Nineteenth century laws still frustrating women

July 25, 2001
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BY JULIA HALDANE

The murder of a security guard at a Melbourne abortion clinic has prompted right-to-choose campaigners to step up pressure on state governments to scrap anti-abortion laws.

In Queensland, feminist groups, including the Brisbane International Women's Day collective, launched a campaign in April for the repeal of the state's 19th century abortion laws, hoping to pressure Peter Beattie's Labor government into removing the laws from the criminal code.

Spurred on by the tragedy in Melbourne, they are now intensifying their efforts in the lead-up to Abortion Rights Day on August 8.

Campaigners argue that so long as abortion is seen as a moral issue requiring legislative intervention, anti-choice groups can portray themselves as justified for protesting in the way that they do, and for violating the rights of women.

After all, such groups can claim, they are simply acting on their beliefs on an issue that the state formally recognises is a moral, rather than medical, one.

The Queensland government set up the Task Force on Women and the Criminal Code in 1998 to report and make recommendations on the impact of the state's criminal laws and criminal justice system on women. The report of the task force, released in March 2000, recommended the repeal of laws which criminalise abortion.

The IWD collective has called on the Queensland government to act on this recommendation, which would place pregnancy termination on the same footing as any other medical procedure.

Archaic criminal code

Queensland's abortion laws were enacted in 1899, and have remained virtually unchanged since then.

Section 224 of the Queensland criminal code states that anyone who performs an abortion is liable to 14 years' imprisonment. Section 225 states that any woman who aborts her own foetus, or willingly allows someone to perform an abortion on her, is liable to seven years' imprisonment, while Section 226 states that any person who supplies the equipment to perform an abortion is liable to three years' imprisonment.

These provisions are rarely enforced, but have been stubbornly kept on the books.

Section 282 provides a defence for the medical profession, by stating that "a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient's benefit or upon an unborn child for the preservation of the mother's life".

The laws, and other anti-birth control measures from the period, reflect the "populate or perish" mentality that pervaded Australia during the pre-federation era, when it was feared that black babies would outnumber white babies, and that Australia could be invaded by the "yellow hordes" of Asia.

Widespread confusion exists about the law on abortion. A 1999 public opinion survey indicated that 60% of Queenslanders believed abortion was illegal. This perception of illegality has been fuelled by a series of attacks on abortion rights over the last 20 years.

In 1980, the Queensland parliament attempted to pass the Unborn Child Protection Bill, in response to the opening of the state's first private abortion clinic. This was defeated after numerous large demonstrations.

Two years later, Right to Life Queensland supported a man in a legal attempt to prevent a woman from having an abortion, on the grounds that he was the man involved in the pregnancy. This was unsuccessful.

Then, in 1985, the Queensland police raided the clinics in Brisbane and Townsville, seizing thousands of women's medical records. Television news cameras accompanied the police, and footage of these raids has been frequently replayed on Queensland television.

Later that year, two doctors were charged v Bayliss and Cullin, 1986) and acquitted by the jury. This resulted in a relatively liberal interpretation of the law (the McGuire ruling) placing it on a similar basis to the laws in NSW and Victoria.

As a result of the ruling, abortion is currently legal in Queensland if it's performed in order to protect the woman's physical and emotional well-being. However, as Justice McGuire pointed out during the trial, this does not allow for abortion on demand, which leaves the legal status of abortion ambiguous.

In 1997, conservative independent MP Liz Cunningham received majority support for an amendment to Queensland's criminal code that states that human life begins at conception.

Pro-choice campaign

The attacks on abortion in the 1980s led to a vigorous campaign for the repeal of anti-abortion laws in the early 1990s, following the election of the first Labor government in decades.

"The IWD collective is committed to campaigning for the repeal of these reactionary laws", said collective spokesperson Coral Wynter. The group is collecting signatures on a petition to be presented to parliament on August 8, which is Abortion Rights Day in Australia. A rally and march are also planned.

Wynter pointed out, "The Labor Party in Queensland could change the abortion laws overnight if they had the political will to do so".

"The recent election in Queensland has seen the biggest win by Labor in the history of this state, with 67 Labor members of parliament out of a total house of 89 members," Wynter continued. "Forty percent of Labor parliamentarians are women, and four of the 19 cabinet members are women. Queensland has no upper house, so there is nothing else delaying a change in the law."

"If Beattie had the will to act on the recommendations of his own task force, these laws would be relegated to the garbage bin of history", said Wynter, "but it is clear that the Labor government would prefer to ignore the whole issue."

When members of the IWD collective picketed a recent state Labor conference, the deputy premier Terry Mackenroth told them that abortion was "practically legal", and that any woman who "really" wanted an abortion could get one.

A previous state Labor conference had passed a resolution stating that: "A Labor government shall amend the law so that all legal distinction between termination of pregnancy and other medical procedures should be abolished by repealing sections 224, 225 and 226 of the Queensland Criminal Code."

Unfortunately the motion included a provision which "recognis[ed] the right of members to a conscience vote in relation to this issue". The "conscience vote" has made Labor policy irrelevant by allowing members of parliament to make their own minds up on issues of abortion and conscription.

Alongside the IWD collective's campaign, Labor Party women are running their own campaign, but for reform rather than repeal the laws. They are seeking to legalise abortions only up to the fourteenth week of pregnancy. They reject repeal as a viable option at present, on the grounds that their research "indicates that a number of politicians will not vote for full repeal".

Reform or repeal?

IWD collective members are concerned that reform will appeal to parliamentarians as an easy way out of their dilemma, pointing to reforms passed in Western Australia in 1998 and the ACT in 1999 as examples of the dangers of such a path.

Although heralded as "abortion on demand", the WA legislation has not increased access for women, but rather added significant new restrictions to availability.

For instance, the upper limit of 20 weeks has meant that doctors are refusing to perform abortions past the sixteenth week of pregnancy, to ensure that they are not contravening the law.

The requirement for a woman to see two doctors introduces an unnecessary hurdle. Further, although there is a loophole to the requirement that the parents of young women under 16 must be notified, young women with unsympathetic families are unlikely to have the resources or confidence to apply to the Children's Court for an exemption in time to get a safe termination.

The ACT legislation, meanwhile, which requires that women are shown (factually incorrect) pictures of foetuses at various stages of development, followed by a three-day "cooling off" period, has the potential to create distress and delay.

The Queensland task force report seems to confirm some of campaigners' suspicions of limited reform, rather than outright repeal, stating: "Compromises in regulatory frameworks are generally intended to satisfy or placate some of the concerns raised by those opposed to abortion."

"Ironically, it is doubtful that they serve any purpose", the report notes. "Those opposed [to abortion rights] remain horrified by any attempt to improve access to abortions. Those who believe that abortions should be available are often frustrated by the new hurdles and feel dissatisfied. Those who suffer are the women who believe that the new law has improved access to abortion, and then find themselves in a bureaucratic medical maze as they work against time to fulfil the requirements of eligibility."

Whatever form compromise legislation on abortion takes, it will weigh more heavily on those women who are already disadvantaged — the poorest, least educated and with the fewest resources. Compromise legislation will encourage the minority anti-choice lobby to continue their attempts to force a further weakening of women's access to abortion, campaigners argue.

[If you would like to join the IWD collective to support its work, or for further information, phone Katrina on 0407 631 117 or write to the IWD collective, Box 5657, West End 4101.]

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