Termination of Pregnancy Bill 2020

I rise today to speak on this bill and to indicate that I will not be supporting it in its current form.

As a woman and a mother, there are several elements of the Bill that I find very concerning, first and foremost the removal on gestational upper term limits on the termination of a pregnancy.

Before outlining my opposition to this bill in its current form I would like to state for the record that I am not against the move of the abortion legislation away from the Criminal Law Consolidation Act and into it’s own stand alone health act. It is my understanding however that, in the last 50 years, no woman has ever been prosecuted for accessing an abortion.

What I am against are the changes to allow lawful abortion up until birth and I also have concern with some of the early medical abortion legislation changes, particularly around rural and regional women and duty of care.

Current legislation allows for termination up until proof of foetus or viability of a foetus which is defined in the act as 28 weeks. This can be done on grounds of physical or mental health of the mother or if the baby has such abnormalities that deemed it to be severely handicapped.

Over 28 weeks of gestation, abortion is illegal except in circumstances when it is done in good faith to preserve the life of the mother. This is because society recognises that the baby is viable, feels pain and is capable of living externally independent of its mother.

Over a number of decades we have reached the point where, due to advances in medical technology, the “threshold of viability” has shifted from 28 weeks to 22 weeks and 6 days. In fact according to the Department of Health the chance of survival in a baby born between 23 and 24 weeks of age who receives intensive care is 50%.

The new legislation correctly identifies the fact that the viability of a foetus occurs not at 28 weeks but at 22 weeks and 6 days and I congratulate the Attorney General in the other place for acknowledging and recognising this important factor.

The bill however also removes subsection 7 which states it is illegal to abort a child after proof of foetus or viability except to save the life of the mother. It will no longer be an offense to have an abortion at any stage up until birth for reasons that a medical practitioner deems as ‘medically appropriate’. 

This broad term poses significant risks that Medical Practitioners may be pressured to perform late term abortions (that is feticide and then expulsion) due to psychosocial reasons. The reality is that, although the percentage of terminations in South Australia post 20 weeks is small, in 2017 49.5% of these were for psychosocial or mental health reasons.

When speaking on the bill on the radio the Attorney General spoke about possible situations when late termination is required. I would like to bring this to the attention of the chamber as I feel there needs to be some clarification on the definition of pregnancy termination and I feel the bill does not address this appropriately.

The Bill defines termination as an “intentional termination of a pregnancy in any way, including, for example, by –

1. Administering or prescribing a drug or other substance; or
2. Using a medical instrument or other thing

What this bill does NOT define or rather fails to recognise is that there are two clinically and ethically distinct ways of terminating or ending a pregnancy:

The first method is abortion where the mother and baby are separated with the intention of producing a dead baby

The second method is early delivery where the mother and baby are separated with the intention of producing a live baby

Both of these methods are terminating a pregnancy but one produces a very different outcome to the other.

The Attorney General said when asked about whether late term abortion can occur if necessary for the physical or mental health of the mother:

“It is possible…. The medical practitioners are the ones who identify whether there’s risk to the health of the mother….. there are two exceptions where occasionally this is called upon – one is where the life of the mother is at risk and that will be maintained in the legislation and if the life of another foetus is at risk and I think what people don’t always appreciate its not women who go along to say suddenly I realise I don’t want a child and I’m seven months pregnant, its actually a circumstance for example they might have multiple twins and the medical assessment is that one’s at risk and therefore to save one, a termination needs to be at least considered.”

I do know that this situation does occur from time to time and, as a mother who has carried twins previously, I am aware of the number of risks that twin pregnancies can have such as twin to twin transfusion syndrome. However I would argue that in this situation there are several advanced medical procedures that can be effected to assist one or both foetuses or an induction of labour would be the likely resolution where both babies can be delivered via caesarean and cared for in the appropriate medical setting.

