Should it be more difficult to gain legal access to abortion in Australia?
Echo Issue Outline: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney
A case to be heard in November, 1996, may result in the High Court of Australia making a judgement on the legality of abortion and under what circumstances it should be available.
Two groups opposed to abortion - the Australian Catholic Bishops Conference and the Australian Catholic Health Care Association (ACHCA) - have been granted leave to join the case.
The pro-abortion group, the Abortion Providers Federation of Australia has also been granted leave to present evidence to the Court.
Another pro-abortion group, the Women's Electoral Lobby, has applied to the High Court to be a party to the case.
Known as the Superclinics case, it may be a significant test of the provisions under which abortion is currently available in Australia.
Background
The Superclinics case, began in 1994, when a woman brought a claim against a New South Wales clinic (Superclinics medical centre) for the failure of its doctors, in 1987, to diagnose her pregnancy until it was too late for her to have an abortion.
The woman is seeking damages in the High Court for the pain of bearing a child and the financial hardship of giving up work while raising the child. The child, a girl, is now ten years old.
The Superclinics case was dismissed by a judge of the New South Wales Supreme Court, who found the woman had no claim to damages because abortion was illegal in that state.
This decision has been seen as challenging the grounds on which abortions are often made available in Australia.
(The doctors and the clinic had also argued that the woman could not sue for the loss of an opportunity to have an abortion that would have been illegal.)
The New South Wales Supreme Court decision was then overturned, in 1995, in the New South Wales Court of Appeal.
The 1995 ruling, brought down by Mr Justice Kirby (who is now sitting on the High Court of Australia) has been claimed to have had the reverse effect to that of the previous New South Wales Supreme Court ruling, and to have significantly extended acceptable grounds for having an abortion.
The Court of Appeal ruling also leaves the clinic, and the doctors concerned, able to be sued for damages. The clinic and two doctors are now challenging the NSW Court of Appeal decision in the High Court.
This seesawing between legal denial and then extension of the supposed `right' to abortion within New South Wales, has focussed attention on the legal uncertainties surrounding access to abortion in Australia.
More than 77,000 abortions were funded by Medicare and performed in Australia last financial year.
Figures on the number of abortions performed on public patients in public hospitals are not available. (Some estimates suggest that the total number of abortions may be as high as one for every two live births.)
However, abortion is currently still listed on the criminal codes of every state and territory in Australia, and is still a crime in all states except South Australia and the Northern Territory.
In South Australia, the Criminal Law Consolidation Act, 1935, has been amended so that abortion is now legal if advised by two legally qualified medical practitioners; is performed in a `prescribed' hospital; and is performed on someone who has been a resident of South Australia for at least two months.
In the Northern Territory, the Criminal Codes Act 1983 has been amended so that abortion is legal up to but not over 14 weeks gestation, unless there is a substantial risk that the child will be seriously handicapped.
The legal standing of abortions in all states and territories other than South Australia and the Northern Territory is the result of three common law decisions - one in Victoria, one in New South Wales and one in Queensland.
In 1969, Victorian Supreme Court Justice, Clifford Menhennit, ruled that abortion was allowable if a pregnant woman's physical or mental health were at risk should the pregnancy continue.
In 1971, New South Wales District Court Justice David Levine adopted a similar position, instructing a jury that abortion was allowable if the pregnant woman's mental or physical wellbeing were in jeopardy. Unlike the Menhennit ruling, however, Justice Levine specifically instructed that financial hardship could be a factor in the decision.
In 1983, in Queensland, District Court Justice McGuire brought down a similar ruling.
These decisions have not been appealed and so have become precedents for the law on this question.
As a consequence of these decisions it has been possible for a woman to terminate her pregnancy if, in the opinion of her doctors, the continued pregnancy would cause her physical or mental harm.
The original New South Wales Supreme Court ruling in the Superclinics case implied that had the woman sought an abortion she would have been denied the operation as an illegal procedure.
