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.

Queensland's archaic abortion laws

Abortion law is one of the many reasons why state-based law in Australia is idiotic and why the states should be either abolished or have their many powers removed to the Commonwealth. Available legally elsewhere, abortion is technically illegal in Queensland but common in practice. To obtain an abortion here, a woman has to find a doctor who is prepared to say the abortion is needed to preserve her from serious physical or mental harm. But an abortion trial in Cairns in North Queensland has thrown the ambiguous system into crisis. Public hospitals in Brisbane, Rockhampton and Mackay began refusing to perform abortion procedures because of concerns relating to the case in which a young couple was charged over a medical abortion forcing women to spend large amounts of money to travel to Sydney and other interstate capitals to procure a legal abortion.

In Queensland abortion remains a criminal offence under provisions of the Queensland Act that date back to English Victorian times. Women can be criminally prosecuted for accessing abortion under Sections 224, 225 and 226 of the act. However Section 282 offers a defence for patient benefit or the preservation of the mother’s life. In 1985 the conservative Bjelke-Petersen government actively sought out a case to shut down the Greenslopes Fertility Control Clinic. But the court ruled for the Clinic saying prosecutions were too difficult to achieve under Section 224. The judge also said the status of Queensland’s abortion laws was uncertain. Since that time, the law on abortion has not been tested as basically the prosecuting authorities have “turned a blind eye”.

That changed in April this year when a Cairns woman was charged with organising her own abortion. 19 year old Tegan Leach faces a possible seven years in jail under section 225 after allegedly bringing in an illegal overseas drug to carry out the procedure. Her 21 year old partner Sergie Brennan has also been charged under Section 226 with the supply of the drugs and with procuring an abortion and could face three years. The couple's defence lawyer argued that because no chemical analysis was done there was no evidence to prove that the drugs Leach admitted to taking were in fact poisonous or noxious. On Thursday evidence concluded but Magistrate Sandra Pearson adjourned the hearing, saying she would deliver her verdict at a date to be set.

On the same day, the State Government rushed a bill into parliament to attempt to clarify the existing law which refers only to surgical procedures. The bill made minor retrospective changes to Section 282 of the Criminal Code which protects doctors who perform drug-induced abortions from prosecution. It was passed with bi-partisan support after an opposition briefing by Attorney-General Cameron Dick. There was no conscience vote as it did not touch on the moral aspects of abortion. As pro-life LNP Gympie MP David Gibson said in parliament, the bill does not decriminalise abortion. Its objective was to ensure it was legal for a person to “provide medical or surgical treatment for a patient’s benefit or provide surgical or medical treatment affecting an unborn child for the preservation of a mother’s life or for the benefit of the unborn child.”

Gladstone independent MP Liz Cunningham was the only dissenter to the bill. She brought a petition to parliament signed by 1,265 people opposing decriminalisation. But many thousands more ignore the law. According to Family Planning Queensland, there were 14,386 abortions carried out in the state in 2006 out of a national total of 71,773, roughly 20 percent of the total. The 15 minute procedure used is the surgical curette which uses a tube to suck the lining and the contents out of the uterus with a small plastic tube. The curette is a very safe procedure with complications occurring in just 0.4 percent of all cases.

Although decriminalisation of abortion has been part of Labor Party policy platform for 30 years, the State Government shows no sign of implementing it. The excuse offered by Premier Anna Bligh is that it would require a conscience vote which she says would not only lose but might produce even tougher laws. Andrew Bartlett disputes this argument and says it is not “sufficient reason not to bring on a debate, which would at least clarify the issue.”

According to Queensland’s Right to Life (recently renamed as “Cherish Life”) the central abortion issue is “the value we accord the individual human life from conception to birth.” But most people don’t believe the value is constant along that line from conception to birth. As Jesuit priest and author on ethical matters, Frank Brennan, says there is a huge difference between “disposing of a beaker full of embryos” and the dismembering and killing [of] a near viable foetus who is only days and inches from a life protected by law and respected by society.” It is time Queensland law caught up with this reality - parliament should repeal sections 224, 225 and 226 of the criminal code.

Abortion and moral equivalence

The Irish Medicines Board (IMB) has warned women against buying the abortion pill RU486 online. RU486 or Mifepristone is widely available in the UK under strict medical supervision but is not authorised for use in Ireland. However Irish women have now started to illegally purchase the pill online avoiding the need to travel to Britain for an abortion. The IMB and customs officers have been monitoring packages coming into Ireland on a continuous basis.