So I think we need to be very careful in the use of our language when debating this bill because the early induction of labour or pre term delivery via caesarean to be able to care for these children in an controlled safe outside environment is VERY different to the termination of the life of a child by means of chemicals or lethal injection before dilatation and evacuation of that child.

However Mr President I do understand that there may be very tragic circumstances that can occur in a pregnancy. Circumstances in which an abnormality may be picked up particularly between weeks 20 and 26 of pregnancy with twins that may mean that it is necessary to terminate the life of one baby in order to save the life of another. The current legislation already allow for this up to 28 weeks. However as the bill identifies that foetal viability begins at 22 weeks and 6 days I think there needs to be a provision for this. My understanding is that this is not common and there are usually advanced medical procedures that can be attempted in-utero. But I do think there needs to be a specific provision for this for those cases that are perhaps at 23 weeks of pregnancy, where a medical condition provides significant risk for one or both of those babies and which cannot be helped in-utero. That is why I will be moving an amendment to Section 6 of the Pregnancy Termination Bill to allow for termination of a pregnancy for a person who is more than 22 weeks and 6 days pregnant if two medical practitioners are consulted and consider that in all the circumstances the termination is necessary to preserve the life of the mother or to save another foetus. When abortions are performed to save a woman’s life or the life of another foetus there needs to be a distinct intention that one life must be saved to prevent the loss of both lives.

I also acknowledge and understand that there are some terrible, awful situations where congenital or other anomalies may be picked up at a later time during gestation – say in the second trimester. Anomalies or abnormalities which are not compatible with life and in these such situations parents may need to make a heartbreaking decision to terminate the pregnancy. I understand that these are tragic circumstances and this is also acknowledged in my amendment to Section 6 which allows for a termination after 22 weeks and 6 days if there is a case, a significant risk, of serious foetal anomalies associated with the pregnancy that are incompatible with survival after birth.

Mr President, whilst in some extenuating medical circumstances, late term abortions are necessary, they should never become routine. Many members in this chamber claim that they won’t become routine. I reply: Lets ensure they don’t by legislating for those situations that require it but maintaining the protections for those situations that don’t. Because Mr President, 22 weeks and 6 days is 5 months through a pregnancy and I would argue that is plenty of time for a woman to make a decision as to whether they want to continue on with a pregnancy. And for those circumstances where that does not occur before 22 weeks and 6 days then there are other options for these women such as adoption.

Mr President, there are many published risks to a woman associated with late term abortions including uterine perforation, Asherman’s syndrome (where there is scarring inside the uterus and cervix) leading to reduced future fertility, retention of the placenta or foetus known as incomplete abortion, excessive bleeding or haemorrhage leading to the requirement for a blood transfusion, infection or sepsis and general anaesthetic and operative complications not to mention the studies published on the PTSD associated with late term abortion in women.

Two large scale quantitative research papers in S. V. Gaufberg’s paper “Abortion complications,”and L. A. Bartlett, C. J. Berg, H. B. Shulman et al’s paper “Risk factors for legal induced abortion-related mortality in the United States,” have revealed that 2nd trimester (13– 24 weeks) and 3rd trimester (25–36 weeks) abortions pose more serious risks to women’s physical health compared to 1st trimester abortions. The abortion complication rate is 3%–6% at 12-13 weeks gestation and increases to 50% or higher as abortions are performed in the 2nd trimester.

Another significant quantitative study was done on Late Term Elective Abortion and Susceptibility to Posttraumatic Stress Symptoms by Priscilla K. Coleman, Catherine T. Coyle, and Vincent M. Rue. The purpose of this study was to test the hypothesis that women who undergo 2nd and 3rd trimester abortions would be more traumatized than their peers who experience 1st trimester abortions as evidenced by significantly higher rates of PTSD symptoms. After instituting statistical controls for race, marital status, formal education, number of abortions, number of years since the abortion, mental health counselling and hospitalizations for emotional problems before the abortion, meaningfulness of the respondent’s religion, and a childhood or adult history of physical or sexual abuse, all the group differences were in the hypothesized direction but only a few were statistically significant. Specifically, the difference in Intrusion subscale scores was statistically significant. Intrusion involves an increased tendency to have persistent and unwanted re-experiencing of the traumatic event in the form of recurrent and distressing memories, flashbacks, and hyper-reactivity to any stimuli associated with trauma. In addition, when individual PTSD items were examined, the late-term group was found to report more disturbing dreams, more frequent reliving of the abortion, and more trouble falling asleep. The study also found that 52% of those women who had early abortions had PTSD, while 67% of those who had late-term abortions (defined as second and third trimester abortions) had the disorder. Thus, those women having late-term abortions were more likely to experience severe anxiety. 

