The outcome of a trial against a Cairns couple for procuring an abortion has turned the tables on the Department of Public Prosecutions and the Queensland government.
The Cairns jury swiftly returned a “not guilty” verdict on October 14 and the question now being asked is “what real crimes are exposed by this case?”
For many, the real crime is the fact that the anti-abortion laws from 1899 have not been repealed.
Judge William Everson at one stage in the trial referred to the archaic nature of the laws and defence barrister Kevin McCreanor explained in his closing statement “like most things designed by mankind, the law is not perfect”.
McCreanor said the laws under which the Cairns couple was charged began in 1861 in England and were enacted in 1899 in Queensland. Safe terminations of pregnancy by medical means were unknown at the time, he explained.
He said politicians have not changed the law in 111 years and now the state government had persisted in prosecuting this young couple.
But he said the state government did not control the courts. It would be the combined wisdom of 12 women and men of the jury that would determine the couple’s fate. And they did. They found that the couple was not guilty of a crime for making this choice.
A real crime is that access to abortion drug RU486, which is listed on the World Health Organisation’s list of essential medicines, was severely restricted in Australia for 10 years while many other countries made it available.
In 1996, the government of former prime minister John Howard, in exchange for Senator Brian Harradine’s vote to privatise Telstra, removed RU486 from Australia’s standard drug approval process. The use or import of RU486 was prohibited without the personal permission of the federal health minister.
It took 10 years and concerted campaigning until, in February 2006, a private members’ bill across party lines in the federal parliament overturned the Harradine amendment.
Doctors in Australia could now apply to the Therapeutic Goods Administration for approval to prescribe and supply RU486.
But no Australian drug company has tried to market RU486 in Australia.
Women seeking to terminate pregnancies have been denied access to safe drugs that are used around the world.
It is a crime that, depending on where a woman lives in Australia, her choices regarding both medical and surgical termination of pregnancy varies widely. If RU486 were available nationally, it would help reduce unequal access to abortion services for Australian women — especially rural women.
By criminalising drugs and services that only women need to access, the Queensland government upholds the idea implied by the 19th century law makers, all of whom were men, that women must be protected from themselves.
Prosecutor Michael Byrne used similar arguments in his closing statement in the Cairns trial. He said the law was required because some people needed to be protected from themselves.
Byrne compared the crime of taking the abortion drug and its potential complications to someone shooting a gun in a crowded room — even if it did no harm, it is still a crime.
The courtroom public gallery groaned at this.
It was an analogy that tried to criminalise women who make the decision to not continue with a pregnancy without “authorisation, justification or excuse”, as outlined in the criminal code. Byrne described the young woman’s decision as a “lifestyle choice”.
The prosecution’s distinction between illegal “lifestyle” and legal “life threatened” abortion drew heavily on conservative views about women’s sexuality and reproductive rights. But the right of a woman to control her own fertility is not a “lifestyle” choice: it is a fundamental human right.
Restrictions on abortion, such as those in the Queensland criminal code, can easily become forms of intimidation.
Anti-abortion laws make women’s choices more difficult to realise. They are in direct opposition to the idea that women can be trusted to make autonomous decisions about what happens to their own bodies. They say the state knows better about what should happen to a woman’s body than she does.
This is why these laws should now be repealed. Women's choices about what happens to their own bodies must be respected if women's equality and autonomy is to be respected.
In fact, the real crimes in this case are too many to list. They also include the nightmare that the young couple has endured from when they were charged in April 2008 until their acquittal on October 14. They include the fact that a Queensland government Taskforce on Women and the Criminal Code recommended in 2000 that these laws be repealed and the government took no action for the past 10 years.
One of the disappointing aspects of the trial was that there was little cross-examination of the police witnesses. No one asked who decided, between discovery of the evidence of the empty blister packs by a police search in early February 2008 and the interview of the couple on March 30, to proceed with anti-abortion charges in April 2008.
A deciding factor in the verdict was Everson’s direction to the jury about the meaning of “noxious”. Under the Queensland Criminal Code, it is an offence for a woman to “administer to herself any poison or noxious thing” to cause a miscarriage.
Byrne had argued for a more old-fashioned definition of “noxious” as “injurious, hurtful, harmful or unwholesome” and that a noxious substance would be intended to cause the expulsion of the fetus from the woman’s body and change the state of the woman’s body. In contrast, the judge defined “noxious” as “harmful or injurious to health or physical well-being”, but said that it must be “noxious” to the woman, without reference to a fetus that may or may not be present.
The jury had to decide if the prosecution had proved beyond reasonable doubt that the drugs taken by the young woman were harmful or injurious to her health or physical well-being. The judge cited the evidence of an expert witness Professor Nicholas Fisk, who had stated that RU486 was not harmful to the person taking it.
The dust is settling from the Cairns trial and the lay of the land is a little clearer for all to see.
The Queensland government has avoided its responsibility for repealing the anti-abortion sections of the state’s crimes act. It said the Cairns case was not about legal abortion and tried to mask the real issues by lying about drug importation and unsafe medications.
The government says it can’t win support for repeal on the floor of parliament. But a jury drawn from a small regional city in the far north of the state saw through these lies, as do many more Queenslanders.
A protest outside the Cairns courthouse, where a vigil tent had been set up, provided a place for many in Cairns to show their support for a woman’s right to choose. And many hundreds did.
The community campaign bodies that have been active over the past 18 months in Queensland — Pro Choice Cairns, Pro Choice Queensland and Pro Choice Action Collective in Brisbane — have all vowed to continue the campaign to completely decriminalise abortion.