Peter Dutton’s lawyers argued a pregnant refugee on Nauru with “extreme” genital mutilation who wanted an abortion didn’t need to be brought to Australia for the procedure.
The lawyers said that because the woman's vagina had been unstitched, she should instead have the operation in Taiwan, without specialist care or the aid of an interpreter. Surgical abortion involves the removal of a pregnancy through the vagina.
“The bottom line is that having examined her, the relevant medical officer formed the view that she is already de-infibulated and the vaginal opening is sufficient to perform the operation,” the government’s lawyer told an urgent Federal Court hearing in June, court documents reveal.
“The fact that the government would quite literally send lawyers into court to argue over the degree of a woman's 'vaginal opening' in order to prevent her accessing the best health care available to her is abhorrent,” Asylum Seeker Resource Centre detention advocacy manager Natasha Blucher told BuzzFeed News.
The Somali refugee, who was about 12 weeks pregnant at the time of the hearing, had been detained on Nauru since 2013 and wanted an abortion because the pregnancy would be harmful to her mental health.
She has type three female genital mutilation (FGM), as classified by the World Health Organisation, and much of the debate in the courtroom was about infibulation, “the practice of excising the clitoris and labia and stitching together the edges of the vulva to prevent sexual intercourse”.
The lawyer representing Dutton and the government acknowledged the woman had “the more extreme form of FGM”, but argued she had been “de-infibulated” (her labia had been unstitched) before giving birth to multiple children previously. So, they argued, “the vaginal outlet [was] adequate for the performing of the operation without any difficulty”.
She should be flown to Taiwan instead of Australia, they said, as the unstitching meant the government didn’t need to offer her specialist FGM care to fulfil their duty of care.
The government pointed to a “brief” medical note from an obstetrician who consulted the woman on Nauru, which said she had “FGM type 3 with signs of de-infibulation”. In a later report to Australian Border Force, a senior doctor from contractor International Health and Medical Services — who had not examined her — wrote that the woman had “de-infibulation”.
The court transcript suggests that the woman’s own evidence was that she had been “surgically partially closed again” following previous births.
Justice Alan Robertson ruled against the government, finding that the woman’s “specific surgical needs” and mental health needs meant she needed to attend a clinic with experience in treating women with FGM and that the Taiwan hospital did not have “suitable expertise and facilities”.
Taiwanese physician Dr Sheng Chiang gave evidence there were no doctors in Taiwan who had ever provided surgical abortions for patients with FGM. The government agreed there was no evidence of relevant experts in Taiwan.
The government also agreed the woman’s “treatment” was urgent. They also admitted the hospital in Taiwan had only given a “qualified” agreement to accept the woman pending examination on arrival and the approval from the Taiwanese Ministry of Health and Welfare.
“It would be an extraordinary thing if the time, trouble, expense, not to mention the risks involved with delay and the risks involved on the psychological aspects of the claim — if the applicant was sent from Nauru to Taiwan only to be told that she cannot be treated there,” the woman’s lawyer told the court.
Obstetrics and gynaecology professor Caroline de Costa, who testified in the case, told BuzzFeed News it would be “highly desirable” and was best practice by Australian standards for a woman who had undergone FGM — even those who had been de-infibulated — to be assessed by a gynaecologist with expertise and experience in dealing with similar patients before operating.
“Where abortion has been requested by women refugees or asylum seekers they should receive the same standard of care and respect available to women with similar issues in Australia,” de Costa said.
De Costa said she advised the court the woman should go to Sydney or Melbourne, where she was eventually flown, for treatment where there were “hospitals with teams very familiar with the management of the condition during pregnancy and in the best practice of abortion procedures in these cases” as well as social workers, interpreters, and health workers from the woman’s own ethnic group.
“This is also obviously in the emotional and psychological interests of the woman concerned,” de Costa said.
“In the various cases I have provided medical opinion for, of asylum seeker and refugee women on Nauru, the pregnancies have been quite advanced by the time the requests for termination became known to the Australian lawyers willing to represent them. So the matters were urgent.
“None of this is available on Nauru where abortion is in fact illegal. The same is also true of Papua New Guinea where the Australian government has transferred other women in similar situations.”
The woman’s lawyer referred to documents in which IHMS requested transferring the woman to “Australia or third country with comparable medical standards to Australia”.
“Well, we know one place which has comparable medical standards to Australia; that’s Australia,” he told the court.
But the government’s lawyers admitted they hadn’t even made inquiries with the recommended hospitals in Sydney or Melbourne and said: “Our client's preference is not to bring the applicant to Australia”.
Professor Louise Newman, director of the Centre for Women’s Mental Health at the Royal Women’s Hospital and psychiatry professor at the University of Melbourne, also gave evidence that only a specific clinic for women who have experienced FGM could meet the woman’s mental health needs.
Justice Robertson said: “I find that infibulation carries significant emotional and psychological implications and those aspects of care need to be expertly managed. I find that there would be substantial risks in performing the termination in other environments [than Sydney or Melbourne] or by practitioners without the relevant experience and immediate physical risks including haemorrhage, infection, serious tears of the relevant organs and major psychological trauma and post-traumatic stress disorder.”
Documents also revealed the woman didn't want to have the abortion in Taiwan due to a previous negative medical experience there and had refused to sign the consent form. There was also evidence that she would not have access to an interpreter.
In August last year, a whistleblower on Nauru accused ABF officials of stopping pregnant refugees from travelling to Australia to have abortions, in a powerful letter sent to politicians.
In a leaked copy of the letter obtained by BuzzFeed News, the "extremely concerned" detention centre worker claimed pregnant asylum seekers and refugees who wanted abortions were not being transferred to the Australian mainland for treatment.
Some of these women had serious medical problems, and later sought injunctions to prevent their removal from Australia.
The procedure for approving abortions has been complicated by the Nauruan government's Overseas Medical Referral process at the Nauru hospital. The staff member wrote in their letter that they saw the process as a sham, and that "it is guaranteed that approval will not be given".
It has effectively created a defacto ban on terminations for refugees in Australia's care, the worker said in the letter.
"The OMR committee refused all four requests for terminations. This was not completely unexpected. Nauru is a Christian country and abortion is illegal. OMR committee members would be breaking Nauruan law if they approved them.
"I am asking you to use whichever avenues are available to you to put pressure on the government to change this policy, and help these women."
In May 2016 the Federal Court ruled that it would not be safe or legal for a pregnant African refugee — who was raped on Nauru while unconscious and suffering a seizure — to have an abortion on Nauru.
She was flown to Papua New Guinea, where abortion is also illegal and only lawful if the termination would save the mother's life, for the procedure.
Later in 2016 the Nauruan government withdrew a bill that would have legalised abortion for refugee and asylum seeker women.
The nation's border protection minister David Adeang introduced the bill, which was opposed by both government and opposition MPs.
BuzzFeed News understands the woman was brought to Australia for medical treatment but is not aware of whether she ultimately terminated the pregnancy.
A spokesperson for the Department of Home Affairs told BuzzFeed News the department "does not comment on individual cases".
"Decisions about medical transfers are made on a case by case basis according to clinical need, in consultation with the contracted health services provider and following advice from medical officers of the Commonwealth," the spokesperson said.
The woman’s lawyers, the National Justice Project, declined to comment.