If this ruling were endorsed by the High Court it would pose a challenge to current practice, which effectively allows abortion at the discretion of a woman's doctors.
If, on the other hand, the Court of Appeal ruling is upheld, it would seem to extend the grounds justifying abortion, to the point where, it has been claimed, Australia would have legal abortion on demand.
Arguments in favour of abortion remaining readily legally available in Australia
There are six major arguments offered in support of abortion remaining readily legally available in Australia.
The first argument offered is that the decision to terminate a pregnancy should rest primarily, and some would argue, solely, with the pregnant woman. Those who argue this position present the issue as essentially one of a woman's right to control her own body.
June Dryburgh, a senior counsellor at a fertility control clinic, has claimed, `It has nothing to do with anyone but the person involved. I don't think there should be laws, apart from making abortion safe. I don't think there should be legislation stopping people from getting an abortion.'
According to this line of argument, the consequences of the pregnancy are borne most directly and dramatically by the woman concerned and so, it is argued, the decision as to whether the pregnancy should proceed should be taken by the woman.
Related to this argument is usually the claim that what is at issue is not the life of another human being.
According to this line of argument, a foetus is not human life, with any legal claim to protection, because it is at an extremely rudimentary stage of development and because it is not independently viable, that is, it is unable to sustain life independently of the womb.
On the question of viability as an indicator of whether or not an abortion is appropriate, feminist author, Miriam Claire, has cited the 1973 landmark Roe v Wade case in the United States.
In the Roe v Wade case seven of the nine United States Supreme Court judges found that the state had `no compelling interest' in the foetus until the age of viability. (In 1973 this was set at 28 weeks. Advances in medical technology have meant that the age of viability is now generally regarded as 24 weeks.)
The other area, claimed by some of those who support abortion to indicate when an abortion is appropriate, is the stage of development the foetus has reached. According to this line of argument, at early stages of development, a foetus cannot be regarded as human life.
Miriam Claire argues, `Reasonable people have trouble understanding why they should view a newly fertilised ovum as a baby, because it is not a baby. It is a potential baby.'
Those who hold this position maintain that up to a certain time after conception, the foetus does not display the properties associated with human life.
Miriam Claire has suggested that brain development be used as a guide to whether an abortion is appropriate.
Ms Claire has maintained that synaptic connections, which allow information to pass from neuron to neuron, do not begin to form until around the 28th week of pregnancy,
`Until then, there is no sensory perception and the foetus cannot feel pain. Without a human brain to define us as human beings, our behaviour is not recognisable as human,' Ms Claire argues.
Thirdly, there are those who consider that abortion does involve the taking of another human life, albeit an undeveloped one, and who argue that in the balance of rights and needs between the pregnant woman and the foetus, the woman's rights take precedence.
Padraic McGuinness, writing in The Age, has argued, `To say that you never choose between human lives is to deny the possibility of triage, the sorting of patients to give priority of treatment to those in most urgent need or with a better chance of survival, which is standard practice in medicine, especially in emergencies.' According to some who support abortion, an unwanted pregnancy is a comparable situation in which the needs and rights of the woman must come before the supposed `right to life' of the child.
Those who hold this view, also argue that there are other circumstances in which Western society is prepared to accept the taking of a life.
Padraic McGuinness has claimed, `Not everyone agrees that the taking of a human life is absolutely immoral. Both church and state over the centuries have accepted the execution of criminals and heretics and the taking of life in war even when not in self-defence. Suicide in many cultures is accepted as a right. The killing by exposure of unwanted or defective infants has been standard practice in some times ... To pretend that there are any moral absolutes with regard to abortion is to assert a uniformity of belief and culture in our society that never existed, even it was predominantly Christian.'
Fourthly, it is claimed, the decision to have an abortion is not one that a woman takes lightly. Rather it is claimed by its supporters to be taken because such an action appears the best possible recourse in the circumstances.
