A young couple in Queensland face charges of procuring the woman's abortion with the drugs RU486 and Misoprostol. The case provoked widespread doubts about the legality of abortion in Queensland, especially medical abortion. State politicians, even those claiming to be pro-choice, are reluctant to decriminalise abortion saying that such a move would cost votes or might lead to an even more restrictive position than that which now prevails. In fact more than half the electorate in Australia and in Queensland support freedom of choice, and a further third support the availability of abortion in special circumstances. Candidates for election to the federal parliament are even more liberal. Such opposition as there is is concentrated among a few religious groups and among people aged 75 and over. As far as attitudes are concerned, Queensland is no different from the rest of Australia. A May 2009 Auspoll found that 79 per cent of Queenslanders supported decriminalisation.
TEGAN LEACH AND SERGIE BRENNAN
On 20 March 2009 police searched a house shared by 19-year-old Tegan Simone Leach and her partner, 21-year-old Sergie Brennan, at Mt Sheridan, a suburb of Cairns in northern Queensland. This was part of a routine series of calls on more than 200 dwellings to interview possible informants or witnesses in a murder investigation. There is no suggestion that Leach or Brennan had any connection to the alleged murder but, in the course of the search, the police found empty packets of RU486 (also known as Mifeprostone), Misoprostol, painkillers, and instructions written in Ukrainian. Misoprostol is a drug commonly used with RU486 to induce a miscarriage. (1) The police decided that Leach had used the drugs to bring about the miscarriage of a 60-day-old foetus in December 2008. They did not initially say how they reached this conclusion (2) but at the committal hearing on 3 September it emerged that Leach had told them. She was charged with procuring her own miscarriage and Brennan was charged with supplying drugs to procure an abortion and, on 11 September 2009, they were committed to stand trial. (3)
The drugs had been smuggled into Australia from the Ukraine by Brennan's sister; (4) however the charges did not involve smuggling, they concerned illegal abortion. The media not only published the names of the accused, they gave out their address. Subsequently Brennan's car was smashed and their home firebombed. The couple then moved to a new address equipped with security cameras and guard dogs. (5)
Leach is believed to be the first woman to be charged with procuring her own abortion in nearly 50 years, (6) but medical practitioners report that both RU486 and Misoprostol are widely available on the black market and that they often treat patients who have taken them. (7)
THE LAW IN QUEENSLAND
The World Health Organization reports that unsafe abortion is a leading cause of maternal mortality and morbidity, and its incidence is closely linked to the availability of legal abortion, whether surgical or medical. Thus the legal status of abortion has a direct effect on women's health. (8)
The situation in Australia is confused because abortion laws vary from state to state. (9) The relevant statutes in Queensland were drafted in 1899 and are the oldest in the country. Section 224 of the Queensland Criminal Code (QCC) states that it is a crime to administer 'any poison or noxious thing' or use 'any other means what ever' to procure the miscarriage of a woman. The maximum penalty is 14 years imprisonment. Section 225 states that if the woman herself attempts to procure her own miscarriage she is 'guilty of a crime, and is liable to imprisonment for 7 years' and section 226 states that it is illegal to assist in a surgical procedure or in administering a 'noxious thing' to 'unlawfully' procure a miscarriage. The maximum penalty here is three years imprisonment. (10) Leach has been charged under section 225 and Brennan under section 226.
