Abortion rights in Australia

October 14, 2010 9:12 AM

Tegan Leach, the first Queensland woman to be charged with procuring her own miscarriage, has been acquitted. She faced seven years in prison if found guilty.

Abortion laws and practices in Australia are complex. Criminal matters, including abortion, are left to the states and territories to decide, and as a result abortion on demand is only outright legal in Victoria and the Australian Capital Territory. The other states and territories require some claim of threat to the well-being of the mother or the child if the pregnancy is carried to term. Despite this, 80,000 to 100,000 surgical abortions are performed in Australia every year - in licensed clinics practising within the law.

Medical abortions (those using the drug mifepristone, aka RU486) complicate matters further, as Tegan's case demonstrates. Made legal federally in 2006, pharmaceutical companies operating in Australia are yet to produce or import the drug and very few medical practitioners have been licensed to prescribe it, making it very difficult to access - and the controversy surrounding Tegan's trial has further limited the number of medical practitioners willing to prescribe it.

Activists on both sides are calling for law reform and an end to the confusion.

posted by goo (22 comments total)

In summing up the two-day trial, Judge Everson explained to the jury that Ms Leach could be found guilty regardless of whether she had been pregnant or not when she attempted to procure her own miscarriage.

As a result, he said, the jury must be satisfied beyond reasonable doubt that the drugs Ms Leach took were noxious to her health, rather than to the health of her unborn child.

I don't understand anything in these paragraphs.
posted by rtha at 9:19 AM on October 14, 2010 [1 favorite]

How incredible that this actually went to trial. . . . i.e. that abortion is criminal in many parts of Australia.
posted by bearwife at 9:19 AM on October 14, 2010 [1 favorite]

I don't understand anything in these paragraphs.

Can the first paragraph mean that if she mistakenly thought she was pregnant, she could still be prosecuted for taking the abortion drug?

The second paragraph makes no sense whatsoever.
posted by Harald74 at 9:27 AM on October 14, 2010

Pretty soon Australians may not be able access this post on the Internet because it contradicts what their government's policy on what people should think.
posted by KokuRyu at 9:27 AM on October 14, 2010 [3 favorites]

"In summing up the two-day trial, Judge Everson explained to the jury that Ms Leach could be found guilty regardless of whether she had been pregnant or not when she attempted to procure her own miscarriage.

As a result, he said, the jury must be satisfied beyond reasonable doubt that the drugs Ms Leach took were noxious to her health, rather than to the health of her unborn child."

I don't understand anything in these paragraphs.

In common law countries (such as Australia), factual impossibility is generally not a defense to a charge of an attempted crime. That is, it doesn't matter that the defendant could not have succeeded in his or her plan, so long as the defendant was still trying to commit the crime and believed it was possible. The usual example is pulling the trigger on a gun that the defendant does not realize is unloaded. It's still attempted murder.

Further, in this case, the issue was procuring a miscarriage. A drug that is noxious to the mother can induce a miscarriage even though it is not directly noxious to the fetus.
posted by jedicus at 9:29 AM on October 14, 2010 [3 favorites]

Ah, thank you, jedicus. It makes more sense now. I mean, it doesn't really, but I can parse the text at least!
posted by rtha at 9:31 AM on October 14, 2010

I don't understand anything in these paragraphs.

Can the first paragraph mean that if she mistakenly thought she was pregnant, she could still be prosecuted for taking the abortion drug?

Yes. She was charged with attempting to procure a miscarriage.

But I can't make any sense out of the second paragraph either.

I guess, if the answer to the "why now, after 111 years?" part is that they wanted a test case, then maybe this is a good thing. They had their test case, they lost, it won't happen again.

Fingers crossed.
posted by Ahab at 9:34 AM on October 14, 2010

Reading the first link left me puzzled, because I distinctly got the impression that this couple was charged out of...well, embarrassment.

The police searched their home on an "unrelated" issue that was not disclosed, and found the blister packs for the abortion drug, and so charged the couple with trying to induce an abortion. Since they weren't charged with anything else, I guess the unrelated issue turned out to be nothing.

And so the original search would have looked really bad for the police. Not knowing the law in Australia, I don't know if that would have left the police open to any litigation, but it sure feels like they were up against the wall to charge the couple with something and this is what they came up with.