And there is also the psychological impact on the healthcare team in the provision of a late term abortion involving feticide. A recent article about Feticide and late termination of pregnancy in the magazine of The Royal Australian and New Zealand College of Obstetricians and Gynaecologists stated and I quote:

“One infrequently discussed aspect of late abortion is feticide, where specific interventions occur to ensure the death of the foetus prior to expulsion. Unintended live birth after abortion can be emotionally difficult for many (although not all) women and poses difficulties for health professionals, both in terms of process and emotion.

 “In general, feticide is performed by ultrasound specialists who have skills in accessing the fetal circulation to install intracardiac potassium chloride or intrafunic lignocaine, resulting in cessation of fetal cardiac activity prior to the commencement of the termination procedure.“

It goes on to say:

“Little consideration has been provided to the psychological impact on the healthcare team in the provision of a feticide service.”

Mr President, the Bill does have a clause relating to registered health practitioners being able to conscientiously object to performing or assisting in performing a termination, as does the existing legislation. However I have concerns about regional or remote medical practitioners who are already under pressure to perform additional procedures given their locations. If a woman presents to a rural medical practitioner for a late termination procedure who has a conscientious objection to abortion and perhaps is the sole doctor in that region and she says to that doctor “I have no mode of transport, I cannot afford to travel, you are my only hope.” What is that medical practitioner supposed to do? Is he not bound by a duty of care? These are questions I would like answered in this bill. In the AMA’s statement of conscientious objection they state under point 2.4 and I quote:

“The impact of a delay in treatment, and whether it might constitute a significant impediment, should be considered by a doctor if they conscientiously object, and is determined by the clinical context, and the urgency of the specific treatment or procedure. For example, termination of pregnancy services are time critical whereas other services require less urgency (such as IVF services).” End of quote.

Mr President, this highlights the significant pressure on rural and remote GP’s as it seems to me to suggest that, if there is not a convenient timely alternative option for the patient, the GP should reconsider his conscientious objection.

Mr President, my other concern with the bill is its ability to allow a “registered health practitioner” who is not a doctor to prescribe the drugs Mifepristone and Misoprostol (or MS- 2 step as it is often referred to as) for at-home-abortions without the clear need for a medical practitioners input. Part 2, section 5, subsection 1b states that a termination may be performed on a person if in the case of a termination performed by any other registered health practitioner acting in the ordinary course of the practitioner’s profession the determination is performed by administering a prescription drug, the termination is performed on a person who is not more than 63 days pregnant and the registered health practitioner is authorised to prescribed the drug under section 18 of the Controlled Substances Act 1984.

Mr President when you looked at who is able to prescribe a prescription drug within the Controlled Substances Act 1984 it states that this person may be a medical practitioner but can also be a nurse practitioner or a pharmacist. I have concerns with a nurse practitioner or a pharmacist being able to prescribe these drugs without the requirement for a medical practitioner to deem it safe to do so.

Mr President, the Hon Tammy Franks in her first reading speech of her statues amendment (Abortion Law Reform Bill), spoke about the lack of access to medical abortions for rural women and the barriers to their health care.

I whole heartedly agree with the Honourable Member – when it comes to regional healthcare it is well known that those of us in the country face challenges with distance when accessing health care. However it would be irresponsible for members in this place to support convenience over best medical practice for rural women.

