Out of the shadows: abortion in Queensland
On 16 October 2018 I climbed the elegant timber staircase that leads to the public gallery of Queensland’s Parliament House in Brisbane, and seated myself in the front row. The House is a magnificent building that has aged gracefully; constructed of sandstone, with a copper roof, ornate ceilings and splendid painted friezes, it is surrounded by parklands that help keep it cool in Brisbane summers. Building began in 1864, and took 25 years. Throughout that time, Queensland was a colony, part of the British Empire, ruled by Queen Victoria.
Much of the criminal legislation of Queensland also dates back to the same Victorian era. The Queensland Criminal Code was written and promulgated in 1899, just prior to Australian Federation; sections 224–226 of the Code, however, were taken almost word-for-word from earlier legislation: the English Offences Against the Person Act of 1861. These sections deal with the matter of abortion, and they contain none of the charm of the building in which they were conceived. Instead they are brusque, promising years of imprisonment with hard labour to any woman convicted of attempting to procure an abortion for herself, anyone attempting to perform an abortion, and anyone assisting. Note the word attempting – the abortion did not need to be successful. Nor did the woman need to be pregnant, she had only to fear that she might be, that fear leading to her action; these laws date from a time long before pregnancy could be confidently diagnosed by two blue lines glimpsed in the privacy of a woman’s own bathroom. There was a defence for a doctor prosecuted for abortion in section 282 of the Code, if it could be shown that a ‘surgical operation’ was necessary ‘for the preservation of the mother’s life, if the performance of the operation (was) reasonable’; but what doctor would want to risk prosecution and a possible prison sentence to perform such an operation?
Unlike the building, these laws did not mature and grow more graceful with the passing years. Rather, they contributed mightily to the shame, stigma and secrecy surrounding abortion in Queensland, and to the deaths of hundreds and maybe thousands of Queensland women, as well as to the chronic ill-health and infertility of many others.
Ostensibly, the laws were intended to protect women from the hands of untrained ‘backstreet’ abortion providers, whose ministrations often led to severe bleeding or infection. But they were also designed to punish women who dared to stray outside the accepted 19th-century boundaries of female sexuality, when women were supposed to engage in sex only within marriage, for the purpose of procreation of any number of children. Never mind if a woman was single, or raped, or poor, or very young, or the victim of domestic violence, or forced into sex she did not want with a partner or husband, and had no wish for procreation.
The legislation did not work even for its stated purpose. My research in the state archives in outer Brisbane showed many death certificates in the period 1899–1970 for women who died from ‘miscarriage’ or ‘peritonitis’ that were probably from illegal and unsafe abortion; doctors wanted to spare families the shame of such a diagnosis. But some coronial reports speak the truth. In 1912 Alice A, aged 42, a farmer’s wife and mother of seven children, died in Ingham hospital after swallowing toxic chemicals: savin and pennyroyal. In 1932 Lizzie H, a mother of five, died in Ipswich Hospital after a local chemist attempted an abortion with a syringe. In 1933, Rita L, a single woman of 23, died in Goondiwindi from sepsis after attempting abortion with ‘a yellow knitting needle, broken in three pieces’, which was produced in court. Doctors right across Queensland would have been very familiar with such scenarios, but although many of them would have been sympathetic towards the women concerned, there was little they could do to save or cure them, even after the introduction of antibiotics at the time of the Second World War. And with abortion in the Criminal Code, very few doctors ever contemplated openly performing an abortion in a hospital, even when section 282 might have protected them because the procedure would have been done in the interests of the woman’s life.
So it was with great interest that I climbed those parliamentary stairs last October and sat watching the two days and one evening of the debate and vote on the Termination of Pregnancy Bill 2018, designed to end the laws that had been in force for 119 years.
The situation around abortion in Queensland began to change in the 1970s. In Victoria and New South Wales, where there was criminal legislation similar to Queensland’s, the Menhennitt and Levine judgments, of 1969 and 1972 respectively, had provided case law which meant a registered medical practitioner could legally perform an abortion in certain circumstances. In Victoria Dr Davidson and in New South Wales Dr Wald had been acquitted of charges of abortion when the judges ruled that the doctors had acted in good faith to preserve the life or health of the woman. As a result, clinics providing surgical abortions (medical abortion had yet to be developed) were cautiously opened in both states, and Queensland women who were aware of the existence of these, and had the means to travel, began to avail themselves of their services. However, information for women about abortion, and even about contraception, was virtually non-existent in Queensland.
