Queensland Abortion Trial May Revolve Around One Word: “Noxious”

Robin Marty

Testimony has ended for the Queensland abortion trial.  But while we await a verdict from the jury, the bigger problem is politicians who refuse to address an outdated abortion law.

The Queensland abortion trial is no doubt the most historic reproductive rights case in Australia. A couple is being prosecuted for illegally obtaining an abortion in 2008 via a shipment of RU 486. Now, it appears that trial will revolve around one word in the abortion law, and how it is defined could determine whether Tegan Leach will serve up to seven years in jail for inducing her own miscarriage.

Leach is being prosecuted by the crown for having an abortion for “lifestyle” reasons, rather than medical necessity.  In Queensland, abortions can only be obtained for a threat to a woman’s life or physical or mental health. However, the law specifically refers to how the abortion is performed, and the jury may not feel that the drugs used by Leach qualified.

Via ABC News Australia:

With the jury set to return a verdict tomorrow, it appears the case hangs on the definition of one word in the Queensland abortion law.

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The jury has asked for directions from Judge Everson on the meaning of “noxious.”

Under Queensland law it is an offence for a woman to “administer to herself any poison or noxious thing” to obtain an abortion.

Obstetrics expert Professor Nicholas Fisk from Queensland University presented evidence to the court that the abortion pill RU486 was not injurious to the woman who took it, but was a very efficient abortifacient – a substance which induces an abortion.

Prosecution, however, argued that simply by forcing the body to miscarry, the drugs are in fact “injurious.”

In his final address to the jury, Mr Byrne said abortion drugs are intended to be injurious to a woman’s body.

“These drugs are intended to cause the expulsion of the foetus from the woman’s body,” he said.

“They are intended to change the state of the woman’s body. They are intended in one sense of the word to be injurious, hurtful, harmful and unwholesome.”

Debating the term “injurious” moves the goalposts drastically, especially declaring anything that “changes the state of the women’s body” as such.  In that broad definition, pregnancy itself is “injurious” as it causes pain, bleeding, changing in hormones, loosening of ligaments, raising and lowering of blood pressure and the like.

Still, there is another hurdle that needs to be overcome before the jury can convict Leach and her boyfriend, who is facing three years jail time for giving her the drugs.  No one can prove she even had an abortion.

Via the Australian:

Professor Fisk told the court that after reviewing the evidence, he believed “on balance” that the drugs Ms Leach took induced an early miscarriage.

But under cross-examination by defence barrister Kevin McCreanor, Professor Fisk said it was possible, but unlikely, that Ms Leach was not pregnant. He also said it was possible she had a spontaneous, natural miscarriage.

“I’m not aware of any convincing evidence that she’s had a termination of pregnancy,” Professor Fisk said.

Did Leach in fact have an abortion via RU 486, or did she miscarry on her own with no help from the drug?  Was she even in fact pregnant in the first place? She never even had her pregnancy confirmed by medical professionals.  If she did take the drugs, were they in fact a “poison or noxious thing” as the law states, or does the fact that RU486 is low risk and causes so few complications mean that the law doesn’t apply? 

A jury is meeting to decide all of these questions, and the verdict should be released soon.  However, we will still be left with the bigger question — how and when will Queensland address the flaws in their 100 year old abortion law?

Sadly, the answer to that appears to be “no time soon.”  The Sydney Morning Herald reports:

Police charged them under the archaic Queensland Crimes Act, that still sees abortion as a crime because the state has not had the courage to reform it.

Many politicians in New South Wales and Queensland see the continued inclusion of abortion in their crimes acts as a dormant issue. Doctors get around the law by finding the women seeking abortions are doing so to prevent physical or mental harm in line with court rulings made last century.

They say why change the law when its not necessary? What they mean is they want to avoid the noisy minority who oppose abortion making their lives difficult. When Victoria changed the law in 2008 MPs were aggressively targeted by anti-abortion campaigners. They were sent graphic pictures of aborted foetuses.  Some endured threats and targeted, personal, campaigning.

The anti-abortion lobby is loud, it is organised and often it is downright offensive. In 2009, a lead Victorian campaigner, Pastor Danny Nalliah of Catch the Fire Ministries, laid the blame for the horrific Black Saturday bushfires at the doorstep of the Victorian parliament.

The fires were God’s punishment for abortion law reform, he claimed. How charged and muddied this debate has become.

Queensland Premier Anna Bligh, nominally hailing from Labor’s Left faction, should have the courage to stand up to the bullies who seek to stop politicians doing their job.