Related to this are claims that other suggested solutions to an unwanted pregnancy, such as adoption, create long term distress for the mother and frequently for the adopted child.
Miriam Claire has claimed that a woman who gives up a child for adoption is more likely to suffer regret and distress, than one who has an abortion.
It has also been argued by some that adoption is no real solution for children that result from unwanted pregnancies.
June Dryburgh, a senior counsellor at a fertility control clinic, has argued, `I don't see (adoption) as the answer. I think that is a very traumatic thing. I never saw it as the best thing for the mother but years ago I used to think that it might be the best thing for the baby.
I now have doubts about that. I think it has effects forever.'
Finally, it is argued, no matter what stance the law in Australia ultimately takes on the issue, abortions will continue to occur.
Those who maintain this view then go on to stress that when abortion occurs illegally it is usually at great risk to the woman involved, either because she will attempt to induce the abortion herself, or because she will go to a practitioner, operating outside the law, whose standards and procedures may not be sufficiently rigorous.
Professor David Healy, chairman of the department of obstetrics and gynaecology at Monash University has noted, `In 1970, in Australia, illegal abortion was the most common killer of pregnant woman ... Since the liberalisation of abortion law, that has become an extreme rarity.'
Arguments against abortion remaining readily legally available in Australia
The central argument offered against abortion is that it is not simply a question of a woman seeking to exercise her rights over her own body.
Those who oppose abortion argue that there are two lives and two sets of rights at issue, those of the mother and those of the unborn child. Margaret Tighe, president of Right to Life, Victoria, has stated, `We have to recognise that there are two people here we must help.'
Many of those who are opposed to abortion believe that a human life is in existence from the time of conception.
Margaret Tighe has stated, `I'd like to see the recognition of the rights of the unborn child from the moment of conception.'
According to this point of view, foetal life may be undeveloped and not independently viable, however it should have some degree of legal protection.
According to this line of argument, any foetus that is the product of the fusion of two human gametes or sex cells, is, by definition, human.
Those who hold this view do not focus so much on the defining features of the human being, at a particular stage of his or her development, rather they tend to see life as a continuum which, under normal circumstances, will take a human being from pre-birth, through birth, infancy, childhood, adulthood and old age to death.
On the question of viability, it has been argued that this is no reliable guide as to whether an abortion should occur as even a new born infant is not independently viable, but needs constant care. Dependence, it is argued, is an inevitable element of pre-birth and infancy.
(Professor Peter Singer, who supports abortion, has argued that children up to four weeks old do not possess features that make killing them a case of seriously wronging them. The argument Professor Singer offers centres on the baby's level of awareness, rather than independence, however, anti-abortionists claim Singer's argument indicates the extent to which some pro-abortionists have lost sight of the value of a human life.)
Typically, too, those who oppose abortion tend to argue that there is no simple conflict between the wellbeing of the unborn foetus and the wellbeing of the pregnant woman.
According to this line of argument, abortion is not only a procedure that results in the death of a foetus, it can also cause lasting distress to the woman who has had her pregnancy terminated.
The Sunday Age in a feature article published on September 22, 1996, cited the position of a 32 year-old woman, `Alison', who at 24 had had an abortion.
`Alison' is quoted as saying, `To begin with I felt relieved but I don't think a day has gone by that it hasn't entered my mind ... With what I knew it was the best decision (at the time). But I would now think more than twice, think many, many times ... Abortion is seen as a quick fix-it for failed contraception but it leaves just as many if not more problems than it actually cures.
Hindsight is a wonderful thing but hindsight won't bring your baby back.'
The position put here is that abortion is not a solution to an unwanted pregnancy. `To say we are denying women's rights when you want to protect their children is completely wrong. Killing one's own child ... is totally unacceptable,' Mrs Tighe has argued.
According to this line of argument, there is an identity of interest between the pregnant woman and the unborn child which means that the woman is frequently damaged psychologically when an abortion is performed.
