Professor Caroline de Costa writes:
It is now more than a year since the trial of a young Cairns couple charged with procuring an abortion for the woman. A jury in the Cairns District Court unanimously rejected the charges but the couple spent an agonising eighteen months prior to the trial, the subject of intense and unwanted publicity in the media and on the Internet, and the victims of physical attacks on themselves and their property.
Queensland abortion law remains almost unchanged since the passage of the 1899 Criminal Code, which makes abortion a crime for the woman, the person performing the abortion and anyone assisting her in any way. Sections 224-226 detail numerous ways in which abortion might be carried out, including by instruments, poisons or “any noxious thing.” The word “noxious” formed an important part of the case put by the defence in the Cairns trial, a case that was accepted by both judge and jury.
The couple freely admitted to having obtained the drugs mifepristone (better known to the Australian public as RU486) and misoprostol from overseas. They arranged to have the drugs mailed to them by a relative. There was no attempt to smuggle them into the country – they arrived here in a packet with a green Customs declaration (displayed in court).
Expert medical evidence was given by Professor Nick Fisk of the University of Queensland, a leading obstetrician and gynaecologist with an international reputation. While Professor Fisk was initially called by the prosecution, his evidence was beneficial to the defendants. He explained clearly that mifepristone is a recognised medication widely available overseas, has been used for nearly thirty years for the purpose, among others, of medical abortion, and that it in no sense could it be regarded as “noxious” to the woman using it. This was the crux of the case as explained by the judge to the jury, who took just forty minutes to reach their conclusion of “not guilty.”
Since the trial there have been numerous calls by medical practitioners to the Queensland government to update and reform the antiquated abortion laws, promulgated at a time when safe medical abortion (that is, abortion performed using recognised drugs rather than surgical instruments) was unknown. Apart from slight tinkering to the defence section of the Criminal Code, which permitted abortion by surgical methods only, and only when the woman’s life was endangered, that government has declined to do so.
In September 2009 as a result of urgent calls and withdrawal of services by specialist gynaecologists, the parliament included medical abortion with surgical. But despite enormous advances in medical practice since 1899, and the fact that a majority of Australians support a woman’s right to make her own decisions about unplanned pregnancy, the Premier and her government have refused to make any further significant change.
In the Brisbane Courier Mail of 6th December, Professor Fisk, and Professor Heather Douglas, of the University of Queensland Law School, have made a strong case for abortion law reform in Queensland, and this has been supported by a number of other medical practitioners and organisations.
They recommend that the question of abortion law reform be sent to the Queensland Law Reform Commission, as happened in Victoria prior to the decriminalisation of abortion in that state in 2007. This would enable all members of the Queensland public to make their views known, and would remove the burden of decision making from the Premier, who, though she repeatedly states “her belief that abortion is a matter for a woman and her doctor” retains a situation where it is also a matter for the state’s legal apparatus, as the Cairns case clearly demonstrated.
The situation is made more urgent by the fact that it is anticipated that some time next year mifepristone will become nationally available. At present it can be accessed only by individual doctors making direct application to the Therapeutic Goods Administration in Canberra. National availability would mean that the drug could be prescribed by any doctor who wished to do so, in particular general practitioners with appropriate experience in women’s health care, across Queensland as in the rest of Australia.
The decision in the case of the Cairns couple would seem to indicate that mifepristone, if not a “noxious” substance in that situation, should not be noxious in any other circumstances. The decision in 1986 in the Brisbane District Court when Dr Peter Bayliss was charged with performing a surgical abortion, and was acquitted, has been regarded by medical practitioners performing surgical abortions in Queensland, and by government ministers, as providing protection to these doctors. Does the decision in the Cairns case provide similar protection to doctors performing medical abortion? The government refuses to address this question.
There are around 15,000 abortions performed in Queensland each year, of which an increasing number are medical – currently these are illegal, and doctors would rely on case law for defence if prosecuted. The national introduction of mifepristone will confuse the situation even more.
There is also the indisputable fact that mifepristone is easily available on the Internet and can be mailed from overseas to women in Australia without detection – the Cairns case clearly shows this.
History teaches us that when safe lawful abortion is difficult to obtain for women, they will seek unsafe, unlawful abortion. There is much anecdotal evidence to suggest that women in Australia are obtaining the drug from overseas in this way, particularly from China, where it has been licensed for use since 1987. It is extremely undesirable for women to be resorting to such methods.
Medical abortion should be carried out under the supervision of medical personnel, and the woman should have all appropriate assistance in decision making, care during the procedure, and follow-up. There is as well the strong possibility that drugs bought on the Internet are not what they purport to be, which can pose grave dangers for those obtaining them.
There is an urgent need for abortion law reform in Queensland. Abortion law should reflect abortion practice in the 21st century. The government should send the 19th century legislation to the Law Reform Commission for review and recommendation, and act on those recommendations.
• Caroline de Costa is Professor of Obstetrics and Gynaecology, School of Medicine and Dentistry, James Cook University
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