Queensland government to follow the Victorians’ example and undertake legislative change in the state.