The headline in the Cairns Post of 17 April summed it up well: “Miscarriage of justice”. On the previous day in the Cairns Magistrates’ Court, a 19-year-old woman was charged with procuring her own abortion. Her partner, aged 22, was charged with assisting her. The two are to appear in the Cairns District Court in June.
It is alleged that the young man arranged with his sister to bring into Australia from the Ukraine a supply of the drug misoprostol, which is one of the drugs legally used for medical abortion in Australia — including in Cairns. It is further alleged that his partner used the drug to procure her own miscarriage at 60 days of pregnancy (less than nine weeks). Police stated to the court that misoprostol packets and instructions for the use of the drug, in Ukrainian, were found in the couple’s house. Police also apparently told the court that the couple had not sought medical advice about the availability of abortion in Cairns.
Firstly it must be said that it is tragic for this woman that, having made the difficult decision for abortion and gone (apparently without complication) through the process of abortion — which in my experience is never easy for any woman — she has now been publicly identified and will be further exposed to the humiliation of further court appearances. It is also unfortunate that her partner, who clearly has been very supportive of her, will be equally shamed. Abortion should be an entirely private matter for a woman, her partner and her doctor.
The Queensland state legislation that has been used in these cases is contained within the Queensland Criminal Code in sections 224-226. Section 224 states that a doctor who performs an abortion commits a crime, section 225 that the woman commits a crime, and section 226 that anyone providing any substance or thing to aid the abortion commits a crime.
There is a defence for the person charged with one or more of these crimes in section 282 of the Code — which allows a “surgical operation” for the preservation of the mother’s life if the performance of the operation is reasonable. This was broadly interpreted in the case of Dr Harry Bayliss and Dr Dawn Cullen in 1986. These two doctors were acquitted on charges of procuring an abortion, and the judgement from that case, the McGuire Judgement, is the case law on which doctors currently performing abortions in Queensland, including myself, would rely if similarly charged.
The Queensland Criminal Code dates from 1899, and was in turn based upon the English Offences Against the Person Act of 1861, using, in the sections dealing with abortion, virtually the same wording. Section 224 of the Code has been used very rarely since 1899, sections 225 and 226 have probably never been used, and certainly not in the last 50 years.
The law was originally designed to protect women from unsafe backstreet abortions — it failed to do this at the time it was promulgated and it is completely at odds with the contemporary practice of abortion and the views of the majority of Australians who believe that safe legal abortion should be accessible to all women.
This extraordinary event raises some very disturbing questions. Firstly, it demonstrates the grey area that abortion still occupies in the health services. Safe abortion, both medical and surgical, is available in Cairns but it appears that these young people may not have been aware of this.
Misoprostol is usually used for medical abortion in conjunction with either mifepristone (RU486) or methotrexate; it can be effective when used alone (and would appear to have been in this case) but it should be used under medical supervision. This woman should have had the availability of counselling, support and follow-up services as well as sympathetic supervision of the abortion process itself. Why did this not happen?
The case also demonstrates the urgent need for reform of Queensland’s abortion laws which are now the most antiquated and repressive in the country.
The incoming Queensland government should follow the lead of Victoria and send the abortion laws to the Law Reform Commission for review — abortion law should be taken out of the Criminal Code and subject simply to the health regulations which deal very effectively with health including women’s reproductive health. This was recommended to the Beattie government in 2002 in the report Women and the Criminal Code, which they commissioned. Why was this recommendation not followed?
The third question is the identity of the person or persons who informed the police, not at this point publicly known. According to the Cairns Post, the drug was brought into the country on December 25th, and presumably used soon after.
The police searched the couple’s house on March 30th and found the misoprostol packets. It seems unlikely that the police would act without good professional information on the nature of the drug.
Did another Cairns medical practitioner, learning of the event, report it to the police? Whoever they are, what was their motive, three months after the event? These charges each carry prison sentences of fourteen years? Who in Cairns would be so morally outraged that they would wish such a fate on a young couple making this private decision for themselves, alone and without medical assistance?
There is already enormous concern on the part of Cairns doctors about many aspects of this case. We would hope that the DPP and/or Attorney General would look at the case with a view to withdrawing the charges. We would also hope that it will clearly demonstrate to the government of Queensland the urgent need to decriminalise outdated abortion laws.