There are also those who argue that the current situation in Australia not only makes inadequate provision to protect the rights of the foetus, it also makes inadequate provision to protect the rights of the father.
Peter Vogel of Faulconbridge, NSW, has written to The Australian claiming, `Fathers are routinely excluded from pre-abortion counselling and it is common for a man's child to be aborted without him even knowing he had conceived a child.'
According to Mr Vogel there are many men who wish to take responsibility for their unborn children and who are denied the opportunity to do so.
`I await with interest a class action to challenge the right of a woman to abort a man's child even if he is prepared to take full responsibility for its upbringing.'
Mr Vogel has also argued that where a father is prepared to assume full financial responsibility for his child, then this should remove one of the major grounds (financial distress) on which abortions are allowed in New South Wales.
`Assuming the health of the mother is not endangered by the birth, the remaining justification for aborting evaporates if the father is willing to raise the child without any demands on the mother,' Mr Vogel argues.
`No doubt many men are perfectly happy with their partner's decision to abort, but there are also many men silently grieving for their lost children,' Mr Vogel concludes.
In addition, many of those who oppose abortion, argue that if abortion is either illegal or available only under very special circumstances, then our society as a whole has a responsibility to support all mothers, especially those with unintended and unwanted pregnancies.
`We should be providing ample assistance to women who have problem pregnancies so that our whole culture is a culture of life, not a culture of death,' Margaret Tighe has argued.
Finally, those who believe that abortion is too readily available tend to focus on the number of abortions performed annually in Australia - a conservative estimate puts the figure at some 70,000 abortions per year.
Those who believe that Australia has a situation where abortion is virtually available `on demand', argue that not all these abortions can have been conducted because the mothers' mental or physical health was endangered.
According to those who hold this view, the current situation provides conditions under which abortion can be granted too liberally.
Further implications
Obviously, it is impossible to predict with certainty, but it seems unlikely that the High Court hearing will result in a significant alteration to the circumstances under which abortion is currently available in Australia.
It is probable that the law will not be amended or clarified in a way that makes abortions more difficult to obtain.
Professor Raimond Gaita, a professor of philosophy at the University of London, on secondment to the Australian Catholic University, has stated his belief that the abolition of abortion is a `lost cause'.
`I would have thought nobody had a chance of seriously reviewing the present abortion laws.'
What Professor Gaita appears to be implying is that given that abortion has been a de facto practice in Australia for more than 25 years, if not a fully legally sanctioned procedure, it is highly unlikely that it will be significantly restricted as a result of the High Court hearing.
The ruling is likely to endorse the status quo, in terms of confirming that it is acceptable for a woman to have an abortion where her mental or physical wellbeing is judged to be threatened by a continued pregnancy.
If this is part of what the High Court finds, then what may result is that all states will follow South Australia and the Northern Territory, and amend their criminal code to define the circumstances under which abortion is legal.
If all Australian states and territories amend their criminal code regarding abortion so that their laws are in accord with the Menhennit and Levine judgements, this would legally entrench, and may even extend, current practice.
It may also be that as part of the High Court's finding hospitals and clinics are required to advise pregnant woman of the circumstances under which they can have an abortion performed.
This would pose a particular ethical dilemma for Catholic hospitals.
The Australian Catholic Health Care Association (ACHCA) has received legal advice that the case could establish a precedent which would require all 57 Catholic hospitals, including 20 public hospitals, to advise women as to how to terminate their pregnancies.
Francis Sullivan, the executive director of ACHCA has warned that Catholic hospitals might cease offering services to pregnant women under such conditions.
If this were to happen it would place what would probably prove to be an insupportable strain on the obstetric and maternity services offered in other hospitals. (Catholic health facilities make up 13 per cent of the hospital system.)
Mr Nicholas Tonte-Filippini, a Catholic medical ethicist, has also expressed concern that the success of the medical negligence claim in the High Court could force Catholic doctors to provide other medical services against their consciences, including IVF and organ transplants.
