Following the acquittal on Thursday of the young Cairns couple accused of procuring the woman’s abortion under sections 225 and 226 of the ancient Queensland Criminal Code, my colleagues and I have given much thought to the implications for doctors practising medical abortion in this state. These implications would appear to be quite positive.

The wording of section 225 under which the young woman was charged states that a woman who “with intent to procure miscarriage … unlawfully administers to herself any poison or other noxious thing, or uses force of any kind, or uses any other means whatever” is guilty of a crime. Counsel and the judge in the case indicated that the matter at the heart of this charge was the meaning of the word “noxious”.

Giving expert medical evidence, Professor Nicholas Fisk, of the University of Queensland, explained that mifepristone (RU486) and misoprostol are safe and effective drugs widely used overseas, and to some extent in Australia, not only for abortion but for a variety of medical indications; they appear on a list of drugs considered by the World Health Organisation to be essential medicines. They are both approved for use in Australia by the Therapeutic Goods Administration (under different pieces of legislation). They are not, in Professor Fisk’s opinion, noxious — this word was defined by the judge as meaning “harmful or injurious to the woman”.

Having carefully considered this evidence the jury returned a verdict of not guilty.

Queensland doctors practising medical abortion using mifepristone and misoprostol have until now done so in accordance with section 224 of the Criminal Code.  Here there is the exact same wording as in section 225: “Any person who with intent to procure the miscarriage of a woman … unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever” is guilty of a crime.

Having taken preliminary legal advice, we believe that the decision in regard to section 225 in the Cairns case provides a precedent for use by Queensland doctors of mifepristone and misoprostol for medical abortion; that these drugs are not “noxious” and that their use is therefore not a crime under section 224. It appears that section 282 of the Criminal Code and its interpretation in the 1986 Bayliss case, which restrict abortion to cases in which the woman’s life or physical or mental health is threatened by continuing the pregnancy, are therefore no longer relevant for a Queensland medical practitioner performing a medical abortion using these drugs, since a crime is not committed.

The decision in this case has in fact decriminalised the use by doctors of mifepristone and misoprostol for the purpose of medical abortion in Queensland (although at present practitioners still require approval from the Therapeutic Goods Administration for the prescription of mifepristone.)

Mifepristone and misoprostol may be safely used for early and late medical abortion. There is therefore now the possibility that these drugs can be lawfully used in appropriate cases in Queensland Health hospitals, in particular for cases where a severe fetal abnormality is diagnosed, and that abortion “tourism” to other states from Queensland can stop.

There is also the possibility of their being much more widely used in Queensland by any practitioner who obtains authorised prescriber approval from the TGA. This would have the potential to increase access to abortion for Queensland women in rural and remote areas, provided practitioners have access to the facilities needed for treating women experiencing spontaneous miscarriage.

Section 224 of the Criminal Code would appear to still be applicable to surgical abortion, and a defence for surgical abortion would have to continue to be found in section 282.

As I wrote in Crikey of October 15, there will continue to be the possibility of members of the general public obtaining these drugs overseas or online  and using them without medical supervision in Australia, so long as safe medical abortion is not available to them in Australia. This is particularly relevant to the current Queensland situation, which needs to be addressed urgently by the government.

Peter Fray

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