She should be leading the charge to reform abortion law and bring it into line with community standards and expectations. Shame on her that she has taken the easy out of hiding behind the claim that this case is about drugs.

And of course, the anti-choice advocates are using the law to claim it is for the “protection” of doctors who don’t want to perform abortions and women who are being coerced into the procedure.

If Queensland abolishes the current law and adopts the barbaric Victorian model as demanded by abortion activists that would mean a baby can be aborted up to 24 weeks – older than some babies in our hospital nurseries – with no medical justification required, and by the most unspeakably cruel methods.

On the colluding nod of two abortion clinic doctors, the license to kill extends right up to birth, even for entirely healthy but “unwanted” babies of entirely healthy mothers.

In the Victorian model, any doctor who conscientiously objects to facilitating these “on demand” abortions has committed an offence.

Leading human rights lawyer Jesuit Father Frank Brennan called this Victorian legislation “totalitarian”.

The existing Queensland law is an essential defence for doctors and nurses who refuse to co-operate in the unjustifiable killing of babies.

The existing law is also a defence for women who are being pressured into abortion.

They can and do appeal to the fact that “you cannot tell me to do something that is against the law”.

The Queensland case will be precedent-setting however it is decided, as for the first time abortion opponents are seen doing what they really want to be doing: punishing women for not wanting to have a child.  When the verdict comes back, we will learn if that is the jury’s position, but either way, we’ve already discovered that is the position the politicians of Queensland, itself.

News Law and Policy

Anti-Choice Group: End Clinic ‘Bubble Zones’ for Chicago Abortion Patients

Michelle D. Anderson

Chicago officials in October 2009 passed the "bubble zone" ordinance with nearly two-thirds of the city aldermen in support.

An anti-choice group has announced plans to file a lawsuit and launch a public protest over Chicago’s nearly seven-year-old “bubble zone” ordinance for patients seeking care at local abortion clinics.

The Pro-Life Action League, an anti-choice group based in Chicago, announced on its website that its lawyers at the Thomas More Society would file the lawsuit this week.

City officials in October 2009 passed the ordinance with nearly two-thirds of the city aldermen in support. The law makes it illegal to come within eight feet of someone walking toward an abortion clinic once that person is within 50 feet of the entrance, if the person did not give their consent.

Those found violating the ordinance could be fined up to $500.

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Harassment of people seeking abortion care has been well documented. A 2013 survey from the National Abortion Federation found that 92 percent of providers had a patient entering their facility express personal safety concerns.

The ordinance targets people seeking to pass a leaflet or handbill or engaging in “oral protest, education, or counseling with such other person in the public way.” The regulation bans the use of force, threat of force and physical obstruction to intentionally injure, intimidate or interfere any person entering or leaving any hospital, medical clinic or health-care facility.

The Pro-Life Action League lamented on its website that the law makes it difficult for anti-choice sidewalk counselors “to reach abortion-bound mothers.” The group suggested that lawmakers created the ordinance to create confusion and that police have repeatedly violated counselors’ First Amendment rights.

“Chicago police have been misapplying it from Day One, and it’s caused endless problems for our faithful sidewalk counselors,” the group said.

The League said it would protest and hold a press conference outside of the Planned Parenthood clinic in the city’s Old Town neighborhood.

Julie Lynn, a Planned Parenthood of Illinois spokesperson, told Rewire in an email that the health-care provider is preparing for the protest.

“We plan to have volunteer escorts at the health center to make sure all patients have safe access to the entrance,” Lynn said.

The anti-choice group has suggested that its lawsuit would be successful because of a 2014 U.S. Supreme Court decision that ruled a similar law in Massachusetts unconstitutional.

Pam Sutherland, vice president of public policy and education for Planned Parenthood of Illinois, told the Chicago Tribune back then that the health-care provider expected the city’s bubble zone to be challenged following the 2014 decision.

But in an effort to avoid legal challenges, Chicago city officials had based its bubble zone law on a Colorado law that created an eight-foot no-approach zone within 100 feet of all health-care facilities, according to the Tribune. Sidewalk counselor Leila Hill and others challenged that Colorado law, but the U.S. Supreme Court upheld it in 2000.

News Human Rights

What’s Driving Women’s Skyrocketing Incarceration Rates?

Michelle D. Anderson

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

Local court and law enforcement systems in small counties throughout the United States are increasingly using jails to warehouse underserved Black and Latina women.

The Vera Institute of Justice, a national policy and research organization, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge initiative, released a study last week showing that the number of women in jails based in communities with 250,000 residents or fewer in 2014 had grown 31-fold since 1970, when most county jails lacked a single woman resident.

