RU486 can lead to jail

Imagine this scenario:

You go to a doctor, receive a prescription and instructions, fill the prescription at a pharmacy, go home and take the medication. A few days, maybe a few weeks later you find yourself being arrested and charged with a criminal offence.

In August 2012 the Therapeutic Goods Administration approved the drug mifepristone (RU486) for use in Australia. The Pharmaceutical Benefits Scheme advisory group is currently considering an application to have it listed on the PBS.

The pharmaceutical company importing and distributing the medication are already offering online training for medical practitioners in prescribing and advising patients on this medication which has been used safely around the world for decades and is on the World Health Organisation's essential medicines list.

After a fight in 2006 to lift restrictions on the importation of mifepristone, its approval by the TGA in 2012 was hailed as a breakthrough in women's health, a solution to lack of access to health services for regional and rural women and true choice for women who would prefer their abortions occur in the privacy of their own homes.

Approval by the TGA and the regulation of pharmaceuticals generally, are Commonwealth matters but given the purpose of the drug is to induce abortion, its use will also be governed by state and territory laws. This is where problems will arise for women and possibly doctors and pharmacists in several jurisdictions.

To date, the limited use of medical abortion in Australia has usually been undertaken with the patient being required to take mifepristone (or an equivalent drug) in front of the dispensing doctor, then come back the next day for misoprostol or its equivalent to complete the process. In regional and rural areas, the travel & accommodation costs combined with women being away from their families overnight mean a take-home option for both medications would be far more practical. This is the model that is being proposed by the distributor. Any area with medical services equipped to deal with spontaneous abortion (miscarriage) can deal with any complications.

But despite this being all perfectly safe on medical grounds, legally it can be like naviagating a minefield.

Unlike most regulation of the medical profession which is done nationally, abortion procedures are regulated by states and territories, with each jurisdiction's laws being quite different. Australian states and territories historically adopted and adapted English statutes for their state laws. Sections of criminal legislation relating to abortion in most states are an adaptation of the Offences Against the Person Act 1861. This Act was enacted at a time when women did not have the vote thus had no say in defining the laws of the land.

It was also a time when there were no pregnancy tests as we know them today. The original UK law determined that abortion was illegal 'whether the woman is pregnant or not' as a medical diagnosis of pregnancy was usually made upon 'quickening' - the physical sensation of a foetus moving in the uterus which is usually not felt until about halfway through the pregnancy. Women would suspect pregnancy much earlier however and seek abortions. Thus a combination of desperate women unsure of their biology and unscrupulous profiteers meant that invasive procedures could be carried out on women needlessly. Many died from shock, infection or haemorrhage. The laws of this era were designed to protect women from this fate and in a modern world with accurate pregnancy tests, modern medical procedures and skilled doctors, these laws are obsolete.

Yet they persist.

For example, I were to obtain these medications in Victoria and decide to go north to New South Wales (NSW) to take them, I would be committing an offence under Section 82 of the Crimes Act 1900 by procuring a miscarriage, and would be potentially facing a criminal trial and up to ten years 'penal servitude'. In NSW judicial precedent is relied upon by doctors, but would not help a woman in the this scenario.