The drug has been promoted by Rachel’s Vineyard, a group which offers weekend retreats for healing after abortion. The group’s director Bernadette Goulding said the drug is used frequently in Ireland. "I've had young women coming to me who would have taken that drug,” she said. “The women would have taken the tablets themselves and aborted at home.” The strictness of Ireland’s anti-abortion laws means that over 6,000 Irish women travel to Britain every year to terminate their pregnancies. Abortion is proscribed by article 40.3.3 of the Irish Constitution which was amended by referendum in 1983 to read “"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."

However Ireland is far from being the only country where the abortion debate rages. The UK is examining its first legal change on the subject in twenty years. The Daily Telegraph reports that “hundreds of MPs” are to vote to lower the abortion limit to 20 weeks. Abortion has been legal in Britain (but not Northern Ireland) since 1967 and has allowed abortion under 28 weeks to avoid injury to the mother or existing children. In 1990 the time limit was reduced to 24 weeks for most cases to reflect improving medical technology. Now further advances are driving the push to reduce it again to 20 weeks. Labour pro-lifer Joe Benton said, "I do think many more MPs…will vote for 20 weeks because late abortion seems less acceptable now that the viability of the foetus is much better as a result of advances in medical science."

Despite its reputation as America’s biggest hot button issue, it is pleasing to note that it is not resonating with the southern voters of Virginia despite attempts by Robert G. Marshall to make it the centrepiece of his campaign for the Republican nomination for Senate. Marshall is one of three Republican hopefuls looking to replace retiring Senator John W. Warner. Marshall has tried to exploit the pro-life community telling people they are "not conservative enough" if they support abortion in cases of rape and incest. But a party insider told the Washington Times that if the Republicans focus solely on this issue, they are “going to get our clocks cleaned”.

Here in Australia the abortion debate has been as passionate as anywhere else despite most opinion polls showing overwhelming support for the right of a woman to terminate an unwanted pregnancy. The 2006 decision for the Therapeutic Goods Administration to approve RU486 rather than the Liberal Health Minister Tony Abbott prompted a stormy and emotional parliamentary debate and conscience vote. RU486 is not an abortion drug however, it kills the foetus, though it may have adverse health effects on the mother.

Abbott, a strong Catholic, had publicly criticised the abortion rate in Australia saying in 2004 that 25 percent of all pregnancies end in abortion three quarters of which were funded by Medicare. After that year’s election he announced a desire to limit taxpayer-funded abortion. Abortion is state law in Australia so Abbott could not directly intervene to change abortion law but the federal government could have stopped the Medicare funding. In the end, however Abbott was rebuffed by his boss John Howard who was aware of the potential electoral repercussions. Abbott later said he did not support removing the Medicare safety net and supported abortion that was “safe, legal and rare”.

This is not a view shared by the leaders of Abbott’s Church. Pope John Paul II’s 1995 Evangelium Vitae declared all direct abortion to be a “grave moral disorder”. But the reality is that community views are not so clear cut. As the Jesuit Frank Brennan puts it in his book “Acting on Conscience”, the majority of citizens do not morally equate the “disposing of a beaker full of embryos” with partial-birth abortions on “near viable foetuses”. Problems emerge over the decision of where to draw this line.

Brennan argues that the pro-choice and the pro-life lobbies are actually in agreement in that they both refuse to countenance that there is a moral difference between the two extremes. For the pro-choicers, partial-birth abortion (usually over 20 weeks) is permissible no matter what the tangible and visible effects while the right-to-lifers argue that community revulsion over partial birth procedures should be translated into a blanket ban on all direct abortion. As Brennan says, it becomes a “winner take all argument” where either all is permitted or none.

Brennan also castigated the stance of the American bishops who threatened 2004 Democrat (and Catholic) presidential nominee John Kerry with excommunication for his pro-choice stance. For some US bishops, Kerry’s stance was a greater crime against conscience than non-Catholic George W. Bush’s reluctance to waive executions as governor of Texas or his decision to go to war in Iraq in 2003. These bishops urged Catholics not to vote for Kerry. Brennan pointed out that “singling out voters for Kerry from voters for Bush is so morally selective as to be political, being perceived to be partisan”.

The case against abortion in the US is undermined, says Brennan, by the numbers of Catholics having and performing abortions. Even if Roe v Wade was overturned, it is unlikely that many jurisdictions would recriminalise all abortion from the moment of conception precisely because there is no moral consensus on when a life begins. There is a big difference between the withdrawal of an embryo from the womb and what Brennan emotively calls the “dismembering and killing [of] a near viable foetus who is only days and inches from a life protected by law and respected by society”.

