Abortion rights under attack

By Kathy Newnam

A Cairns couple were committed to trial on June 11 on charges brought under the anti-abortion laws in the Queensland criminal code. The charges carry sentences of seven years’ prison for the woman for having an abortion and three years for her male partner for assisting her. The case against the couple rests upon their admission to having used an abortion drug.

The case has highlighted just how thoroughly reactionary the anti-abortion laws are. Section 225 of the criminal code reads: “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.” The criminal codes of NSW, South Australia and Tasmania contain almost identical wording.

The defence lawyers argued that there is no evidence of what the drug was or even if the woman was pregnant at the time of taking the drug. According to the police prosecution, this is not relevant according to the law. The facts blow out of the water the Queensland Labor government’s claim that the case is related to the use of an abortion drug that was obtained from overseas. The government continues to try to distract from the anti-abortion nature of the case by claiming that the drug was “smuggled” into the country — despite the fact that it is not a banned drug and that it was brought in through customs. The only relevance of the way in which the abortion was done is the fact that no local doctor was involved. This gave the police the confidence to initiate and pursue the charges.

The prosecution of the Cairns couple is a highly calculated move designed to create a new legal precedent to set back women’s access to abortion. During the committal hearing on September 3, the Cairns Magistrates Court heard that the couple’s house was raided by the Cairns Criminal Investigations Branch on February 1, at which time the couple told the police about the abortion. Charges against them were not laid until March 30. The police have thus seen an opportunity to activate the anti-abortion laws — by targeting an isolated, working-class couple in regional Cairns (who were not even aware that abortion is still subject to criminal prosecution) without the social networks and resources that would be brought into play if a doctor was charged.

The state government’s campaign of distraction has been backed up by sensationalism and misreporting in the corporate media. One example was an article in the September 18 Melbourne Age in which Cosima Marriner wrote that “perhaps one of the saddest aspects of the Cairns abortion case is that Ms Leach would not be facing jail if she, like many other Australian women do every year, had gone to a doctor to perform the abortion … it’s not as if terminations aren’t available in Queensland hospitals and clinics”. This completely ignores the financial barriers: abortions in Cairns cost upward of $800. It ignores the lack of information available to women about abortion services and the social stigma surrounding abortion, which is particularly hard on young women in rural and regional areas. But the most important fact is that under the criminal code any woman who has an abortion — seeks to “procure her own miscarriage” — and anyone who assists her can be charged and prosecuted.

More than 14,000 abortions take place in Queensland each year, and there has not been a prosecution under the anti-abortion laws since two doctors were charged in 1986. In that case, the doctors were found not guilty. The case created a precedent for legal abortion when there is a risk to a woman’s life or mental health. However, the court finding was explicitly against “abortion on demand”. It is only the widespread public support for abortion rights that has restrained the police from enforcing the laws — a situation that means that many people are not even aware that abortion is still illegal.

Role of the police

There is also a widespread misconception, even among abortion rights campaigners, that access to abortion beyond what is “lawful” is based on the “good will” of the police who “turn a blind eye” to the abortion clinics. This denies the historical role and interests of the police in maintaining the illegality of abortion. The police have been on the front line of attacks against abortion access, from the clinic raids in the 1980s to the long history of attacks on pro-choice protests. There was also widespread police corruption associated with the backyard abortion industry before the abortion rights movement won the access that exists today. The police are always pushing for increased powers — and the ability to enforce the anti-abortion laws would mean a marked increase in their power over a large proportion of the population; one in three Queensland women will have an abortion at some time in their lives.

The 1986 court ruling, and similar rulings in Victoria and NSW in the 1980s, were the product of massive political pressure brought to bear by the abortion rights movement. It is not just the legal precedents that have held back prosecution. The police have not enforced the laws since 1986 because they couldn’t. To do so would have risked massive protests that could turn things in favour of women’s rights, which is precisely what led to the partial victory of the 1986 case.

But that is the problem with a partial victory. Capitalist governments always give as small concessions as they can get away with, to quiet the demands of the movement. The 1986 ruling found the doctors not guilty and gave grounds for “lawful” abortion, but also saved the laws. It kept them on the books for use at a later date, which is what has happened now. The police have made a calculated political judgment: they think they can get away with the Cairns prosecution to create a new legal precedent.

Bligh distraction campaign

The once-was-a-feminist-campaigner, Labor Premier Anna Bligh, is only too aware of this history, which is why her government has worked hard not only to distort the facts but also to distract attention from, and add to the isolation of the case. On the day before the committal hearing began in Cairns, the government introduced legislation to the parliament to extend the legal defence for doctors who perform an abortion in the case of a risk to a woman’s life to include medical as well as surgical abortion. Much of the media reporting of the changes implied that they would prevent a situation like the one in Cairns arising again, but this is completely untrue. They will do nothing to broaden women’s legal access to abortion.

Bligh’s move was ostensibly in response to a ban by doctors on carrying out medical abortions in the state’s public hospitals. The ban has still not been lifted; doctors are continuing to restrict women’s access to abortion based on concern for their medical practices and the say-so of the medical insurance companies. Prior to this ban, limited abortion services were available in public hospitals when a woman’s life was at risk by continuing a pregnancy. What the widespread media attention to the ban has not covered is the fact that any woman who requires an abortion after 15 weeks and does not meet the strict criteria of the public hospitals has to travel to Victoria because there are no clinics in Queensland that offer abortions after 15 weeks.

Bligh continues to claim that her government will not seek to repeal the anti-abortion laws because such legislation would not have enough support in parliament. Even if this claim were true, it rests upon the assumption that the ALP would allow a conscience vote on the issue. The conscience vote on abortion law (which is enshrined in ALP policy) is thoroughly anti-woman. Capitalist politicians may be entitled to their quaint religious views that instruct their “consciences”, but they should not be entitled to impose those views on the mass of women via the law. Abortion access is not a question of “conscience”; it is an issue of women’s democratic right to be able to control their own bodies.

The Bligh government is doing whatever it can to isolate the case of the Cairns couple, which is all the more reason that supporters of abortion rights need to speak out and join the growing campaign for the dropping of the charges and repeal of the anti-abortion laws. The next abortion rights rally will be held in Brisbane on November 21, at 11am in Queens Park (on the corner George and Elizabeth streets). For more information visit the Brisbane Pro-Choice Action Collective web site. Drop the abortion charges! Repeal all anti-abortion laws! Free, safe, accessible abortion on demand!