In 1971, Brisbane members of the Humanist League and others decided to establish a branch of the Abortion Law Reform Association. ALRA branches had been very successful in the movements to decriminalise or legalise abortion elsewhere in the English-speaking world. The aims of the original members – teacher Beryl Holmes, social worker Liz Pasmore, Dr Trevor Sauer, Dr Janet Irwin and others – were to press for sex education in schools, family planning services and women’s right to choose abortion.
The founding members quickly discovered that there was an enormous unmet demand for the provision of information about abortion, quite apart from the provision of abortion services themselves. In 1972, ALRA members decided to set up an organisation to be called Children by Choice, which quickly became a referral service for women travelling interstate for safe abortion. Children by Choice exists to this day, and is a unique organisation that provides women experiencing unintended pregnancies with information about their options, as well as counselling and referral for abortion if that is their choice. Children by Choice staff and supporters have also taken on political roles and were very involved in recent campaigns for Queensland abortion law reform; by the time the vote was approaching in the House on the evening of 17 October, many were gathered in the Public Gallery, including some of the women who had been part of those early days.
In 1977, Dr Peter Bayliss moved to Queensland. He had worked in the first abortion clinic in Victoria, set up by Dr Bert Wainer and his wife Jo in Melbourne after the landmark Menhennitt decision, and he opened an abortion service at Greenslopes in suburban Brisbane, relying on the interstate cases for a defence should he be prosecuted under the Criminal Code. In 1983, Dr David Grundmann opened a similar clinic in Townsville.
Dr Bayliss’s clinic went about its work openly for eight years up until 1985, although it was certainly the object of much polarised debate in Queensland, including among parliamentarians. There were numerous attempts by members of Queensland’s Right to Life lobby group to shut it down; undoubtedly, these attempts were supported by Premier Joh Bjelke-Petersen. However, Bayliss was popular with the Queensland media who regarded him as a ‘colourful’ figure. He appeared often in television debates, defending the right of Queensland women to access abortion, and publicly challenging the Right to Life group to prosecute him. His nemesis was Right to Life Queensland secretary Winifred Egan, who called constantly for Bayliss’s prosecution under the Criminal Code. Eventually the police did act – though not as a result of private pressure by Egan but following the directions of Justice minister Neville Harper, who was probably motivated by a belief that he had the approval of the Premier and therefore the prospect of furthering his political career.
On the morning of 20 May 1985, Peter Bayliss was calmly operating in his clinic when more than 50 police arrived in a bus and burst through the door, armed with search warrants. They were accompanied by ‘specialist gynaecologists, anaesthetists, nurses, government medical officers, pathologists and forensic biologists’ – their presence necessary, according to Assistant Police Commissioner Bill McArthur, ‘to ensure the welfare of any patient requiring emergency attention.’ The clinic was surrounded with crime scene tape, and police technicians with crowbars began to dig up the building’s drains – fruitlessly, as it turned out. Other specialist police technical staff, said the Assistant Commissioner, included photographic and fingerprint experts. ‘We were outnumbered four to one,’ Bayliss later said. ‘You could have robbed every bank in Brisbane at that moment.’
More than 45,000 case history cards, filed alphabetically in more than 300 boxes, were seized by police and taken away in trucks. Another smaller raid on Dr Grundmann’s Townsville clinic netted 2000 further case records. The bearded Bayliss was driven away in a squad car – looking unruffled and smoking his pipe – when he refused to give an undertaking to police that he would not continue to conduct terminations of pregnancy in the clinic. He was charged under section 224 of the Criminal Code with having ‘conspired with persons unknown to use force to procure an abortion’ and released on bail. It appeared that police were planning to trawl through records to find a patient or patients with whom he might have ‘conspired’ in order to try to convict him. Dr Grundmann was similarly charged.