Cairns pilot for abortion pill

The controversial RU486 drug will be available in Queensland next month. The tourist town of Cairns in Far North Queensland will be the first place in Australia to trial the drug. RU486 is the so-called “morning after” abortion pill recently made available in Australia after a stormy and emotional parliamentary debate and conscience vote.

Cairns obstetrician Professor Caroline de Costa will be the first Australian doctor to prescribe the drug. She said she was expecting to issue RU486 to patients by July once the initial batch of 40 tablets is cleared by the Therapeutic Goods Administration (TGA).
Professor de Costa said the drug would be administered at a private clinic in Cairns to patients referred by locals GPs. Queensland Attorney-General Linda Lavarch said on Monday state law authorised doctors to prescribe the drug. The cost will be about $60 a tablet.

RU486 is the common name for the drug mifepristone. Mifepristone is a synthetic steroid with anti-progestagenic and anti-glucocorticoid effects. This means it can be used to induce what is known as medical abortion. During early trials, it was known as RU-486 after its designation at Roussel Uclaf, a French pharmaceutical company, which designed the drug. It is an alternative method to abortion.

RU486 is a medical procedure whereas abortion is a surgical procedure. It works by blocking the effects of the hormone progesterone, which is crucial to starting and maintaining pregnancy. Without progesterone, the lining that covers the walls of the uterus breaks down. In the absence of progesterone, the uterus cannot hold onto the fertilised egg, making it impossible for pregnancy to continue. Doctors will prescribe a specified dose of the drug to a pregnant woman. Two days later, the woman returns to the clinic to be administered another drug prostaglandin (usually misoprostol.) Misoprostol causes the uterus to contract, thereby expelling the foetus, usually within a few hours. According to the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG), the experience for the woman ‘may be much like a spontaneous miscarriage, with some pain and bleeding to be expected.’

RU486 is approved for use in the US, the UK, much of Western Europe, Russia, China, Israel, New Zealand, Turkey and Tunisia. Despite the recent conscience vote, it was never actually banned in Australia. According to the Therapeutic Goods Act 1989, RU486 is in the category of ‘restricted goods’ which required the written permission of the Minister for Health to be registered or imported. The act specifies that only abortion drugs are in this restricted category. Medicines used for any other purpose are evaluated and regulated by the Therapeutic Goods Administration (TGA) without any requirement for approval from the Minister.

The restricted goods category was introduced in 1996 as an initiative of the independent Tasmanian Senator Brian Harradine, who had strong anti-abortion views. At the time, the Senator argued RU486 had serious side effects, and the amendment was needed to protect the health of Australian women. Liberal Government support was a trade-off for the Senator's support for a bill to allow the part sale of Telstra. And with Tony Abbott, another strong anti-abortion supporter as Health Minister, drug companies have decided it is not worth the bother of applying for the licence to import the drug.

The legislation was overturned by a private member’s bill in February 2006. The purpose of the bill was to remove the Minister’s override and return the approval to the TGA. The bill was a conscience vote and split the parties almost exactly along gender lines. The bill was passed in the Senate 45-28 and the Lower House passed it on a show of hands to avoid further political controversy.

RU486 is mainly used during the first nine weeks of pregnancy, though is also effective for second trimester termination. How safe is it? Supporters have pointed out its wide availability overseas, evidence of its safety and compared with abortion, and the fact that abortion may not be easily available to rural women and those for whom privacy is an issue for religious, ethnic or other reasons. Detractors have denied it is safe, and counter the rural argument by saying it is a high risk option for women without adequate levels of medical supervision. There have been reports of deaths in the US and Canada due to the drug. Six women in the US and one in Canada have died following medical abortions, causing some medical abortion providers to stop using the method of intra-vaginal placement of the second drug, misoprostol. However these incidents occurred due to the fact that women did not follow the FDA approved instructions for the use of the drug.

Professor of Obstetrics and Gynaecology at Monash University Medical Centre, David Healy, doesn’t share these concerns. He believes that RU486 is safe and psychologically a much better method than surgical abortion. He says that “for most women if taken early, this will be just like having a period, rather than having a miscarriage.” He points out that there are 75,000 abortions each year in Australia and anything that helps alleviate that number has to be supported by the wider community. He concludes “this medicine is safe when used under proper medical care. The rest of the world has really moved on. Surgical abortion is now something that is really becoming increasingly old fashioned and no longer the best treatment available for Australian women.”