That the case ever came up to trial just blows my mind. You would think the charges would have been quietly dismissed and the couple allowed to go about their lives before it ever came to all this.
posted by misha at 9:38 AM on October 14, 2010

RU-486ing injustice?
posted by PostIronyIsNotaMyth at 9:45 AM on October 14, 2010 [1 favorite]

That the case ever came up to trial just blows my mind.

If this were the US, I wouldn't be surprised if the prosecutor was working with the ACLU or similar to create a test case to bring to the courts -- if the prosecutor was trying to get the law struck down by enforcing it. I dunno how constitutional law questions like that work in Oz.
posted by ROU_Xenophobe at 10:23 AM on October 14, 2010

If this were the US, I wouldn't be surprised if the prosecutor was working with the ACLU or similar to create a test case to bring to the courts -- if the prosecutor was trying to get the law struck down by enforcing it. I dunno how constitutional law questions like that work in Oz.

I have no idea whether that's how this case came about, but the High Court of Australia does indeed require an actual controversy between parties needing resolution [pdf]. It does not give advisory opinions on the constitutionality of legislation:

In 1921, the High Court was asked to rule on the validity of Part XII of the Judiciary Act 1903 (Cth) which purported to vest advisory opinion jurisdiction in the Court. Section 76 of the Constitution, the Court held, confined its jurisdiction to ‘matters’; there could be no ‘matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court’. While an advisory opinion constituted an exercise of the judicial power (and therefore no attempt had been made to confer a non-judicial function on the Court), it was not a ‘matter’. The provision was, thus, invalid.

This is similar to the US approach. Canada does it differently.
posted by jedicus at 11:10 AM on October 14, 2010

How incredible that this actually went to trial. . . . i.e. that abortion is criminal in many parts of Australia

It is incredible. Although nominally illegal, abortions have been easy to access in Queensland since the right was established by case law in 1986 - you discover you're pregnant, your GP refers you to a clinic, you turn up for the appointment and spend a very short time with a counsellor before it goes ahead, then you go home and make a follow-up appt with the GP. This case has thoroughly upset the status quo that all but the most ardent right-to-lifers have been happy with until now. The whole case and its prosecution are frankly bizarre.
posted by goo at 11:56 AM on October 14, 2010 [2 favorites]

If this were the US, I wouldn't be surprised if the prosecutor was working with the ACLU or similar to create a test case to bring to the courts -- if the prosecutor was trying to get the law struck down by enforcing it. I dunno how constitutional law questions like that work in Oz.

It's a long time since I've had anything to do with Australian law, but it strikes me that the only possible constitutional matter here is the conflict between RU-486 being legal under federal law, but illegal under Queensland state law. My understanding is that if that one had ended up in court, the federal law would have prevailed pretty quickly. But the police chose not to charge on that issue.

Instead they went for the attempting to procure a miscarriage. 2 months after searching the house. At least 50 years after the offense was last prosecuted. Which suggest three things to me (the three are not necessarily mutually exclusive)

a) Pure bastardry. They had some other issues with this couple, they didn't stick, so they went for what they could.

b) Test Case. The had a nice clean case of attempting to procure a miscarriage, using a relatively new and controversial drug, with admissions from all parties concerned. Open and shut, so they laid charges. When it comes down to it, police hate unclear situations. It leads to them being confused about whether to charge or not, it leads to members of the public having rows over other members of the public being charged or not. etc. It's sometimes just better to clear this shit up as soon as possible.

c) Politics. This one's complicated. But Queensland has a Labor party (vaguely left) government, with a (until recently) quietly resurgent Liberal/National Party opposition. The Nats in particular are rural right, with tendencies towards newer forms of religion. They also have a long history of putting large bags of cash (seriously, it's a proven fact) into the hands of the police, and vice versa. So, to cut a long story short, it's not entirely impossible that a senior policeman or two saw an election coming, and saw that they might be better off stroking the backs of the National Party rather than the Labor Party. The charge might have been a result, and an attempt to embarrass Labor before the next election.