Initial public statements by police and the Justice minister were smug. ‘The raids followed several months of secret investigation and planning by specially selected police officers,’ said a police spokesman. Then as the reality of the clinic invasion and the seizure of personal records became clear, there was a huge outpouring of public concern and anger, and public opinion quickly turned against the government. Children by Choice organised a well-attended public meeting in City Hall. On May 24, a survey of Brisbane residents commissioned by the Courier-Mail and TVO Eyewitness News showed that 78 per cent of Queenslanders disapproved of the police raids on the clinics, and a similar percentage believed that it was a woman’s right to choose whether she should terminate a pregnancy. Parliamentarians were receiving hundreds of letters and phone calls from concerned citizens – particularly women who had been patients of the Brisbane and Townsville clinics and their partners and families, but also many others alarmed by the attack on civil rights.
Dr Bayliss himself was not idle. While Dr Bert Wainer organised colleagues to keep the clinic open, he and his lawyers filed a complaint with the Supreme Court of Queensland seeking the return of the files. Early in June, three senior judges of the Court ruled unanimously that the search warrants used to raid both the Brisbane and Townsville clinics were invalid, charges against the doctors were dropped, and costs of the court actions were ordered to be reimbursed to them. The Justice minister was also dropped – from the Cabinet.
The return of the records and the throwing out of the charges was, however, far from the end of the matter. In June of 1985 Des Sturgess QC, the state’s Director of Public Prosecutions, took the unusual step of calling upon clients of the Greenslopes clinic to come forward with any complaints they might wish to make against Bayliss. This followed the surprising suggestion by the Justice minister, on the television program 60 Minutes, that it would be appropriate for his department to initiate a criminal prosecution against one or more doctors in order to test the limits of existing legislation (that is, of sections 224–226 of the Criminal Code). Clearly such actions would have been a misuse of criminal proceedings.
It is noteworthy that not once throughout the public furore that surrounded the raids, nor indeed at any time previously, did even one of the 47,000 women whose records had been seized make a complaint against either of the doctors or suggest that their abortions had not been properly carried out. Now it was being reported on the radio that the Director of Public Prosecutions was seeking women willing to testify against Dr Bayliss, and at last one woman did so. This woman, Tracey T, who had undergone a procedure at the Greenslopes clinic in early 1985, later admitted in court that she had believed she would receive some financial reward from making such a complaint, and that this was the reason she brought her complaint to the DPP’s office. (Unfortunately for her, there was no such financial incentive.)
So Dr Bayliss was again charged under section 224 with unlawfully using force to procure an abortion, and this time the prosecution had an actual patient: Tracey. Dr Bayliss’s anaesthetist for the operation was Dr Dawn Cullen, who was also charged under section 224. The trial, which took place in late January of 1986, would become a landmark, although not in the way intended by Des Sturgess. Both doctors pleaded not guilty to the charges.
The trial took place in the District Court in Brisbane and the judge was Frederick McGuire, who at the age of 57 had been twelve years on the Bench. Sturgess himself led the prosecution. The public gallery overflowed with lawyers, doctors, pro- and anti-abortion supporters, members of Right to Life and of radical women’s organisations. Those who couldn’t fit into the court room stood outside under the trees around the Court complex.
From the beginning Sturgess sought to portray Bayliss, and to a lesser extent Dawn Cullen, as running ‘an abortion factory’ – there was no evidence, he said, to suggest that Mrs T’s procedure was ‘any attempt to be a lawful operation.’ Referring to Mrs T’s record cards from the clinic, he described her consultations with a counsellor, two doctors and a nurse as ‘perfunctory and superficial.’ She is, he said, ‘a sturdy woman.’
But the ‘sturdy woman’ herself thought otherwise. Under cross-examination from the defence lawyers, Tracey said that she had told a counsellor at the clinic that at the age of twenty she could not cope physically, mentally, emotionally or financially with a fourth child. According to her lawyers, she met the criteria of the defence section, 282, of the Criminal Code.
