On Tuesday in the Cairns District Court, Judge Brian Harrison set a date of October 12 next for the trial of Tegan Leach, aged 20, and Sergei Brennan, 22. Leach is charged under section 225 of the Queensland Criminal Code with procuring her own abortion in late 2008. Brennan is charged under section 226 of the same code with supplying her with the drugs mifepristone (RU486) and misoprostol, in order to bring about the abortion.

It is alleged that Brennan arranged for his sister to bring the two drugs from the Ukraine in December last year. The sister has not been charged; presumably she has returned to the Ukraine. The alleged offences came to the attention of police early last year when the couple’s home was being searched in relation to another matter — police stated that no charges were brought against either Leach or Brennan in connection with that matter.

The relevant sections of the Criminal Code were first promulgated in 1899 and remain unchanged since then; in fact their wording dates from the English Offences Against the Person Act of 1861. This 1861 Act was abolished by the UK parliament when the Abortion Act of 1967 was introduced in Britain.

Section 225 of the code covers any woman, whether pregnant or not (my italics), who permits another person to attempt to procure a miscarriage for her, or herself uses “force, a noxious thing, or any other means whatever” with that intent. A woman found guilty on this charge faces imprisonment for seven years. The similarly-worded section 226 carries a prison sentence of three years for anyone assisting with an abortion. There is a defence for a doctor in section 282 of the code which, at the time Leach was charged, allowed for a “surgical operation” to be performed if there was a serious threat to the woman’s life or health.

As the case is before the court, public comment on it is not permitted. However, it is possible to point out that the bringing of a charge under section 225 is a unique event in Queensland legal history, and probably in Australian legal history. Leach is very likely the first woman in Australia to be charged with procuring her own abortion.

In 2008, the Victorian Law Reform Commission, in its report to the Victorian Parliament on abortion law in Victoria (where abortion was decriminalised later in 2008) stated categorically that in reforming abortion law Parliament should ensure that it should not be an offence for a woman to perform, or attempt to perform, an abortion upon herself, nor should she herself be liable to any sanction if she allows another person to perform an unauthorised abortion upon her. This advice was duly followed when the Victorian Parliament passed the legislation decriminalising abortion. Similar legislation had previously been passed in Western Australia and the Northern Territory. In the ACT abortion has been decriminalised, and in South Australia, where public abortion services are widely available, there was significant law reform in the 1970s that makes prosecution of the woman very unlikely. So if Leach had lived in Victoria, WA, the ACT, the Northern Territory (and probably South Australia) she would not have been charged with this “crime” as it does not exist.

I have been researching abortion law and practice in English-speaking jurisdictions for the past five years. In Queensland I have searched through police and legal records back to 1899. I have not been able to find a single previous case of a woman being charged with procuring her own abortion, and my research of abortion history in other states has had a similar result.

From1899 until the 1970s, abortion in Queensland was regarded as illegal and only a minute number were ever openly performed, to save a woman’s life, by doctors in hospitals. However, it is an axiom of abortion history that when a woman makes the decision for abortion for herself, then she will find that abortion — safely and legally if she can, and unsafely and illegally if she cannot.

Many hundreds of Queensland women died in the period 1899-1970 from the complications of unsafe abortions. These were abortions performed by themselves with a variety of household implements including knitting needles, crochet hooks and coat-hangers. There were also abortions performed by untrained operators, the “backyarders”, usually using syringes or other instruments introduced into the uterus. Finally, there were abortions performed by certain doctors, with more skill than the backyarders, but only in exchange for large sums of money; women undergoing such abortions who subsequently developed complications were often reluctant to seek help from mainstream medical practitioners, so they too quite often died.

Inquest and trial reports show that between 1899 and 1970, although there were several convictions recorded of abortionists under section 224 of the Criminal Code, and a few under 226 (Brennan’s charge), women themselves were never charged. Doctors were always extremely reluctant to report cases of suspected induced abortion to police, unless a woman was dying; even then most women were not prepared to provide information. Both doctors and police come across in the records as quite sympathetic towards women who had sought abortion, as distinct from those persons who provided or assisted with abortion.

After 1970, with the Menhennit judgement in Victoria and the Levine judgement in NSW, abortion came to be more openly practised in Queensland, as well as in those two states (and elsewhere), as it was assumed by doctors that these judgments provided a precedent on which they could rely if they themselves were charged. This belief was strengthened by the acquittal of Dr Bayliss when he was charged under section 224 in 1986 in Brisbane. The Bayliss case was the only time a charge of abortion was proceeded with in Queensland after 1970, and the woman at the centre of this case was not charged.

From 1970 on, there was also effective lobbying by several groups — the most prominent being Children by Choice — for changes in Queensland abortion law and practice. Certainly safe abortion services have become more available to Queensland women but it can still be very difficult for some women, particularly those in rural or remote areas, to obtain information about abortion services or to access those services.

It is noteworthy that Leach does not appear to have been aware of the abortion services available in Cairns at the time she was allegedly seeking an abortion.

The committal hearing of the couple in the Cairns Magistrates’ Court in September last year brought into focus the extent to which the 1899 legislation is out of step with modern abortion practice. Despite strong lobbying from specialist gynaecologists (not usually a very radical group),  who were concerned that the defence section, 282, of the Criminal Code allowed only for surgical abortions (since medical abortions using licensed drugs were unknown in 1899 ), the government made only minor changes to section 282 and none at all to sections 224-226. This means that abortion in cases of severe abnormality in the fetus is unlawful in Queensland — even though pregnant women in Queensland are strongly encouraged by Queensland Health and private practitioners to undergo the screening tests available to diagnose such abnormalities. Since mid-2009 it has become very difficult for women in whom such a diagnosis has been made to access abortion in Queensland public hospitals — they have been forced into the private sector or interstate, something that does not happen to women in this situation in any other part of Australia.

The fact that abortion law is state law in Australia is an archaic hangover from colonial times. There are now enormous differences between states in the ability of women to access abortion; accessibility is entirely dependent on where a woman lives. There is an urgent need for uniform laws and practice across the country, and this should include abolition of all remaining laws inculpating the woman herself.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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