I dunno for sure, but one or more of those scenarios might fit.
posted by Ahab at 12:16 PM on October 14, 2010 [2 favorites]

Here's the actual law she was charged with breaking:

CRIMINAL CODE 1899 - SECT 225

225 The like [i.e., abortion and attempts to procure it] 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.

I don't know why the prosecution didn't allege that the drugs were a case of "any other means whatever" rather than a "poison or noxious thing". Perhaps it really was an attempt to clarify the law, but if so it was a bit hard on the woman concerned.
posted by Joe in Australia at 2:45 PM on October 14, 2010 [1 favorite]

Well there you go. The story in The Australian had framed the charge as attempt ("Ms Leach faced seven years in jail for attempting to procure her own miscarriage"), so that's where my analysis went, but evidently she was charged with the completed offense. Thanks for the clarification, Joe in Australia.

I've got to say, though, that's a pretty wild statute. Imagine, for example, a non-pregnant woman who, intending to induce a miscarriage, takes a homeopathic abortifacient. Or imagine such a woman who used a functional abortifacient that has absolutely no effect on the mother and would only affect a fetus. One could be charged with a complete offense even though no one was harmed or even could have been. Very strange. I understand the rationale for denying the defense of factual impossibility in attempt cases, but I don't understand this.
posted by jedicus at 2:58 PM on October 14, 2010

Jedicus wrote: Imagine, for example, a non-pregnant woman who, intending to induce a miscarriage, takes a homeopathic abortifacient.

I think (but I was never very clear on this) that the common law in Australia and the UK distinguishes between acts that are functionally impossible (homeopathic abortifacients) and acts that are situationally impossible (taking a real abortifacient when you're not pregnant, a thief who reaches into an empty purse). Functionally impossible acts can't be the basis of charges. Or so I was lead to believe, but the case law confused me.
posted by Joe in Australia at 6:41 PM on October 14, 2010

I think (but I was never very clear on this) that the common law in Australia and the UK distinguishes between acts that are functionally impossible (homeopathic abortifacients) and acts that are situationally impossible (taking a real abortifacient when you're not pregnant, a thief who reaches into an empty purse).

Yeah, I thought about that as I wrote the comment, which is why I included the (admittedly even more hypothetical) example of the 'perfect' abortifacient which could not harm a woman who wasn't pregnant.
posted by jedicus at 7:10 PM on October 14, 2010

I dunno how constitutional law questions like that work in Oz.

This has nothing to do with the constitution.

If it did, then yes, the High Court would need a case to hear. Our constitution is just that - it defines the areas of power of the Federal government, with the rest being matters for State governments. It does not define rights individuals have. We have the Common law and several Parliaments for that sort of thing (which is why our more conservative states may have laws like this on their books).

That said, the whole case seems, to me, to be the ever-charming Queensland police having it in for someone, and charging them with whatever they could manage.

Bravo to the jury, and the jury system.
posted by pompomtom at 10:55 PM on October 14, 2010

I had really no idea from the news reports how the couple even ended up with a charge in the first place - I'd assumed it wasn't that their doctor had dobbed them in, but couldn't see how else it would happen.

But yeah, Queensland police abusing their power seems about par for the course.

I'm glad they were acquitted. I hope it's the kick in the pants needed to reform that law.
posted by harriet vane at 1:44 AM on October 15, 2010

I just had a beer with someone who reckoned that the police were sent there with a tip-off due to the importation of the drug in question. Which upsets me a bit, but I won't go into it here further than retracting my previous QLD-jacks-being-arseholes suggestion.
posted by pompomtom at 6:49 AM on October 15, 2010

Which then brings us back to the question of who a) knew about this and b) wanted to stop it. I really wouldn't have thought that there was much overlap between a and b, assuming that you wouldn't tell anyone about getting an abortion drug unless you expected them to support that decision.
posted by harriet vane at 6:22 AM on October 26, 2010

Harriet, I know that silly charges can happen like this: police get called to a domestic disturbance or some other reported crime. Whatever they were attending for turns out to be insufficient to lay charges. Their punctilious nature and their empty log books lead them to look around for evidence of any other crime and aha! they charge the person with Failure to Restrain a Goat or something of the sort. This is more likely to happen if the person they're talking to is stroppy or has a bad attitude. In contrast, I've heard of officers saying something like "Gosh, that's an interesting plant. I'll come back in an hour with another officer who's better at identifying plants, and he can tell me what sort of plant it is, if it's still here."
posted by Joe in Australia at 3:42 PM on October 26, 2010