Why the Cairns abortion case was won


Queensland’s anti-abortion laws were dealt a sharp blow on October 14 when a Cairns couple were acquitted on charges brought under those laws. For almost two years, the political and legal establishment had tried to have the couple condemned, yet it took the 12 working people on the jury less than an hour to conclude they had no case to answer.

Not only does this victory set a legal precedent, but perhaps just as importantly it sends a clear social message: abortion is OK. A young couple decided they wanted an abortion because they were not ready to have a child – a decision made by thousands of women every year. The verdict affirmed the widespread opinion in society that abortion is simply a fact of life.

There was a strong presence of abortion rights activists during the trial. Contingents had travelled from Brisbane, Sydney and New Zealand to join in the local demonstration against the injustice of people facing trial for abortion.

A national day of action against the Cairns abortion case was held on the Saturday before the trial began. Rallies were
held in Brisbane, Sydney, Melbourne, Perth and Adelaide. Photo of Brisbane rally by Owain Jones.

Throughout the two days of the trial, the private decisions of the couple were dragged through the court in front of lawyers and other complete strangers, paraded in front of the world in the media. Every move or gesture the couple made while they sat in the courtroom was reported in the national media.

The prosecution argued that the abortion was unsafe because the woman had not had medical supervision. This paternalistic argument was raised over and again – despite the prosecution’s own expert witness testifying just how safe and effective the abortion drugs are. He noted that both Mifepristone (RU486) and Misoprostol are listed as essential medicines by the World Health Organisation. The number of serious complications caused by the drugs is the same as in a spontaneous miscarriage – about 1 in 500.

The prosecution argued that abortion is unlawful unless there is authorisation, justification or excuse. In summing up, the prosecution derisively dismissed the couple’s decision to have an abortion as a “lifestyle choice”. Abortion was being put on trial.

Important concession

Today is fury

A poem from the court room

Cops, lawyers,
judges and other strangers.
Politely decide
what we can do
with our bodies.
Politely discuss
our rights,
our lives.
And the media claim ‘balance’.

We are supposed
to sit quietly.
No contempt allowed-
accept your lot,
accept your place.

Time to tear down
the polite facade
To say no more.
But contempt is not enough
for this injustice.
Today is fury
And today we turn
the fury to action.

But the prosecution also made an important legal concession – a product of the strong support for the couple and opposition to the case. The prosecution conceded that if it could not be proven beyond reasonable doubt that the abortion drugs were “noxious”, then the couple would have to be acquitted. This was further clarified by the judge, following the defence arguments, that it would have to be “noxious” to the woman, not to the foetus, because according to the law it didn’t matter if she was pregnant at the time.

This was a very significant concession, because the prosecution’s expert witness had testified that the abortion drugs are not noxious. It marked a shift in the state’s case; in the committal hearing in September 2009, the prosecution had argued that it didn’t matter whether the drug was noxious because, according to the law, it is a crime to use “any means whatsoever” to procure a miscarriage.

Why this inconsistency? Why would the state make a different case in the committal hearing, drag the couple through another year of trauma, and then make such a significant concession in the trial?

The single most important thing to realise is that the political and legal establishment always tries to find a way out that doesn’t acknowledge the role of public political pressure. When there is enough pressure on the system, enough protest, enough anger that they are forced to act, then they will do whatever they can to ensure that the people do not know that the movement had an impact. That is what has happened in this case.

Pressures on system

The political-legal establishment would have known only too well that if there was a guilty verdict there would be intense anger and protest. There are a lot of interconnected aspects to the pressure that was on the system.

The first is that the couple stayed strong. They did not try to change their case. They did not say, for example, that she needed the abortion because of mental health. They stuck with the truth without shame. And they were totally dignified.

Secondly, the campaign of public protest was a grassroots campaign that challenged the lies and informed people about the case. There were five protest rallies in Brisbane from June 2009 and a nationwide campaign that culminated in a national day of action before the trial that was the strongest show of public support for abortion rights in over a decade.

