Cairns abortion trial: guarded optimism for reform process
After less than an hour of deliberation late yesterday morning, the jury in the trial of Tegan Leach and Sergei Brennan delivered their verdict: not guilty on both counts, writes Caroline de Costa.
After less than an hour of deliberation late yesterday morning, the 12 Cairns citizens appointed to the jury for the trial of Tegan Leach and Sergei Brennan stood firm before Judge William Everson and delivered their verdict: not guilty on both counts.
Immediately there was sustained applause from the public gallery, which was filled with friends and supporters of the young couple, and pro-choice activists, who had continued their vigil for reform of Queensland abortion law for nearly four days outside the Cairns courthouse.
Thus ended an ordeal of more than 18 months for Leach and Brennan, who have been hounded from their home, had Molotov cocktails flung at their apartment and most difficult of all, had details of their private lives widely exposed on the internet ever since these charges were first reported in April last year.
Leach was charged under section 225 of the Queensland Criminal Code of 1899, becoming the first woman to be tried under this section, and probably the first woman in any Australian jurisdiction to face such a charge. Section 225 covers a woman who whether actually pregnant or not (since in 1899 there were no home pregnancy tests and women had simply to suspect or fear that they were pregnant) either permits another person to attempt to procure an abortion for her, or herself uses force or any "noxious" thing, or any other means, with the aim of bringing about an abortion.
Brennan was charged under section 226 of the Code with unlawfully supplying Leach with the means to procure an abortion -- it was alleged that he had arranged for a relative in the Ukraine to post him tablets of the two drugs mifepristone (RU486) and misoprostol, together with instructions in their use; that he had then given these to Leach; and that she had used them to bring about an early abortion in the couple’s home in December 2008. These two drugs are those widely and safely used in many countries (and now to some extent used legally and safely in Australia) for the purpose of medical abortion.
These charges were not about the illegal importation of drugs into Australia. Brennan freely and frankly admitted that he had arranged their importation, pointing out that he knew the drugs to be legal in the Ukraine (where he was brought up) and in Russia; furthermore he believed that if they were not legal in Australia the Australian Customs would not have allowed the package into the country.
There was no attempt to smuggle these drugs -- they were sent in their original wrappings through the regular postal system.
Nor were the charges about the dangers of using drugs for medical abortion without the supervision of a medical practitioner. Medical evidence was given to the court by Professor Nick Fisk, of the University of Queensland, who explained clearly and concisely that mifepristone and misoprostol are safe drugs but that there are occasional contra-indications to their use, and occasional complications from their use, and that a woman considering a medical abortion should have a consultation with an appropriate medical practitioner and access to emergency treatment if needed, as part of the procedure of medical abortion.
But as defence counsel eloquently pointed out on Wednesday afternoon, Tegan Leach did not find herself the subject of the close attention of the Queensland legal system because of concern on the part of the authorities about her health or safety. She was in court because she was charged with a crime apparently serious enough to warrant a penalty of seven years imprisonment.
The charges were initially brought by police, who were searching the couple’s apartment in Cairns in early 2009 on another matter (on which no charges have ever been brought against the couple). Empty blister packs of tablets and material written “in a foreign language” were discovered. Detective Sergeant Adrian Worth testified that he took these items to the Cairns Police Station; evidence was given to the court by a forensic chemist, showing that subsequent testing had confirmed the presence of mifepristone and misoprostol, consistent with the labels on the blister packs.
Some weeks after the search of the apartment, Detective Sergeant Worth interviewed Sergei Brennan and this interview was recorded. A DVD of the interview was played to the court on Tuesday afternoon, in the presence of Worth, the jury, both legal teams and members of the public. It lasted nearly an hour. Blinds were lowered to enable the screen to be clearly viewed, so we sat in a semi-darkness that gave a surreal and semi-p-rnographic quality to the scene as we watched Worth ask Brennan numerous pointed and detailed questions about intimate aspects of Tegan Leach’s health and life.