By comparison, the number of women in jails nationwide had jumped 14-fold since 1970. Historically, jails were designed to hold people not yet convicted of a crime or people serving terms of one year or less, but they are increasingly housing poor women who can’t afford bail.

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

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Overlooked: Women and Jails in an Era of Reform,” calls attention to jail incarceration rates for women in small counties, where rates increased from 79 per 100,000 women to 140 per 100,000 women, compared to large counties, where rates dropped from 76 to 71 per 100,000 women.

The near 50-page report further highlights that families of color, who are already disproportionately affected by economic injustice, poor access to health care, and lack of access to affordable housing, were most negatively affected by the epidemic.

An overwhelming percentage of women in jail, the study showed, were more likely to be survivors of violence and trauma, and have alarming rates of mental illness and substance use problems.

“Overlooked” concluded that jails should be used a last resort to manage women deemed dangerous to others or considered a flight risk.

Elizabeth Swavola, a co-author of “Overlooked” and a senior program associate at the Vera Institute, told Rewire that smaller regions tend to lack resources to address underlying societal factors that often lead women into the jail system.

County officials often draft budgets mainly dedicated to running local jails and law enforcement and can’t or don’t allocate funds for behavioral, employment, and educational programs that could strengthen underserved women and their families.

“Smaller counties become dependent on the jail to deal with the issues,” Swavola said, adding that current trends among women deserves far more inquiry than it has received.

Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute, said in “Overlooked” that the study underscored the need for more data that could contribute to “evidence-based analysis and policymaking.”

“Overlooked” relies on several studies and reports, including a previous Vera Institute study on jail misuse, FBI statistics, and Rewire’s investigation on incarcerated women, which examined addiction, parental rights, and reproductive issues.

“Overlooked” authors highlight the “unique” challenges and disadvantages women face in jails.

Women-specific issues include strained access to menstrual hygiene products, abortion care, and contraceptive care, postpartum separation, and shackling, which can harm the pregnant person and fetus by applying “dangerous levels of pressure, and restriction of circulation and fetal movement.”

And while women are more likely to fare better in pre-trail proceedings and receive low bail amounts, the study authors said they are more likely to leave the jail system in worse condition because they are more economically disadvantaged.

The report noted that 60 percent of women housed in jails lacked full-time employment prior to their arrest compared to 40 percent of men. Nearly half of all single Black and Latina women have zero or negative net wealth, “Overlooked” authors said.

This means that costs associated with their arrest and release—such as nonrefundable fees charged by bail bond companies and electronic monitoring fees incurred by women released on pretrial supervision—coupled with cash bail, can devastate women and their families, trapping them in jail or even leading them back to correctional institutions following their release.

For example, the authors noted that 36 percent of women detained in a pretrial unit in Massachusetts in 2012 were there because they could not afford bail amounts of less than $500.

The “Overlooked” report highlighted that women in jails are more likely to be mothers, usually leading single-parent households and ultimately facing serious threats to their parental rights.

“That stress affects the entire family and community,” Swavola said.

Citing a Corrections Today study focused on Cook County, Illinois, the authors said incarcerated women with children in foster care were less likely to be reunited with their children than non-incarcerated women with children in foster care.

The sexual abuse and mental health issues faced by women in jails often contribute to further trauma, the authors noted, because women are subjected to body searches and supervision from male prison employees.

“Their experience hurts their prospects of recovering from that,” Swavola said.

And the way survivors might respond to perceived sexual threats—by fighting or attempting to escape—can lead to punishment, especially when jail leaders cannot detect or properly respond to trauma, Swavola and her peers said.

The authors recommend jurisdictions develop gender-responsive policies and other solutions that can help keep women out of jails.

In New York City, police take people arrested for certain non-felony offenses to a precinct, where they receive a desk appearance ticket, or DAT, along with instructions “to appear in court at a later date rather than remaining in custody.”

Andrea James, founder of Families for Justice As Healing and a leader within the National Council For Incarcerated and Formerly Incarcerated Women and Girls, said in an interview with Rewire that solutions must go beyond allowing women to escape police custody and return home to communities that are often fragmented, unhealthy, and dangerous.

Underserved women, James said, need access to healing, transformative environments. She cited as an example the Brookview House, which helps women overcome addiction, untreated trauma, and homelessness.

James, who has advocated against the criminalization of drug use and prostitution, as well as the injustices faced by those in poverty, said the problem of jail misuse could benefit from the insight of real experts on the issue: women and girls who have been incarcerated.

These women and youth, she said, could help researchers better understand the “experiences that brought them to the bunk.”

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