Justice McGuire addressed the jury, and the subsequent 56-page document he wrote provided the McGuire ruling upon which, for the past 33 years, doctors performing abortions in Queensland have relied for support if prosecuted. Essentially, McGuire ruled that ‘the doctor(s) held a belief on reasonable grounds that the operation was necessary to preserve the life and health of Mrs T.’ McGuire referred to both the earlier Menhennitt and Levine judgments in reaching his conclusions. Following the judge’s address, the jury of eight women and four men returned a unanimous verdict of ‘not guilty’ for both Bayliss and Cullen.
McGuire, in the introductory remarks of his written judgment, said: ‘I think it fair and proper that there should be some authoritative guidance offered to the public and the medical profession, whether it comes from the Parliament or the Courts, or both, on the thorny problems to which the subject of abortion gives rise. The task before me is a responsible and formidable one. I approach it, as best I can, free of emotion and predilection.’ By the time he reached the end of his deliberations, he was very clear on just one thing: ‘This Ruling serves to illustrate the uncertainty of the present abortion laws of Queensland. It will require more imperative authority (either the Court of Appeal or Parliament) to effect changes if changes are thought to be desirable or necessary with a view to amending and clarifying the law.’
However, apart from some minor changes to section 282 in 2009, adding medical abortion using drugs to the wording of section 282, successive parliaments recoiled from every suggestion that the antiquated Victorian-era abortion laws be in any way updated or amended.
Nevertheless, abortion did gradually become more available to Queensland women. To understand how this happened it’s first necessary to understand that there are big differences between the way abortion is practised in early and later pregnancy, why it may be requested in these two situations, and where and by whom it is provided, although practice in Queensland is very similar to that in all states and territories across Australia.
Around 95 per cent of all abortions are performed in the first trimester, the first fourteen weeks of pregnancy, for medical, psychological, financial or social reasons, or a combination of these. (As anyone concerned in the provision of abortion services can testify, ‘social’ often covers severe economic hardship, single motherhood, domestic violence, incest and sexual coercion, and in general women do not make the decision for abortion lightly.) Until 2006 these were always done surgically, in licensed clinics or hospitals, almost exclusively in the private sector. In 2006, legislation in the federal parliament brought as a private members’ bill by four cross-party women senators overturned earlier legislation – the ‘Harradine Amendment – that had prevented the import and use of the drug mifepristone (RU486) in Australia. In that same year, Dr Mike Carrette and I, working in Cairns, became the first doctors in Australia to use the drug for early medical abortion (EMA). Gradually, more doctors joined us and the drug was fully licensed by the Therapeutic Goods Administration in 2012. In many urban areas of Queensland women have for years now been able to choose between medical or surgical methods for an abortion in the early part of pregnancy, as private providers, particularly the Marie Stopes Australia organisation, have established clinics.
However, because of the spectre of the Criminal Code, only a small number of other doctors have been willing to provide early abortions, both surgical and medical, keeping the practice of abortion, and discussion around it, very much in the shadows. Early abortion, at the time of writing, is not available in the public hospital system in Queensland, apart from the unique service of early medical abortion set up by the Sexual Health Clinic in Cairns Hospital under the direction of Dr Darren Russell, who has worked closely with myself and Mike Carrette.
Many women in rural and remote areas of the state, and still quite a few in the larger towns, have had difficulties accessing both information about services, and the services themselves, particularly if the general practitioners in their area hold religious or other objections to abortion. However, even doctors who have provided abortions have needed to consult with the woman and determine that her physical and/or mental health will be at risk if she continues the pregnancy, in accordance with the dictates of the Criminal Code; the ever-present possibility of prosecution has kept abortion in a very grey area for many doctors.
The remaining 5 per cent or so of abortions take place later in pregnancy – that is, later than fourteen weeks; most are done by twenty weeks of pregnancy but a small number later than this. By far the most common reason for these late terminations is the discovery of a severe and often life-threatening abnormality in the foetus; sometimes a severe medical condition in the woman means termination is recommended.
There is now high quality, very sensitive screening for foetal abnormalities which is offered to all pregnant women having antenatal care in Australia, including in Queensland. This screening is offered from ten weeks of pregnancy onwards. If a woman is found to be at high risk of an abnormality she is then offered a diagnostic test – diagnostic tests are more invasive than screening tests but they can give a definite answer as to whether or not a foetus does have a particular abnormality. If such a diagnosis is made, the woman can then be offered termination of the pregnancy, although not all hospitals carrying out the diagnostic tests will also offer abortion: the Catholic Mater Hospital in Brisbane is an example of such a hospital that does the tests but not the terminations.