In fact surgical abortions are now frequently performed in Queensland, possibly 14,000 to 15,000 a year. (11) These operations are presumed to be legal, a presumption based on common law precedent, deriving from the case of R v Bayliss heard in 1986. Section 282 of the QCC states that a person is not criminally liable for performing 'a surgical operation upon any person for the patient's benefit, or upon an unborn child for the preservation of the mother's life'. This was the defence used in R v Bayliss, a defence accepted by the presiding judge, Justice McGuire. His decision was appealed in the Queensland supreme court but the judgment was upheld, an outcome that meant that the situation in Queensland was then similar to that of New South Wales and Victoria. In both these states the common law had already modified the effects of statute law. The McGuire decision meant that women in Queensland who could find a private clinic and a sympathetic doctor were able to obtain surgical abortions in a context that was generally believed to be legal. (12)
In Victoria that situation changed in 2008 when the state parliament passed the Abortion Law Reform Bill. This repealed the statutory and common law offences of abortion and substituted a new section 65 of Victorian Crimes Act which, in effect, only outlawed abortion if performed by an 'unqualified person'. Medical practitioners, nurses and pharmacists are all listed as qualified persons, a development which permits a broader range of health professionals to be involved with medical as opposed to surgical abortions. The new Act allows abortion by a registered medical practitioner on a woman who is not more than 24 weeks pregnant. (13)
The drug known as RU486 or Mifepristone, together with Misoprostol, leads to complete abortion in 93 to 98 per cent of cases. (14) RU486 was developed in the 1980s but has proved controversial. Until 2006 it could not be legally imported into Australia without the written permission of the Minister for Health, who then had to lay this permission before Parliament within five sitting days. (15) As no applications were made to the Minister this, in effect, amounted to a de facto ban on the importation of the drug. (16) In February 2006, as a result of a private member's bill, the federal parliament passed an amendment to the Therapeutic Goods Administration (TGA) Act 1996 (Cth). (17) This meant that the Minister no longer had to give his personal approval; the TGA could give it on its own account. A Morgan poll taken at the time showed majority approval for RU486 being made available to Australian women: 62 per cent supported this, 31 per cent did not, and seven per cent couldn't say. But the question said nothing about medical supervision and could have been understood as referring to self-induced abortions. (18)
Despite the new amendment, approval for doctors to import and prescribe the drug has been given out parsimoniously; in 2006, for example, the TGA gave permission to two doctors in Queensland, including Caroline de Costa, an obstetrician and gynaecologist living in Cairns. The application process is difficult. In May 2008 Crispin Hull wrote that because of this, and because of difficulties in sourcing supplies, RU486 still remained in effect a prohibited import. (19) As of August 2009, only 61 practitioners had been licensed to import the drug. (20) Thus the legislative change of 2006 did not lead to any widespread increase in the availability of the drug. (Misoprostol was already available as a treatment for gastric ulceration and thus can be used for abortion with RU486 off-label.) (21)
While medical opinion favours RU486 used with Misoprostol, another drug, Methotrexate (a cancer drug) is also used. Because both Misoprostol and Methotrexate are already available, hospitals have been able to use them for medical abortion without having to apply to the TGA. (22) While most abortions in Queensland, and elsewhere in Australia, are surgical and are performed in private clinics in the first 12 weeks of pregnancy, hospitals are more likely to handle the minority of late-term abortions; these are usually carried out because of late diagnosis of serious foetal abnormalities. (23) In such cases, medical methods are more suitable than surgical ones. (24) But medical methods are also appropriate for first-trimester abortions, and may indeed be safer than surgical ones in some circumstances.
Nevertheless the advent of effective medical methods of abortion has created potential difficulties for practitioners in Queensland. This is because the 1986 McGuire judgement referred only to surgical operations; it was possible that medical abortions were still illegal regardless of the qualifications of the practitioner or the mother's circumstances. Thus the Leach and Brennan case has created uncertainty about the legality of abortion in Queensland, especially medical abortion. As of early September 2009 most hospitals and private practitioners in Queensland had stopped offering medical abortions (25) and were referring patients to hospitals across the border in New South Wales. (26) The legal uncertainties were compounded by practitioners' fears that their medical indemnity insurance might no longer be valid. (27)
The Leach and Brennan case has therefore provoked a new sense of urgency for the reform of Queensland's criminal code and politicians have been under pressure to introduce changes. On 3 September the Queensland parliament passed an amendment to section 282 giving doctors the same protection for medical abortions as they already had for surgical ones. The opposition assented to this change in response to assurances from the Labor premier, Anna Bligh, that the change would do nothing to make abortion more available. It remains to be seen whether the change will be sufficient to allay the legal uncertainties created by the Leach/Brennan case. Doctors were asking for full decriminalisation...