Making Law and Making Social Change

In October last year, Queensland put a woman and her partner on trial for a crime that should not be on the statute books. Tegan Leach and Sergie Brennan were charged under sections 225 and 226 of the Queensland Criminal Code 1899 because Brennan asked his sister overseas to import misoprostol, a drug used for abortions in a similar way to RU486. Police found empty blister packs when they searched the house for an unrelated reason and Leach was accused of taking the misprostol whilst pregnant.

Sections 225 and 226 of the Queensland Criminal Code prohibit a woman procuring her own miscarriage as well as prohibiting a person from supplying drugs to procure an abortion. The maximum sentences are seven and three years respectively. Together with section 224, which targets doctors who perform abortions, these sections are classified as “Offences against morality.” Section 282 allows exceptions only to save the life of the woman or when the procedure is in the patient’s benefit. Women in Queensland currently do not have access to abortions in cases of foetal abnormality or because of an unwanted pregnancy.

Leach and Brennan were acquitted. The archaic language of the 101-year old law was ultimately the undoing of the prosecution’s case. The section of the Code refers to the administration of a “noxious thing” for the purposes of procuring the abortion. During the trial, expert evidence confirmed that, rather than being “noxious”, misoprostol is on the World Health Organisation (WHO) list of essential drugs.

The judge gave clear directions to the jury that “noxious” meant “injurious or harmful” to the woman. The jury was told that they would have to be sure “beyond reasonable doubt” that the drugs were “noxious” to return a verdict of guilty. The couple was acquitted.

An informed jury was unable to make a finding of guilt in the case and thus it seems that this verdict might offer protection to women from further prosecutions. The decision seems to make similar prosecutions in the future very difficult, given the judge’s directions to the jury.

Nonetheless, these provisions in the Queensland Criminal Code still need to be removed.

Their existence creates legal uncertainty not just for women but also for their doctors. Doctors are worried about being prosecuted; they are also concerned about whether their insurance will cover such treatments. The women of Queensland are now acutely aware that their reproductive decisions could become the subject of a painfully public criminal prosecution.

The women of Queensland are now acutely aware that their reproductive decisions could become the subject of a painfully public criminal prosecution.

Both factors greatly threaten the confidential relationship between a woman and her doctor, which should be comfortable yet private.

It is foolish, however, to think that debates on abortion can be won on arguments about practicality or privacy. Abortion inspires moralism and vitriol: Leach and Brennan even had a Molotov cocktail flung at their apartment.

Nonetheless, the ordinary people of Queensland are well ahead of both their laws and lawmakers. Polls suggesting that between 64 and 79 per cent of Queenslanders support law reform on abortion. In Queensland, it is the formal policy of the Queensland ALP that these three provisions should be repealed, with MPs entitled to a conscience vote on the issue.

Yet this has not been implemented. Even though the Premier says she is pro-choice, she might worry that a reform bill would not be supported on the parliamentary floor.

So how does reform happen? How to we move beyond these outdated laws and the political timidity that protects them? What is the role of rights in this debate?

Abortion as a health issue

Successful reform entails a formal recognition that, regardless of political or spiritual belief, abortion is a health issue.

Successful reform entails a formal recognition that, regardless of political or spiritual belief, abortion is a health issue. Each year, an estimated 20 million women undergo backyard abortions, with up to 68,000 women dying as a result. According to the WHO, five million women will suffer temporary or permanent disability as a consequence of these abortions, with 1.7 million developing secondary infertility. Unsafe abortion accounts for 13 per cent of maternal deaths.

The vast majority of unsafe abortions happen in countries where abortion is illegal. For many women, childcare is a burden they are unable to bear socially and financially, so much so that some are willing to risk their lives to end their pregnancies. If these procedures are going to occur regardless of the law, they should be performed safely.

Arguably, this is an obligation under international law. According to Article 25 of the UN Declaration of Human Rights, everyone has the right to adequate medical care. A trial like the one in Cairns discourages women from consulting their doctor about their options and therefore breaches their human rights.

The Victorian experience

Until 2008, the Crimes Act (Vic) contained provisions relating to abortion very similar to those in Queensland. Terminations were performed under the 1969 Menhennitt ruling, which permitted abortion if it was necessary to protect the life or health of the woman. Despite calls for reform, the Victorian Parliament permitted the offences to remain on the statute book, unchanged, since 1865.

The Victorian Law Reform Commission drafted a report that focused on the importance of removing the provisions from the Crimes Act, recommending that the procedure should come under health legislation and regulation. As such, the Abortion Law Reform Act (2008) removed all the provisions from the Crimes Act relating to abortion. It details who can perform abortions (a medical practitioner with a nurse assisting) and how they can occur (both medically and surgically). It also establishes procedures and safeguards in situations where the pregnancy is beyond 24 weeks, including consultation with another doctor and a consideration of all the relevant circumstances.

As a result, all Victorian women are able to access safe and private healthcare, with an understanding of all the options available to them. Decisions about a woman’s fertility are left to her, the doctor and anyone else she chooses to include. Abortion is a health issue and the state has no role to play. It is a very good model for reform in Queensland.