Finally, there is the outside possibility that the High Court's finding may result in making abortions more difficult to obtain.
If the High Court supports the finding of the New South Wales Supreme Court, it would send a message to the community at large and to the medical community in particular, that the circumstances under which a pregnancy is claimed to threaten a woman's physical or mental health need to be interpreted more narrowly than is currently the case.
This would be a momentous decision as it would pose a direct challenge to current medical practice. The ramifications of such a decision can only be guessed at, but it is certain there would be an immediate ground swell of protest from women's lobby groups and other interested parties.
As a footnote, current abortion provisions are being challenged on another front. Independent Tasmanian senator, Brian Harradine, has urged the Government to dramtically restrict the grounds for having abortions funded by Medicare.
There has also been the suggestion that Senator Harradine's support for Government bills in the Senate, particularly the controversial Telstra privatisation Bill, may depend on the position the Government takes on Medicare funding for abortions.
Sources
The Age
12/9/96 pages 1 and 2 news item by Gervase Greene, `Finally, abortion hits High Court'
13/9/96 page 3 news item by Gervase Greene, `Pro-choice lobby joins abortion case battle'
14/9/96 page 25 comment by Padraic P McGuinness, `Abortion debate better left undisturbed'
15/9/96 pages 1 and 2 news item by Paul Daley, `Senator's bid to stop abortions'
16/9/96 page 3 news item by Laura Tingle and Karen Middleton, `Abortion back on the agenda, says Fischer'
18/9/96 pages B1 and B7 comment by Gervase Greene, `Too late, too late, she cried'
22/9/96 page 14 editorial, `Abortion and the moral minority'
22/9/96 page 14 comment by Terry Lane, `Politically stirred by the strife of Brian'
22/9/93 page 15 a collection of comments on abortion by June Dryburgh, Margaret Tighe, Professor David Healy and two women who have had abortions, complied by Maree Curtis and headed, `A matter of life or death'
23/9/96 page 9 comment and analysis by Pamela Bone, `The A bomb'
23/9/96 page 10 editorial, `Abortion at issue again'
23/9/96 page 11 comment by Dale Spender, `Where men decide a woman's rights'
The Australian
10/9/96 page 13 comment by Raimond Gaita, `How thoughtlessness stifles ethics debate'
12/9/96 page 1 news item by Bernard Lane, `Catholics fight abortion test case'
12/9/96 page 4 news item by Trudy Harris and Fiona Carruthers, `Bishops welcome chance to be heard'
13/9/96 page 3 news item by Bernard Lane, `Abortion clinics oppose Catholics in court'
13/9/96 page 13 comment by Ryszard Piotrowicz, `Legal remedy for abortion'
14/9/96 page 5 news item by Kimina Lyall, `Women's group fights to limit abortion test case'
14/9/96 page 21 analysis by Nicolas Rothwell, `Abortion on retrial'
17/9/96 page 12 editorial, `An abortion quandary for High Court'
18/9/96 page 14 letter to the editor from W.J. Uren, Provincial Superior, Jesuit Oder in Australia
20/9/96 page 11 comment by Kate Legge, `Abortion and the new morality of choice'
23/9/96 page 10 four letters to the editor under the heading, `Fathers ask for role in abortion debate'
The Herald Sun
16/9/96 page 2 news item by Karl Malakunas, `Abortion funding in doubt'
26/9/96 page 19 comment by Rhondda Johnson, `We can't turn back'
`Abortion is seen as a quick fix-it for failed contraception but it leaves just as many if not more problems than it actually cures. Hindsight is a wonderful thing but hindsight won't bring your baby back'
`Alison', a 32 year-old woman commenting on her abortion
`It has nothing to do with anyone but the person involved. I don't think there should be laws, apart from making abortion safe. I don't think there should be legislation stopping people from getting an abortion'
June Dryburgh, a senior counsellor at a fertility control clinic