A pre-teen mother has been deemed by the Queensland Supreme court as able to consent to an abortion, after a hospital requested permission to abort her child.
The case was brought by the unnamed hospital under a Queensland law prohibiting a parent from consenting to an abortion on behalf an underage child. This triggered parens patriae jurisdiction, which allows the court to act as a ‘parent of the country’ and assess the child’s ability to consent. The goal of parens patriae legislation is to protect children and those without full mental capacity, ending in a decision which is supposedly in the “best interests” of the child or child-like person.
Staff from the hospital sought orders from the court after they were concerned that the young mother, known by the pseudonym, ‘E’, was not mature enough to consent to the abortion. E was 9 weeks pregnant at the time, and both she and her 13-year-old boyfriend had requested an abortion.
The court was told that E had already tried to commit an abortion using the abortion pill, as she was apparently very fearful of her father discovering the pregnancy. Her plan was to have the baby aborted before any signs of her pregnancy showed.
In her judgement, Justice Catherine Muir wrote that “Historically, children have had no capacity at all to consent or refuse treatment. This was always within their parents’ remit. Now the law recognises that there are certain developmental stages relevant to a young person’s ability to consent to medical care.”
Despite testimonies from a gynaecologist, an obstetrician and a psychologist questioning E’s ability to comprehend what was going to happen to her, the judge deemed that E could, in fact, understand the abortion procedure and its inherent risks. Justice Muir also took the opportunity to repeat the progressive talking point regarding the procedure’s safety, noting that “… the proceduralist assesses those risks as not being significant in this case.”
Justice Muir’s main concern seemed to be that E understand the physical process involved in having her baby terminated. She wrote: “Critically, E was able to explain to me what she understood she was doing by choosing to terminate the baby, and also that there were risks with this procedure, including bleeding, risks for future pregnancy, cramping and infection.”
A closer look at this section of the judgement shows that the medical professions who assessed E twice concluded that her knowledge of an abortion procedure was “rudimentary”, a view they believed to have been “consistent with that of a 12-year-old.” So while E may have understood in basic terms that her baby was going to be killed, it isn’t at all clear that she understood that her child had a heartbeat and brainwaves, that it was almost old enough to suck its own thumb, or that it was fully human.
The girl’s mother was very supportive of the abortion, and requested that her daughter be fitted with a contraceptive implant afterwards. From this we can glean that the young girl has no intention of avoiding, nor will she be encouraged to avoid sexual activity at the conclusion of this sad affair. It also sheds some light on the contrast between the girl’s attitude towards babies and that which is more commonly held by girls of her age that babies are to be protected and cherished. Almost a child herself, it is surprising and sad that E did not empathise with the plight of her baby, despite the difficulties associated with motherhood at such a young age.
In this scenario, we see that those who should be relied on to support a young mother through her crisis pregnancy convinced her to take the route that was simplest for them. Knowing that they would have a significant role to play in helping her through pregnancy or care for a newborn, they steered her towards abortion, out of either a misplaced sense of compassion or out of concern for their own time and energy.
While the medical professionals did raise some concerns in court, they were not against the abortion in principle. Rather, it appears that they desired that the responsibility for making the decision be lifted from their shoulders. This is an example of the danger of the parens patriae doctrine being used by ideologically-driven courts. Just as courts may confuse an abusive household with an impoverished one, so they may use an ostensibly compassionate law to further a pro-abortion agenda.
A testimony given by a midwife seems to have been the only voice of reason in the case. She said “that the girl required assistance to understand some of the questions put to her about the termination,” and thought “she did not demonstrate sufficient insight into the operation’s risks and benefits.” It’s difficult to understand how the opinion of this experienced medical professional was ignored by a judge who gave only a cursory evaluation of E in the courtroom.
It should be noted that Justice Muir had little care for the psychological impact the abortion will have on the young girl. Although it may be years before she comes to terms with her decision, E, like many other mothers, may find that this is a decision she will regret for the rest of her life.
One of the most questionable elements of the case is the rationale for keeping the decision from the girl’s father. Court records state that he wasn’t notified due to an apparent threat of violence. If this claim is true, then we can only wonder why the girl could not be protected from this threat and supported to continue her pregnancy. Surely enough legal protections exist to guarantee the girl’s safety so that she didn’t feel compelled to inflict the ultimate form of violence on her unborn child: killing it in the womb.
This sad case is not the first time that Queensland courts have allowed an abortion to be performed on a 12-year-old. A similar case took place in 2016, when Justice McMeekin gave permission for a young mother with the pseudonym ‘Q’ to have her baby terminated.
Writing about the latter case, the progressive Human Rights Law Centre (HRLC) explained the Court’s recourse to parens patriae jurisdiction, again citing the “best interest of the child.” The HRLC statement then goes on to give the brutally honest caveat: “This does not include the interests of an unborn child.”
by Kathy Clubb