Tuesday, October 12, 2010

A history of abortion law in Queensland

Cairns is the scene of the latest battle in the fight to update Queensland’s antiquated abortion laws. The District Court there will try Tegan Leach, 21, and her partner Sergie Brennan, 22, for procuring drugs for an abortion between November 2008 and January 2009. Leach has been charged with procuring her own miscarriage and Brennan with procuring drugs for an abortion. The Crown’s case is that S282 of the criminal code does not apply in this case and because there was no serious risks to the mental or physical health of Leach, the abortion was illegal. The case jeopardises the availability of the 14,000 abortions carried out each year in Queensland.

In Queensland abortion is a crime under the Queensland Act, although generally regarded as lawful if performed to prevent serious danger to the woman’s physical or mental health. Queensland has draconian legislation in place dating from 1899 that criminalised abortion. Abortion is defined as unlawful in the Queensland Criminal Code (1899) under Sections 224, 225 & 226 (sited between “incest” and “indecent acts” in the code). Women, doctors and their helpers can be criminally prosecuted for accessing abortion. Under section 224 a person who intends to “procure the miscarriage of a woman” is liable for 14 years imprisonment. Under S225 a woman who seeks her own miscarriage is liable for 7 years while S226 condemns anyone else who helps out to 3 years. The only defence is S282 which absolves medical operations on “a person or an unborn child to preserve the mother’s life”.

In the Cairns case, police alleged the couple arranged for a relative to bring a supply of the drug misoprostol along with a variation of mifepristone, used in medical abortions, to Australia from the Ukraine. They also alleged the woman used the drug successfully to terminate her pregnancy at 60 days, after the couple decided they were too young to parent. Leach has been charged under S225 and Brennan under S226. She faces a maximum of seven years while he faces three years in prison.

While this is the first time in over 50 years a woman has been charged in Queensland for choosing an abortion, the case is the latest in a long line of depressing state sanctions against pro-choicers. In the Joh era of the early 1970s, the Minister for Justice announced that it was illegal to terminate the pregnancy of a woman with rubella, and that vasectomy was illegal. Although a few private doctors were prepared to do a limited number of abortions and menstrual extractions, abortions in public hospitals were performed strictly on medical grounds. Most women had to travel interstate to obtain an abortion.

The Greenslopes Fertility Control Clinic opened in 1976 and was a thorn in the side of the hypocritically conservative (but corrupt) Joh administration for the next ten years. A court ruled search warrants used in a police raid on the clinic in 1985 were invalid so the Government appealed for whistleblowers to denounce the clinic. A 21-year-old mother came forward and the clinic’s Drs Bayliss and Cullen were charged with procuring an illegal abortion contrary to Section 224 of the Criminal Code and inflicting grievous bodily harm.

Judge McGuire heard the case and based his ruling on the English case R v Bourne (1939) and a Victorian ruling by Justice Menhennit in R v Davidson (1969). McGuire said R v Davidson represented the law in Queensland with respect to Sections 224 and 282. S282 provided the accepted defence to a charge of unlawful abortion under s224. It meant a prosecution under s224 would fail unless the Crown could prove the abortion was not performed “for the preservation of the mother’s life” and was not “reasonable having regard to the patient’s state at the time and to all the circumstances of the case”.

Since the 1980s, lobby groups have fought to change the abortion law. In 1995 the Goss Labor Government introduced “revised” criminal legislation that retained abortion as a criminal offence despite the Premier’s verbal support in Parliament for women’s access to abortion. A year later, his Government was defeated and the new anti-choice Health Minister in the Borbidge Government (Mike Horan) cancelled funding for women’s choice support groups. They were re-funded under the Beattie administration in 1999. A Taskforce on Women and the Criminal Code recommended repeal of the abortion laws in 2000 citing community support. However the Beattie government would not implement this recommendation claiming abortion was a matter for the consciences of members of parliament and not public policy.

Anna Bligh hid behind the same excuse when refusing to change the law last year and so abortion remains illegal in the state. Where abortions are illegal, they are also generally unsafe. In an article for the Deakin Law Review, Rebecca Dean estimates 68,000 women die annually and 5.3 million suffer temporary or permanent disability as a result of 20 million unsafe abortions across the world. “Women will continue to have unplanned pregnancies they seek to abort because, among other factors, contraception is not one hundred percent effective, and rape and domestic violence are prevalent around the world,” said Dean.


Legal Eagle said...

Very depressing. Great post, though.

Derek Barry said...

Thanks, LE.

A good outcome in the court case but I'm wondering if there is grounds for this Qld legislation to be challenged in a federal court?

Legal Eagle said...

Hmm, I can't really think of a way that it can be challenged by the Federal Government because health and crime are both areas of State legislative power, and it would be hard for the Federal Government to overrule such legislation. That being said, I'm not an expert in such things; perhaps there is some clever Constitutional lawyer who can think of a way to challenge it?

An article in the SMH says that it thinks that it's unlikely that legislation will be reformed by either NSW or Qld Parliaments: http://www.smh.com.au/nsw/reform-unlikely-after-abortion-verdict-20101014-16lwm.html

It just doesn't make sense though, from a pragmatic point of view. The law doesn't work and no one wants to apply it - police generally don't want to charge people under it, the DPP don't usually want to prosecute people under it, and clearly, after this case, we can see that juries don't want to find people guilty under it. Therefore scrap the provision, even if you don't replace it with something else! It's a dead letter.


I’m anti-abortion. Its easy for me to be anti-abortion since I’m a bloke.
I also happen to be pro-choice. Its easy for me to be pro-choice ‘cos unlike Madam Bligh, that disreputable Mr. Bean lookalike of an AG of hers, and the qld police farce, I don’t go about stuffing with people’s lives.

Absolutely everything you’ve said is laudable and supportive of Tegan and Sergei but completely misses the point.

For those of you fortunate enough to live elsewhere let me explain how queensland operates.
Firstly, with regard to the qld criminal code and its implications to the treatment of Tegan and Sergei –
That code was compiled by Samuel Griffith who relied upon (plagiarised) various sources but mainly the Italian criminal code.
While reasonably progressive for its day the document can now be argued as being past its use-by-date with respect to matters these days usually considered to be victimless crimes.
That situation is compounded by the progression toward rolling the traditional Common Law over to some pretense of Civil Law but without implementing any of the customary features of the Civil code and practice.
In other words an inquisitorial system operated in an adversarial environment – a system where only those somehow backed by money, power, or influence win.

Meanwhile queensland, lacking a house of review, finds it inordinately difficult to curb the vexatious exercise of arbitrary power by supposedly ‘authorised agents’, and those within the inner circle, of monocameral government.

Without writing a treatise the possible future scenarios for Tegan and Sergei are much the same as continue for thousands of other Queenslanders vainly trusting upon an utterly compromised governance.

At this stage they appear to have been granted a ‘win’ by an insightful jury.
In fact their punishment will be years of debt and looming over their heads, the ongoing possibility that at any time an overzealous AG could declaim a retrial.

Perhaps it is time queensland took a leaf out of the logbook of the Bounty.