At the Queensland ALP State Conference in early June, the party’s long-held policy on abortion was reaffirmed. Labor’s policy platform calls for "all legal distinctions between termination of pregnancy and other medical procedures [to]be abolished by repealing sections 224, 225 and 226 of the Criminal Code". Thus far, the Queensland ALP has failed to legislate this plank of the policy platform.
In April, two Cairns residents were charged under these very sections of the Queensland Criminal Code. Tegan Leach, who is 19, allegedly took misoprostol (not RU486 as some media reports are stating) to induce a miscarriage around eight weeks into her unwanted pregnancy. Misoprostol is a drug approved for use for treatment of gastric ulcers by the Therapeutic Drugs Administration. Leach was arrested months after the alleged abortion took place. Her partner, Sergie Brennan, was charged with procuring and supplying drugs to procure an abortion. Brennan’s sister allegedly brought the misoprostol into the country from overseas, but has not been charged.
According to The Australian, Queensland Premier Anna Bligh has claimed that this case is mainly concerned with the importation of misoprostol and its use without medical supervision.
"I think that no matter what happens with the law in relation to terminations you would still see prosecutions in these circumstances go ahead," Bligh said.
The implication of Bligh’s comment — that the prosecution of Leach and Brennan bears on the importation of drugs rather than abortion — is misleading at best. The two defendants in Cairns aren’t facing charges under drug laws. Leach and Brennan face lengthy prison sentences after being charged under the QLD Criminal Code (1899) in the chapter pertaining to "offences against morality" for procuring an abortion — a choice many couples have made before them.
Leach was charged under section 225 and faces a maximum seven years in prison. Section 225 states:
"Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years."
Brennan faces three years and is being charged under Section 226:
"Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a misdemeanour, and is liable to imprisonment for 3 years."
The Section used to prosecute doctors for procuring an abortion is Section 224, which states:
"Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years."
However, Section 282 then goes on to state:
"A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient’s benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all circumstances of the case."
The last time someone was charged in Queensland under section 224 was in R v Bayliss and Cullen (1986) when two doctors were brought before the courts. They were eventually found not guilty because of the parameters set out in section 282. It has been over 50 years since anyone was charged under section 225, and section 226 has probably never been used. The commitment of the Queensland ALP platform to repeal these sections seems far from radical in view of this case history. "I don’t know what the government is waiting for before they decide to act," says Kate Marsh from pro-choice organisation Children by Choice.
Medical practitioners throughout Australia use misoprostol and a cancer drug methotrexate for "medical abortion". However, because Queensland law only allows "surgical" abortion to save a woman’s life, the use of misoprostol for "medical" abortions isn’t technically permitted. Medical practitioners are using these drugs "off-label" and apparently putting themselves at risk of prosecution — a calculated risk many doctors have taken to date. However, the prosecution of Leach and Brennan has already diminished women’s choices surrounding terminations in Queensland as doctors reconsider what options they can legally offer to their patients.
Cairns doctor Caroline De Costa was one of a handful of medical practitioners given permission for a trial period to use RU486 and misoprostol to induce miscarriage before the nine-week mark of a pregnancy. De Costa has now ceased offering those options because of fears of prosecution.
De Costa’s legal advice has been that Queensland laws override any permission given by the Therapeutic Goods Administration in regards to use of the drug for abortion. Her colleague, Dr Michael Carrette, has also stopped offering RU486 and misoprostol for abortions. Both have urged the medical profession to down their tools, so to speak, until the laws are clarified.
"We have decided to stop RU486/misoprostol abortions until the law is changed. We are aware that at least one doctor in Brisbane previously doing methotrexate abortions has stopped. We cannot rely on the assurances of politicians that ‘it will all be all right’ when it is clear from our expert legal opinion that it’s not," De Costa told newmatilda.com.
She believes the law is in urgent need of updating to reflect community views and current accepted medical practice.
"Unfortunately the Government has not listened to what we have been saying for the past three years [since they were given permission to dispense RU486] — that the law on abortion dates from the 19th century and needs updating, or in my opinion, decriminalisation," she said.
"Anna Bligh has repeatedly said that ‘abortion is a matter for a woman and her doctor’. I entirely agree, but this is not the case at present in Queensland because abortion is a crime, and the doctor cannot provide a number of options for Queensland women available elsewhere in Australia."
"It’s not about the morality or ethics of abortion. There is no reason why she cannot explain this to her Government and the public and send the current law to the Law Reform Commission to report back on, as has happened in Victoria."
Abortion was decriminalised in Victoria last year after the laws were reviewed by that state’s Law Reform Commission — but Bligh is resisting calls to do the same in Queensland. She has stated that any changes to the laws governing abortion in Queensland would have to come about by way of a private member’s bill — which she has no intention of introducing.
Premier Bligh has chosen to do nothing about the strict abortion laws in the state she leads, even though she is known to be pro-choice and a recent poll showed that 79 per cent of Queensland residents support reform of abortion laws. There was only slightly less support for decriminalisation among conservatives. Emily’s List, a political network, which supports Labor women candidates who are pro-choice and supportive of action on child-care and equal pay, endorsed Premier Bligh at the last election. A representative from Emily’s List has said they wouldn’t be withdrawing support for the Premier over her inaction. "How each MP manifests their pro-choice position is up to them. We don’t dictate to MPs that they should bring forward legislation or vote one way or another," National co-convenor of Emily’s List, Hutch Hussein said.
Premier Bligh’s actions, or rather inaction, on abortion laws has serious implications for the women of Queensland, particularly if the two defendants in the Cairns case are found guilty. A successful prosecution could lead the way to more people being charged under the moral offences section of a criminal code which was written at the end of the 19th century. Premier Bligh’s public comments on the case obscure the issue. Indeed, the misleading nature of her comments irresponsibly deflects legitimate calls for action and reform on reproductive rights in Queensland.
The Cairns case has been adjourned until 8 July. Premier Bligh’s office had not yet responded to newmatilda.com’s questions at time of publication.
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