The decision to terminate what is mostly a planned and wanted pregnancy, because of the unexpected and shocking diagnosis of an abnormality at quite an advanced stage of that pregnancy, is a very different situation for the woman concerned from that facing the woman making her decision much earlier, for whatever reason. In Queensland, most later abortions are done in public hospitals, as part of antenatal care, and in many cases they are performed by Maternal Foetal Medicine specialists in just one or two Queensland hospitals. These specialists work with teams of midwives, nurses, psychologists, social workers and others to assist the woman, her partner and family through the challenging experience of late abortion, which is generally carried out as a medical abortion, using the same drugs (including mifepristone, RU486) as are used in EMA. This means that the woman goes through a process very similar to the labour preceding the birth of a full-term healthy baby, but without the same result.
Ultrasound and other tests of foetal wellbeing were unknown to the writers of the Queensland Criminal Code in 1899; in fact, there was barely any antenatal care provided to pregnant women. So the idea that women might be give a diagnosis of an abnormality in their yet-to-be-born infant and that this should be grounds for legally terminating the pregnancy, safely, in hospital, did not enter the heads of the founding fathers convening in Parliament House. To justify performing late abortions for severe foetal abnormality, Queensland doctors have often had to use the claim that the woman was at risk of psychiatric sequelae, even when that woman was simply making an informed and reasonable decision for herself. So the development of major new medical techniques and drugs, as well as improvements in the practice of surgery and anaesthesia, and the introduction of antibiotics, all meant that by the beginning of the 21st-century Queensland abortion law was way out of step with actual abortion practice.
In 2009, bizarre events began to unfold in Cairns. A young couple were charged with importing the drugs mifepristone and misoprostol from relatives in the Ukraine, and using these to bring about an apparently successful abortion in the woman. Police were searching the couple’s home on an unrelated matter (for which no charges were ever laid) when they discovered the discarded packaging from the drugs. Quite why the police prosecutor decided to press charges under sections 225–226 of the Criminal Code has never been clear but press them he did, into the magistrate’s court and eventually the District Court of Queensland. This took eighteen months and was accompanied by a huge wave of unwanted publicity for the couple, across all media and the internet. There was huge support for the couple from pro-choice organisations in Cairns, Brisbane, the rest of Queensland and across the country. The culmination was a three-day trial in front of a jury, who returned a unanimous decision of ‘not guilty’ – to much cheering from the many supporters in the public gallery.
Following the verdict, the couple returned to private life but the campaign to change the archaic Queensland law continued and grew stronger. In 2015 Rob Pyne, a former Cairns Council member, was elected as the Labor member for Cairns in the new government led by Annastacia Palaszczuk and containing a number of women – Jackie Trad, Shannon Fentiman, Nikki Boyd and others – who were prominent supporters of abortion law reform. Rob Pyne pressed for legislation to be drafted and presented to the new parliament – he was very conscious of the law having so recently been used against two of his own constituents. He was unsuccessful in this – it was, apparently, felt that the government did not have the numbers to pass what would be controversial legislation. Rob Pyne resigned from the ALP but continued as an independent member, and in that capacity, in 2016, he introduced two private member’s bills. The first simply called for decriminalisation; the second went into some detail around matters such as the rights of conscientious objectors.
Parliament appointed a committee of inquiry who made in-depth studies of the legislation in other Australian jurisdictions, and sought the views of the Australian Medical Association, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, the Queensland Nurses’ Union and many other relevant bodies, as well as such authorities as Professor Heather Douglas, professor of criminal law at the University of Queensland. All Queenslanders were also publicly invited to express an opinion, and thousands did so. Two detailed reports were produced but no formal recommendations were made by the committee, whose members were evenly split along party lines. Pyne withdrew the two bills in February 2017 and they were never discussed or voted on by the parliament.