The politics of reform, the problem with rights

The process of reform in Victoria was not, of course, smooth sailing. But success was possible because of political leadership, not only from the Premier but from Candy Broad the upper house MP who sponsored the private members bill. More importantly, reform was the product of years of grassroots campaigning on the issue, which resulted in widespread community support for the new laws.

The Act was subject to a conscience vote and time was given for sensible policy debate. A range of views were put, often passionately, and many submissions were filed. Victorians were able to participate in the debate, thus ensuring the reforms accountable and in line with prevailing community standards. The law was allowed to catch up with the polity.

Obviously, law reform should not just be about populism or opinion polls. As such, rights play an important role in empowering citizens. Indeed, for those concerned about rights, the experience of abortion law reform neatly demonstrates how understandings of human rights law are not necessarily universal or natural but rather often changeable and unfixed.

the experience of abortion law reform neatly demonstrates how understandings of human rights law are not necessarily universal or natural but rather often changeable and unfixed.

In Victoria, the conservative activist Rita Joseph railed against the decriminalisation of abortion, describing it as “an attack on laws that protect unborn children [that] contravenes the 1948 Universal Declaration of Human Rights, which recognised the child before birth as having human rights to be protected by the rule of law.” Joseph argued that the decriminalisation of abortion under Victorian law amounted to an inadmissible limitation on the right to life set out under the International Covenant on Civil and Political Rights (ICCPR). She has published an entire book setting out her thesis: Human Rights and the Unborn Child (2009).
But this is an astonishing legal fiction. A submission about decriminalisation by the Castan Centre for Human Rights noted that Joseph’s interpretation of the ICCPR was “not apparent from its wording and not supported by the Human Rights Committee’s findings and conclusions.”

Far from recognising the rights of the unborn, the drafters of the ICCPR and the Universal Declaration of Human Rights actually rejected proposals to extend international law in this manner. As such, “the jurisprudence of international human rights law has not followed an approach of subordinating the rights of pregnant women in favour of their unborn children.” Joseph’s interpretation was in fact “contrary to the wording and jurisprudence of other key international human rights treaties which, like the ICCPR, operate to uphold the right of women to control their own fertility and thereby enjoy a range of human rights.”

Using the concept of rights to understand the politics of abortion law reform

The language of rights is very powerful but without an examination of its precise meaning we can run into trouble. On one level, the fact that understandings of rights can change over time provides a certain flexibility to accommodate evolving social attitudes. But it also creates vulnerability to political whims and aggressive lobbying. As such, critical thinkers need to analyse the justification for any given interpretation.

A danger of using rights to understand abortion is that the approach de-contextualises the woman, makes her a legal subject and ignores her social context. People like Rita Joseph succeed in drawing us into a debate about balancing the rights of a woman with the “rights” of the unborn.

But such balancing acts are based on a false understanding of what gives rights legitimacy. The criminalisation of abortion represents an attempt by the state and religious organisations to assert control over women’s fertility, health and lives. It promotes the modern nuclear family as paramount and normal, and suggests that anything that subverts the family (such as gay marriage, abortion or same sex adoption) is abnormal and wrong.

If we say that the unborn have rights that are as legitimate as those of women, we give a licence to the state to dictate the terms of people’s personal lives. But human rights are not intended to facilitate an intrusion upon women’s privacy but rather to guard against the state making such arbitrary interventions.

More fundamentally, any analysis of abortion has to be performed with a clear understanding of women’s oppression. Up until the seventies, botched abortion was the leading cause of death for women of reproductive age, accounting for approximately a quarter of those mortalities.

The decriminalisation of abortion has therefore been a step forward. It is, however, merely one step in a long and ongoing journey to improve the rights of women in a wide range of areas. There are still many areas of public and private life where women experience discrimination and oppression.

Since 1990, the gender wage gap has hovered between 15 and 17 per cent, while over the last four years it has actually increased to 17.3 per cent in 2010. The safety net that is designed to protect women is also failing: 62 per cent of people seeking immediate accommodation from homeless shelters are turned away. When women earn less and have significantly lower superannuation than men, they have less choice about their lifestyles, less financial independence and less freedom. This makes them very vulnerable to falling through the cracks of society — and when they do, there is little to protect them. Thus, to be meaningful and useful for the purpose of achieving social justice, rights need to be part of a campaign for economic and social equality.

Unfortunately for Leach and Brennan, they became cannon fodder in this muddled and hotly-contested discussion. The controversy has the potential to set back education and understanding about women’s health issues. If such trials are permitted to go ahead without an understanding that change is necessary, it will be a sad future for Queenslanders.

Hopefully, what we will see instead is reform of these outdated abortion laws. But until then, we need to use the concept of rights to campaign for substantive, practical commitment to change. We must ensure that the language of human rights is devoted to protecting women, not controlling them. Without such a strategy, the history and legitimacy of rights is itself called into question.

Elizabeth O’Shea is a lawyer in Melbourne working on public interest litigation. She has worked at the International Labour Organisation in Geneva, and has also worked in Louisiana, USA with a capital defence office working with indigent prisoners on death row. All views are her own and do not necessarily represent those of her employer.