Under the proposed legislation there are no safe guards to ensure that a medical practitioner has deemed the pregnancy termination to be safe to do so. This is paramount. According to the TGA there are a large number of situations or contraindications where the MS-2 Step should NOT be prescribed which requires obtaining a thorough medical history.  These situations include if there is a suspected or confirmed ectopic pregnancy, if there is a Intrauterine Device present, if there is uncertainty in gestational age, in the situation where the mother may be suffering from chronic adrenal failure, if the mother is on long term corticosteroid therapy, and if the mother has a coagulopathy or haemorrhagic disorder or is taking anti-coagulants for another condition to name a few!

Therefore, Mr President, for the health and wellbeing of these women, THESE RURAL WOMEN, it is critical that a medical practitioner performs a thorough examination of these women and performs or assesses an ultrasound to ensure that there are no complicating factors before the prescribing and administration of both Mifepristone and Misoprostol. So Mr President this is why I will be supporting an amendment to the legislation to ensure that any termination by a registered health practitioner is done so only after a medical practitioner has determined that the termination is safe to do so because this really is about the duty of care to these women and ensuring that medical procedures are conducted in a safe manner.

Importantly the TGA guidelines for the MS- 2 Step state:

‘MS-2 Step should only be prescribed by doctors with the appropriate qualifications and certified training. Ectopic pregnancy should be excluded, an intra-uterine device must be removed, consent obtained and the patient must have the ability to access 24 hour emergency care if and when required for incomplete abortion or bleeding.’

In addition, the current recommendation from SA Health on termination of pregnancy in the first trimester is that women should NOT undergo a medical abortion if they live more than one hour away from emergency services such as an ambulance service or a hospital. I believe this is sensible and should be stated in the legislation to avoid any doubt.

Many rural and remote communities have limited access to emergency services.  Being a woman and mother living in the country I am acutely aware that, whilst we must look to provide better services in the regions, we must also ensure that these services are safe. We, as members of parliament, have a duty of care to ensure the safety and wellbeing of our citizens and communities.

SA Health also currently advise that a woman needs to have adequate support for the process, including a support person to drive her home and / or return to the hospital (via car or ambulance) in the case of profuse bleeding necessitating urgent treatment.

They also state that the woman must be advised that, if she has heavy bleeding she must present to the Emergency Department for urgent assessment and that urgent dilatation and curettage may be required. Whilst I understand that these complications are not common they can and DO occur and again it is why it is necessary that we legislate that a woman should not undergo a home abortion if they are more than 50km away from a hospital or ambulance service.

Mr President, during commentary about this legislation before us, much credit was given to the then Attorney General the late Hon Robin Rhodes Millhouse QC on his so called progressive reform of abortion laws in 1969 in South Australia.

Mr President, whilst at the time the reform was popular, I would like to quote the late Mr Millhouse from an article written in the Advertiser from 2014 entitled “Robin Millhouse’s regret”.

After 45 years of carrying a growing burden the Hon Mr Millhouse QC confided that and I quote:

“I deeply regret that the medical profession – and the lawyers – interpreted the law too widely. It has become abortion on demand. I did not intend it to be that. I have taken the rap for it. It is something I regret. “

This interview is pertinent Mr President as it is a direct admission of how the intent of legislation is often not the reality. It is our job as members of parliament, but particularly, as members of the legislative council, to scrutinise the legislation to ensure that the practical outcomes of a bill are what is expected and intended.

Mr President, most of us know someone that has been confronted with the decision of whether to terminate a pregnancy. It is an incredibly difficult decision.

But the decision facing the Parliament is not about access to early terminations which are currently provided in a safe, medical environment and should continue to be done as such. It is a decision about the ethical and moral implications of late term abortion not associated with specific extenuating medical circumstances.

Whilst I agree that the abortion laws need reform to reflect the advances in medicine, we must, as leaders, always remain focused on protecting those who don’t have a voice.