However, the Premier promised to refer the matter of abortion law to the Queensland Law Reform Commission, and in June of 2017 she did just that, requesting the Commission to review sections 224–226 of the Criminal Code with a view to reforming and decriminalising, and to prepare draft legislation. In the interim there was another Queensland election and the Palaszczuk government was returned, now with a significant majority.
The QLRC took a year to examine the matter; they also conducted their own independent inquiry and sought the views of many experts. While the members of the Commission worked away, the need – or not – for reform was widely debated in Queensland media; the newspapers are almost all Murdoch-owned, and while some views in favour of reform were published there were many more pages opposing the idea. BuzzFeed, The Guardian and other independent media provided more balanced views, more reflective of the belief of most Queenslanders that women should have access to safe, legal abortion when that is their choice.
Eventually, on 30 June 2018, the QLRC released their report and the draft legislation they proposed to the government. In essence the legislation:
– removes sections 224–226 from the Criminal Code, decriminalising abortion;
– allows abortion to 22 weeks when a woman and her doctor agree to the procedure; after 22 weeks the full and considered approval of a second doctor is required;
– allows for conscientious objectors to opt out of abortion provision but requires such doctors to make an effective and timely referral of a woman requesting abortion to a service that will discuss all options including abortion;
– makes provision for exclusion zones of 150 metres around services providing abortions, to protect ‘the safety and wellbeing’ of women and staff entering and leaving the premises; harassment by anti-choice protesters has long been a problem in Queensland, as elsewhere.
The bill was presented to parliament by Attorney-General Yvette D’Ath and had its first reading on 22 August 2018. Essentially, it was as the draft legislation was written. After that reading it was allowed to lie on the table for six weeks while a further parliamentary committee inquiry was conducted. A further 1200 submissions were received by this committee. The opportunities for Queenslanders to record their views on this topic have been almost boundless.
The second reading and the debate took place on 16 and 17 October and for people like myself, involved for many years in campaigning for abortion law change, and seated behind glass in the public gallery, the spectacle of parliamentarians, respectfully and intelligently discussing and debating the legislation, was theatrical in its intensity. Acts 1 and 2 took place on the first and second days, as alternately members of the government and the Liberal National Party opposition rose to speak: the former in favour of, and the latter against the bill. It seemed that the numbers were there to pass the legislation, but there was at that stage no certainty of this. The two members of Katter’s Australian Party were opposed to the bill, but the one Greens member and the single independent spoke in favour.
Act 3 began mid-afternoon of Wednesday 17 October, when Steve Minnikin, LNP member for Chatsworth, rose and strongly stated his intention to vote in favour of the bill. He spoke with great conviction and had a clearly thought-out position. Not long afterwards, Tim Nicholls, formerly LNP leader, also showed his hand: he would be voting for the bill.
There was a series of amendments, eight in all, brought by the LNP’s Mark McArdle; they included reducing the 22 week cutoff point to sixteen, the mandatory offer of counselling to women requesting abortion, and alterations to the plans around conscientious objection. As each was presented, the minister for Health, Steven Miles, rose in his seat and with Shakespearean gravitas provided cogent arguments against the amendment; all were voted down.
It had been expected that parliament would adjourn and return the following day for the bill’s third reading and the final vote. Instead, Minister Miles rose again, and moved that the reading be held immediately and the vote taken. This was agreed; the tension in the public gallery reached fevered levels, albeit in the total silence demanded by the ushers.
The parliamentarians stood: Minnikin, Nicholls and Jann Stuckey of the LNP, Michael Berkman of the Greens and independent Sandy Bolton crossed to join the ALP members of the government, and the bill was passed 50 votes to 41. Cheering broke out in the gallery as the Speaker, Curtis Pitt, struggled to maintain order, but the elation was there in the members as well, especially the Cabinet members and the many women who had supported these changes for so long.
Subsequently, some in the media questioned the propriety of our celebrating something as serious as abortion. I believe that our feelings were not only entirely justified, they were well placed. Queensland women now have world-class legislation around abortion. We can begin installing new services, and improving existing ones, so that they are woman-centred, accessible, safe and legal. We can watch abortion become part of mainstream women’s healthcare, part of discussion in regular society. We can see it come out of the shadows where it has been hidden for the past 119 years.