I posted about this in the
Roe v. Wade thread, but given that it's growing to become just as complex in its own right I thought I'd give it a thread of its own.
A young couple is currently standing trial in my state for having an abortion. The facts and the legal background are very important and somewhat confusing, so I’ll do my best to describe them simply.
In February 2009, as part of a murder investigation, officers of the Queensland State Police Force carried out a routine search of a number of houses in North Cairns, Queensland, Australia. In the house shared by Sergie Brennan, 21, and his partner, Tegan Leach, 19, they found a number of empty blister packets that had contained the abortion drugs RU486 and Misoprostol. The police questioned the couple on the packets, and heard that, late in the previous year, Leach had taken a home pregnancy test and discovered that she was pregnant. She discussed the situation with Brennan, and they decided to have an abortion. Brennan subsequently acquired the drugs from relatives in the Ukraine.
Brennan said that he believed that the drugs were legal as they cleared Australian customs, and both Brennan and Leach believed that abortion was legal in Queensland. While s. 224-226 of the Queensland Criminal Code forbid abortion, no-one has been prosecuted in an abortion-related case since 1986, and prosecutions of women for having abortions have been unknown anywhere in Australia since the early 1960s. You can see a map of state-by-state abortion laws in Australia on wikipedia
here.
In the 1968 case of
R v Davidson, the Supreme Court of Victoria established, more or less, that an abortion performed by a doctor would be legal if it met the requirements laid out by state law (then the
Offences Against the Person Act) in his honest and reasonable opinion. This decision was subsequently copied by other State Supreme Courts, being adopted in Queensland in the 1986 case of
R v Bayliss and Cullen. It meant that it became almost impossible to convict a doctor for a breach of an anti-abortion law, as no jury could find beyond reasonable doubt that, in his view as a medical professional, an abortion was not justified in the circumstances. Prosecutions over abortion in Australia had always been extremely rare, but following this they became non-existent. In the jurisdictions where abortion was still subject to restrictions – the states of Queensland, South Australia, Tasmania and Victoria, and the Northern Territory – laws against abortion remained on the books but were unenforced. In Western Australia and New South Wales, abortion was technically restricted but allowed in such a wide range of circumstances as to be effectively legal on demand. This resulted in a fragile but lasting compromise between pro-lifers and pro-choicers, which suited Australian politicians, who don’t like to have to talk about or deal with moral issues like these.
The compromise has been broken, though, with pro-choicers winning two political victories. In 2006, a bill was passed on conscience vote through the Federal Parliament stripping the health minister of his power to ban the importing of abortifacient drugs. This made it legal to import RU486 and other abortion-inducing drugs into Australia. Then, in 2008 the then Premier of Victoria, John Brumby, declared that having anti-abortion laws on the books was ‘out of step with community sentiment’, and moved a bill to strike them out. It passed both houses of the Victorian Parliament on a conscience vote, making abortion legal in all circumstances in Victoria. As a result of these reforms, a number of pro-life politicians have become increasingly vocal on the issue, which is unusual (although consistent with a recent rise of religious evangelism in politics, previously unknown in Australia). Every poll conducted on the topic, however, suggests that Australians, even in conservative states like Queensland and Western Australia, are mostly pro-choice.
Which brings us to Brennan and Leach, who were subsequently charged with breaches of the QCC. These are the relevant sections, which have not been changed since the first edition of the code was written in 1899:
224 Attempts to procure abortion
Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, 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, and is liable to imprisonment for 14 years.
225 The like by women with child
Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.
226 Supplying drugs or instruments to procure abortion
Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.
These sections are subject to the defence of medical necessity, like the rest of the code.
The case created an immediate push by pro-choice groups to have the laws struck down. At the time, there was a Labor Government in Queensland led by Premier Anna Bligh. A Government MP, Bonnie Barry, claimed that she tried to move a bill overturning the laws but was blocked by the Premier, who said that it would a vote-loser. The laws were clarified to make it clear that doctors would still be indemnified if they performed abortions for medical reasons, but otherwise abortion without medical reason would remain a crime and the prosecution of Brennan and Leach would continue. As a result, all Queensland hospitals have since suspended abortion and started referring patients to hospitals in New South Wales. For the first time in 24 years, abortion is now a crime again in an Australian jurisdiction. This has caused a great deal of indignation on behalf of progressives, particularly as Anna Bligh had a reputation when she first became Premier of being both a progressive and a campaigner on women’s issues (and she is also, ironically, the first female Premier of Queensland).
The trial began yesterday in the Cairns district court, and while it is still a fairly low-key event it has been gaining more and more attention from commentators in the media. Both defendants have pleaded not guilty:
Couple accused of procuring abortion not ready for child, court hears
A MAN who allegedly gave his pregnant girlfriend foreign drugs to cause her to miscarry told police he did so because he wasn't able to give his child "the best", a court has heard.
Sergie Brennan, 22, this morning pleaded not guilty in the Cairns District Court to one charge of supplying drugs to his girlfriend, 21-year-old Tegan Simone Leach.
Ms Leach pleaded not guilty to one charge of attempting to procure her own miscarriage.
The landmark trial, the first relating to abortion in Queensland in 24 years, began this morning in Cairns, with pro-choice demonstrators continuing a vigil outside the courthouse.
A police interview with Mr Brennan - of which a recording was played to the court - showed the young man telling officers that his girlfriend had taken a home pregnancy test and discovered that she was pregnant.
"I wanted to give my kid the best," Mr Brennan told the police.
"At that moment I felt I couldn't give my kid the best."
Mr Brennan said he and Ms Leach had then discussed it and decided to have an abortion.
He said he spoke to his relatives in his native Ukraine and they sent drugs that Ms Leach could take to procure her own abortion.
The court heard Mr Brennan believed the drugs were legal because they had made it through Australian customs.
In police interviews on March 30, Ms Leach said she had decided to have an abortion in late 2008 after learning she was pregnant because she did not feel ready to have a baby.
It is alleged that Ms Leach attempted to procure her own miscarriage between November 1, 2008, and January 1, 2009.
The matter came to the attention of police when officers were searching the couple's Cairns home on another matter in February 2009, the court was told.
Prosecutor Michael Byrne said officers found empty blister packets, which the couple identified as the packaging of abortion drugs.
Mr Byrne said the case was based on a simple set of facts - that Brennan illegally provided Leach with the abortion drugs RU486 and Misoprostol and she took them knowingly.
Under Queensland law procuring an abortion was illegal unless the pregnancy posed a threat to the woman's life or her physical or mental health, Mr Byrne said.
"There is no evidence of a necessity that an abortion needed to be carried out to preserve the life or the physical or mental health of Tegan Leach,'' he said.
The matter is being heard before a panel of 12 jurors, comprised of 8 women and four men.
Two women initially selected as jurors were excused from the trial after stating they did not believe they could be impartial.
The trial continues this afternoon before Judge Bill Everson.
link
I have a long list of questions, but that is enough for now.
