A history of abortion law in Queensland

Cairns is the latest battleground in the fight to update Queensland’s antiquated abortion laws. Cairns District Court will try Tegan Leach, 21, and her partner Sergie Brennan, 22, for procuring drugs for an abortion between November 2008 and January 2009. Leach has been charged with procuring her own miscarriage and Brennan with procuring drugs for an abortion. The Crown’s case is that S282 of the criminal code does not apply in this case and because there was no serious risks to the health or to the mental or physical health of Leach, the abortion was illegal. The case jeopardises the availability of the 14,000 abortions carried out each year in Queensland.

In Queensland, abortion is a crime under the Queensland Act, although generally regarded as lawful if performed to prevent serious danger to the woman’s physical or mental health. Queensland has legislation dating from 1899 that criminalises abortion. Abortion is defined as unlawful in the Queensland Criminal Code (1899) under Sections 224, 225 & 226 (sited between “incest” and “indecent acts” in the code). Women, doctors and their helpers can be criminally prosecuted for accessing abortion. Under section 224 a person who intends to “procure the miscarriage of a woman” is liable for 14 years imprisonment. Under S225 a woman who seeks her own miscarriage is liable for seven years while S226 condemns anyone else who helps out to three years. The only defence is S282 which absolves medical operations on “a person or an unborn child to preserve the mother’s life”.

In the Cairns case, police alleged the couple arranged for a relative to bring a supply of the drug misoprostol with a variation of mifepristone, used in medical abortions, to Australia from the Ukraine. They also alleged the woman used the drug successfully to terminate her pregnancy at 60 days, after the couple decided they were too young to parent. Leach has been charged under S225 and Brennan under S226. She faces a maximum of seven years while he faces three years in prison.

While this is the first time in over 50 years a woman has been charged in Queensland for choosing an abortion, the case is the latest in a long line of state sanctions against pro-choicers. In the Joh era of the early 1970s, the Minister for Justice announced it was illegal to terminate the pregnancy of a woman with rubella, and vasectomy was illegal. Although a few private doctors were prepared to do a limited number of abortions and menstrual extractions, abortions in public hospitals were performed strictly on medical grounds. Most women had to travel interstate to obtain an abortion.

The Greenslopes Fertility Control Clinic opened in 1976 and was a thorn in the side of the hypocritically conservative (but corrupt) Joh administration for the next ten years. A court ruled search warrants in a police raid on the clinic in 1985 were invalid so the Government appealed for whistleblowers to denounce the clinic. A 21-year-old mother came forward and the clinic’s Drs Bayliss and Cullen were charged with procuring an illegal abortion contrary to Section 224 of the Criminal Code, and inflicting grievous bodily harm.

Judge McGuire heard the case and based his ruling on the English case R v Bourne (1939) and a Victorian ruling by Justice Menhennit in R v Davidson (1969). McGuire said R v Davidson represented the law in Queensland with respect to Sections 224 and 282. S282 provided the accepted defence to a charge of unlawful abortion under s224. It meant a prosecution under s224 would fail unless the Crown could prove the abortion was not performed “for the preservation of the mother’s life” and was not “reasonable having regard to the patient’s state at the time and to all the circumstances of the case”.

Since the 1980s, lobby groups have fought to change the abortion law. In 1995 the Goss Labor Government introduced “revised” criminal legislation that retained abortion as a criminal offence despite the Premier’s support in Parliament for women’s access to abortion. A year later, his Government was defeated and the new Health Minister in the Borbidge Government cancelled funding for women’s choice support groups. They were re-funded under the Beattie administration in 1999. A Taskforce on Women and the Criminal Code recommending repeal of the abortion laws in 2000 citing community support. However the Beattie government would not implement this recommendation claiming abortion was a matter of conscience for members of parliament and not public policy. Anna Bligh hid behind the same excuse when refusing to change the law last year and so abortion remains illegal in the state.

Where abortions are illegal, they are also generally unsafe. In the Deakin Law Review, Rebecca Dean estimates 68,000 women die annually and 5.3 million suffer temporary or permanent disability as a result of 20 million unsafe abortions across the world. “Women will continue to have unplanned pregnancies they seek to abort because, among other factors, contraception is not one hundred percent effective, and rape and domestic violence are prevalent around the world,” she said.

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