The Legal Minefield Of Abortion Law


Imagine this scenario: You go to a doctor and get a prescription. You fill the prescription at a pharmacy, go home and take the medication. A few days later you find yourself being arrested and charged with a criminal offence.

In August 2012 the Therapeutic Goods Administration approved the drug mifepristone (RU486) for use in Australia. The Pharmaceutical Benefits Scheme advisory group is currently considering an application to have it listed on the PBS.

The pharmaceutical company importing and distributing the medication is already offering online training for medical practitioners in prescribing and advising patients on this medication. RU486 has been used safely around the world for decades and is on the World Health Organisation’s essential medicines list.

After a fight in 2006 to lift restrictions on the importation of mifepristone, its approval by the TGA in 2012 was hailed as a breakthrough in women’s health. It improves access for women in regional and rural areas — and a provides options for women who would prefer their abortions take place in the privacy of their own homes.

To date, the limited use of medical abortion in Australia has required the patient to take mifepristone (or an equivalent drug) in front of the dispensing doctor, then to return the next day for misoprostol or its equivalent to complete the process. In regional and rural areas, travel and accommodation costs, along with the inconvenience of being away from families overnight, mean a take-home option for both medications would be far more practical. This is the model that is being proposed by the distributor. Any area with medical services equipped to deal with spontaneous abortion (miscarriage) can deal with any complications from the use of RU486.

RU486 is safe on medical grounds — but legally using it means navigating a minefield.

Approval by the TGA and the regulation of pharmaceuticals — as well as most regulation of the medical profession — are matters of Commonwealth law but given the purpose of RU486 is to induce abortion, its use will also be governed by state and territory laws. This is where problems will arise for women and possibly doctors and pharmacists in several jurisdictions.

Sections of criminal legislation relating to abortion in most states are an adaptation of the Offences Against the Person Act 1861, an English statute. This act was enacted at a time when women did not have the vote.

It was also a time when there were no pregnancy tests as we know them today. The original UK law determined that abortion was illegal "whether the woman is pregnant or not" as a medical diagnosis of pregnancy was usually made upon quickening — the physical sensation of a foetus moving in the uterus which is usually not felt until about halfway through the pregnancy. Women would suspect pregnancy much earlier however and seek abortions.

A combination of desperate women unsure of their biology and unscrupulous profiteers meant that invasive procedures could be carried out on women needlessly. Many died from shock, infection or haemorrhage. The laws of this era were designed in part to protect women from this fate. In a world with accurate pregnancy tests, modern medical procedures and skilled doctors, these laws are obsolete.

Yet they persist.

For example, were I to obtain these medications in Victoria and go north to NSW to take them, I would be committing an offence under section 82 of the NSW Crimes Act 1900 by procuring a miscarriage, and would be potentially facing a criminal trial and up to 10 years "penal servitude". In NSW judicial precedent is relied upon by doctors, but would not help a woman in the this scenario.

If I travelled south to Tasmania and took the medication I would similarly be committing an offence under section 134 of the Criminal Code Act 1924 and could face up to 21 years jail. The reactionary amendment to the Act (s164) after a complaint to police in 2001 would not help me here.

If I went to South Australia I would be committing an offence under section 81(1) of the Criminal Law Consolidation Act 1935 and be "liable to be imprisoned for life".

If you find yourself thinking that criminal charges would never be laid against a woman in such circumstances, let me remind you that this has already happened.

A young woman named Tegan Leach obtained mifepristone from overseas and took the medication in the home she shared with her partner in Queensland in 2008. In early 2009 their home was searched by police for a completely unrelated matter. Unluckily for her, she had not disposed of the medication packaging. Not realising abortion was still a crime, when questioned by police she freely disclosed what the drugs had been for and why she had taken them.

The public prosecutor chose to charge her with procuring her own miscarriage, under section 225 of the Queensland Criminal Code Act 1899. The media saturation, the attacks on the young couple and the criminal trial that followed were documented in Professor Caroline De Costa’s book, Never Ever Again: why Australian abortion law needs reform. Leach was acquitted of a crime only through the semantics of a legal definition of the word "noxious" and a sympathetic jury.

Unless there is a crisis, socially conservative parliaments prefer to turn a blind eye and sweep abortion issues under the carpet in preference to facing the wrath of the anti-choice groups.

When there is a crisis, such as a complaint to police about illegal abortion, parliaments usually act to avoid the embarrassment of sending people to trial for abortion-related crimes. When legislative amendments are rushed through parliament without time for a thorough consideration of the issues, with trade-offs of restrictive amendments in exchange for votes, there are often unforeseen negative consequences.

The worst thing about reactionary amendments is that they are usually done to protect doctors, not to give women full autonomy over their bodies. Even in states such as Western Australia and Tasmania which have amended their criminal legislation, it is usually not the woman’s legal authority to decide whether to continue her pregnancy, it is the legal prerogative of one, or sometimes two, doctors, who may not have met the woman prior to making this life-altering decision on her behalf. The majority of doctors do not want the responsibility of being a legal gatekeeper.

Other jurisdictions rely on judicial precedent and usually involve a relative risk assessment. That is, the doctor/s must assess that the risk of continuing the pregnancy must be greater than the risk of terminating it. This, by the way, is laughable given that medical evidence tells us that early terminations are infinitely safer than full term pregnancy and childbirth.

It is worth reinforcing this point. In 2012, in most states and territories of Australia, a woman still does not have the legal authority to decide to terminate her pregnancy.

This raises important questions for women, medical practitioners, police and legislators. Will women risk prosecution by the state for using a medication approved by the Commonwealth or will state and territory governments act to modernise their laws?

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.