The third aspect was the strong connection between the grassroots campaign and the view in society about abortion. While the protest rallies were relatively small, they reflected a broad cross-section of opposition. That is what had the establishment worried. They knew that breadth could easily translate into larger and larger numbers because there is widespread support for abortion, and there was strong and widespread anger about the case.

It is these factors that explain the legal concession the state made in the trial and the defeat of the attack.

Media bigotry

While the outcome of the case confirms the widespread view in society that abortion is OK, the media try to shift the attention, to create controversy. The one anti-abortion bigot who was in Cairns got equal time in most media reports with the dozens and dozens of abortion rights supporters. The media fan the flames of bigotry. But it is not a legitimate debate. The fact is that abortion on demand is socially accepted; it is a fact of life. The attempts to restrict access to abortion are about social control of women in a highly sexist society. That is why the anti-abortion arguments are given a disproportionate voice in the political establishment, and it is also why our fight will have to continue.

Abortion is not unpopular. It is made into a taboo subject only because the sexist, misogynist political establishment knows too well that when women talk about abortion, it breaks down the mystification and the stigma. Public campaigning breaks that down too.

We have to turn the tables. It is the anti-abortionists who should be stigmatised. They are the people who would condemn women to dangerous backyard abortion. They are the people who support the bans on abortion throughout the world that condemn 78,000 women to death every year.

No saviours

Adelaide: part of the pre-trial national day of protest. Photo by Ari Reid.

The support for abortion rights must be mobilised and turned into sustained political pressure for repeal of the anti-abortion laws. There will be no saviours in this fight.

The campaign has to resist the pressure to take the path of least resistance, and there will always be those who try to steer us on this path. At the press conference on the first morning of the Cairns trial, this is what ALP ex-MP Bonny Barry tried to do: to focus attention on waiting for an ALP MP to put a private member’s bill. She “apologised” for not putting a bill when she was in parliament. She claimed the media stage by virtue of what she had not done. She later defended current MPs’ inaction to repeal the laws: she said it is very difficult for them. Difficult like facing seven years in jail for abortion? Difficult like having your house fire-bombed, as the Cairns couple did after the Cairns Post published their address in April 2009?! It might well be “difficult” to go against the ALP machine – but only if you put your career and your privileges before women.

In any case, the campaign should not put its hopes in a private member’s bill. That takes pressure off the government and allows it to hide behind the “conscience vote”. Refusing women the right to control their own bodies is not about “conscience”; it’s about bigotry, misogyny and social control.

The grassroots movement must continue to voice the interests of women. It can’t be left up to lobby groups that are always too willing to concede ground. It’s great, for example, that GetUp! has come on board the campaign, but it is also very worrying that its petition called for abortion to be regulated in the health code. This is how the “reform” process in other states has ended up bringing in new restrictions on abortion: for example, upper time limits and parental consent laws. Abortion should not be treated any differently than any other health issue. Appendicectomy is not specifically regulated in the health code, heart surgery is not specifically regulated in the health code and abortion should not be specifically regulated in the health code.

No one has the right to compromise on behalf of women. All restrictions on abortion access disproportionately impact on women who are already at a disadvantage. It is always the middle class reformists who are willing to compromise on behalf of working women. The grassroots movement must continue to voice the demand for free, safe, accessible abortion on demand.

The politically independent campaign that voices women’s demands must be strengthened – a campaign that has no interests to protect other than those of women and our right to abortion. We have to continue to build confidence in our own power, not relying on those in the establishment to act for us. We have to act for ourselves collectively through building the movement, through speaking out and mobilising the support that exists for the struggle. That’s what defeated the attack on abortion rights in the Cairns case.

[The Brisbane Pro-Choice Action Collective will hold a rally to call for the immediate repeal of all anti-abortion laws and for free, safe, accessible abortion on demand: December 4, 1pm in Brisbane Square (outside Casino). For more information see the Pro-Choice Action Collective website.].

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