The findings of the Cairns abortion trial last week suggest that despite the over-zealous policing which seems to have led to the arrests in 2009, abortion remains protected by the law in Queensland.
On 14 October 2010, in the Cairns Magistrate’s Court, Tegan Leach and her partner Sergei Brennan were found not guilty of all charges relating to importation and use of the abortion drug RU486. GetUp! and other pro-choice groups are stepping up their lobbying for the decriminalisation of abortion.
Reform of the law is one important goal in the campaign for abortion access, but the criminal law is not the only obstacle to abortion in Australia. Leach and Brennan’s case illustrates the failings of national and state policy in this area, as much as it highlights problems with the law.
When Brennan was questioned by the police about why he organised for the importation of RU486 from the Ukraine, he explained that he did not think that the drug was illegal in Australia, but doctors had told his girlfriend that it was unavailable to her.
Ironically, the first Australian doctors to obtain permission to prescribe RU486 are based in Cairns, but the restrictions placed on Doctors de Costa and Carrette’s use of the drug are so strict that it is little wonder their work is not widely appreciated, even in their own community. It would appear that no doctor consulted by Leach (and there was more than one) informed her that she might be able to access a medical abortion in Cairns.
General practitioners’ understanding of abortion law, and abortion practice, is notoriously unreliable (pdf) and confused in general — and who can blame GPs for being confused about the status and use of RU486 in particular?
After the great handwringing pantomimes of the Commonwealth parliamentary debates of 2006, which resulted in the ostensible "release" of the drug from ministerial veto, its use remains minimal. No pharmaceutical company has applied to register the drug in Australia. This might be because it is seen as unprofitable, or controversial with consumers and clients; or again it might be due to political pressure.
An individual licence to prescribe the drug costs upward of $150,000 and, unsurprisingly, no Australian doctor has applied for one. To circumvent this, some doctors and clinics have applied to the Therapeutic Goods Administration for Authorised Prescriber Status, which may allow for the use of RU486 on a private patient with a "life threatening or an otherwise serious condition". This places extra bureaucratic burdens on doctors who must report on the circumstances of each use of the drug.
While in Britain, and elsewhere, medical abortions now account for over a third of all procedures, in Australia surgical abortion remains the norm, and it is in the national disparity in the cost of surgical procedures that the failure in abortion policy really starts to hit home.
It is feasible to presume that Leach and Brennan believed they could not afford a surgical abortion. In Cairns, an early surgical abortion will cost about $750, with perhaps $160 refunded by Medicare to the patient. In Sydney a woman might be lucky to access a bulk-billed procedure, or she might be out of pocket around $340 for an early abortion. (Later term procedures are much more expensive in all states.)
The disparity in cost reflects the different populations and licensing arrangements in each state. Abortion has been left mostly to the private health sector in Australia. This has allowed for significant entrepreneurialism, but it has also provided for grossly unequal service delivery across the nation, with abortion doctors at the mercy of various state based licensing regimes.
In Queensland, for example, licensing of abortion clinics as day surgeries is expensive, laborious and mandatory. In NSW licensing is also expensive, but it is optional. This is not an ideal situation, and unlicensed NSW clinics are prevented by Medicare from bulk-billing. Licensing also affects abortion practice, with Queensland licensing regulations (not the criminal law) arbitrarily preventing the performance of abortions after 20 weeks gestation.
There are strong arguments for the accreditation and licensing of abortion clinics (and all day surgeries) — and in April 2008 the state health ministers met and agreed on a national model for accreditation and Australian Health Standards, but neither has been implemented. As the sector is currently regulated, licensing expenses inevitably inflate the costs of procedures in non-metropolitan clinics, where patient demand is much less than in the cities, and clinics struggle to cover costs. This is the reality of healthcare delivered in a privatised setting.
South Australia is the only state to make significant provision for abortion in the public health system, and that state’s legislation includes a two-month residency clause, which means that women living nearby in Alice Springs, or Broken Hill, may not legally avail themselves of these publicly funded services.
The abortion policy landscape is messy, inconsistent and confusing, and it should come as no surprise that the current doctor shortage (pdf) evidenced in numbers of GPs is also found in the abortion sector.
In Queensland, only a handful of doctors perform abortions routinely in the private sector, which seems to also inflate costs for patients. The doctor shortage is the result of a combination of circumstances, including restrictions placed on Medicare provider numbers for both local and overseas practitioners, but in the case of abortion it is undoubtedly compounded by a general lack of interest in abortion among the medical profession.
In the United Kingdom, for example, where abortion has been legal for 43 years, the Royal College of Gynaecologists has warned that a crisis looms in abortion provision, because doctors simply don’t want to perform the procedures. Many young doctors find the procedure "distasteful" and, according to Marie Stopes, do not understand the "dire situation faced by women before abortion was legalised in the 1960s".
In Australia, the lack of professional interest must also be influenced by the disparate and confusing legal, policy and therefore financial settings, among the different states and territories.
One step that could be taken to help promote equitable abortion provision across the country, including the use of RU486, is the implementation by the federal government of a national sexual and reproductive health strategy.
In 2000 the Commonwealth Department of Health and Aged Care recommended the implementation of such a strategy like those used in Denmark, Sweden, Canada, England, Scotland and New Zealand. But in Australia no action has been taken on this front: the required political leadership around abortion and sexual health has been lacking.
Perhaps it is unsurprising that the Coalition government did not act on the advice of its own heath department in 2000. This was the government which, after all, famously sold women’s access to RU486 for the sale of Telstra in 1996, and whose only significant policy inroad in this area was to fund the Catholic-run Pregnancy Counselling Hotline in an attempt to lower the abortion rate. The Rudd/Gillard Government has since replaced this hotline with a more neutral service, and, following Obama’s lead, it also overturned restrictions on aid funding to overseas reproductive health services.
Nevertheless, the ALP has shown little more in the way of leadership on abortion. The best its policy platform can muster is a non-binding commitment to "the particular right of women to choice of fertility control", to which was added, very controversially in 1984, the phrase "including abortion".
The example of the Cairns abortion trial provides more than an indictment of the application of the criminal law in Queensland. It should also highlight the inequities of abortion provision in Australia for non-metropolitan women, the remaining restrictions on the medical use of RU486, and the lack of awareness about abortion options that prevails not only within the general community, but also, it would appear, among general practitioners.
A longstanding lack of political leadership around abortion has meant that the private health sector has been left to carry the majority load in providing women their reproductive rights. As a result, these rights are realised much more readily in the cities than in the towns, and they would appear to depend not only on the flavour of the local law, but also on the personal commitment of a decreasing pool of doctors, and ultimately, on the prevailing market conditions of the day.
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