Leach herself was obliged to sit, silent, in the dock, while this discussion ranged about her. While I appreciate that all this was an integral part of the legal process that had been inevitably set in train by the initial police prosecution, I am appalled at the humiliation inflicted on this woman. Can the Queensland Premier and her government really believe that this was necessary, that the law should have been allowed to "run its course", that the police and legal system do not have better things to do?
In their addresses to the jury, the defence counsel and the judge (and indeed the prosecutor) gave particular attention to the word "noxious" as used in section 225. The judge stated "that’s the trouble with these very old statutes" when he agreed with counsel that "noxious" may have had a particular meaning in 1899 (when medical abortion was unknown) but that such meaning is no longer relevant, or at least so clear, in 2010.
Professor Fisk on Wednesday stated that mifepristone and misoprostol are on World Health Organisation lists of essential drugs and that in no sense could they be described, in the 21st century, as "noxious". The judge gave clear directions to the jury on the meaning of "noxious", as "injurious or harmful" to the woman. He told them they would have to be sure "beyond reasonable doubt" that the drugs were "noxious" to return a verdict of guilty. After briefly returning to the court for a further direction from the judge, the jury re-appeared with their verdict.
While the verdict is good news for Leach and Brennan, what does it mean for reform of Queensland’s archaic abortion laws?
Twelve intelligent and thoughtful Queensland citizens have considered sections 225 and 226 of the Criminal Code and concluded that they are not relevant to women undergoing medical abortion in Queensland in 2010. I believe the jury’s decision reflects the opinion of the majority of Queenslanders that abortion should be a private matter for a woman, her partner, her doctor, and whoever else she may wish to involve, and not a matter for criminal prosecution. Abortion needs to be taken out of the Criminal Code and placed in the health regulations.
The Premier should seize this opportunity to explain to the people of Queensland that this very old law needs reform, and that she, the Attorney-General and the government will at once set about having new legislation drafted. If she feels she cannot do this herself, she should ask the Queensland Law Reform Commission to do so -- that presumably is their job.
Quite apart from the irrelevance of the law to current views on women’s rights to access abortion, and to modern abortion practice, there is one very important medical reason emanating from the decision in the Leach and Brennan case that means this needs to happen, and soon. We know that an unknown quantity of drugs for medical abortion already enter the country, undetected, on a regular basis. These drugs are freely available from numerous internet sites, as well as via relatives and friends in countries where they can be bought over-the-counter or otherwise easily obtained.
After this week’s case, sections 225 and 226 are unlikely to be used again soon in the event of such importations being discovered (although certain Commonwealth laws might be.) But unless these sections are removed from the Criminal Code and the law reformed to allow Queensland women legal and accessible medical abortion, the decision may have the indirect effect of encouraging or at least not discouraging clandestine import.
Medical abortion with these drugs though generally safe for the woman does need oversight from a medical practitioner. Moreover drugs bought overseas or on the internet are not subject to the quality control, required by the Therapeutic Goods Administration, of drugs approved for marketing in Australia; they may not contain what they are supposed to, or may not contain a sufficient quantity to be effective, or may actually contain harmful substances. But women may feel compelled to try to obtain these drugs from overseas if they are unable to access abortion safely and legally where they live in Australia.
At the moment few Queensland doctors provide abortions -- and one of the reasons is the uncertain legal status of abortion in the state. We urgently need decriminalisation of the current laws and the inclusion of sensible regulations in the health acts that would allow general practitioners, s-xual health physicians and others to provide early medical abortion to women making that choice for themselves in the event of unplanned pregnancy.
This is particularly the case for women in rural and remote areas of Queensland. Safe accessible medical abortion should be a straightforward option for Queensland women in 2010 -- they should not be forced into the clandestine importation of drugs of uncertain quality from overseas.
For three days I have watched this young couple in court, watched them each day leaving the court, their heads held high, supporting each other. I am personally glad that this trial, and all it has involved, is over for them, and I wish them well in the future.
I sincerely hope that the Queensland government will now move to ensure that never again is such a prosecution brought in Queensland, by decriminalising abortion and thereby making it possible for safe accessible abortion services to be provided to all Queensland women who are faced with making a decision about unplanned pregnancy for themselves, and who choose abortion.