What they said ... `Don't they realise that by preventing women having access to abortion it doesn't stop them getting pregnant, it doesn't stop women needing abortions. It just means they get them in places where the conditions aren't safe' A doctor working at a Melbourne abortion clinic
`Once you say that abortions are freely available then you find that people who would never have contemplated one will have one - and doctors who would never have contemplated referring a woman for one will refer them' Margaret Tighe, president of Right-to-Life, Victoria
On February 10, 1998, two Perth doctors were charged with attempting to procure an abortion. The incident arose after it was reported to police that a Maori woman who had had an abortion had been given her aborted foetus for burial.
Particular controversy appeared to have been aroused by the fact that the foetus had been kept in the family refrigerator prior to burial. In the event, police took the foetus as evidence and charges were laid against both the doctor who performed the operation and his anaesthetist. The charges were apparently laid at the direction of the Western Australian Director of Public Prosecutions, Mr John McKechnie QC.
This is the first time in 30 years that charges have been laid under the sections of the Western Australian criminal code dealing with abortion.
The case has created enormous debate, with anti-abortionists calling for a general implementation of anti-abortion laws and abortion supporters arguing that either the law must be clarified and liberalised or abortion should be removed from the criminal code altogether.
Background
Under the terms of the Western Australian criminal code it is a crime punishable by a maximum of 14 years' imprisonment for a doctor or other person to perform an abortion. It is a crime punishable by a maximum of seven years' imprisonment for a woman to attempt to abort her own pregnancy or to allow another person to perform an abortion upon her.
The only extenuating circumstances appear to be when an abortion is considered necessary to preserve the life of the mother. Under these circumstances no crime is committed.
Currently the strict letter of the law is not observed. It is estimated that between 8,000 and 9,000 abortions are performed in Western Australia annually. This situation exists, at least in part, because legal precedents established in other states have encouraged a liberal interpretation of what the Western Australian criminal code allows.
The current controversy in Western Australia centres around the exact provisions of the Western Australian Criminal code. Those who oppose abortion argue that the law should be applied. Those who believe abortion should be more readily available argue for one of two things. Some seek a liberalisation of the law, that is, an extension of the circumstances under which abortion would be legal. Others believe that abortion should be removed from the criminal code altogether, to be treated as any other medical procedure. The last proposal, in particular, would give freer more secure access to abortion.
Situation across Australia regarding abortion
It is estimated that some 80,000 abortions are performed in Australia annually.
Despite this, in all Australian states and territories, the extent to which abortion occurs is ultimately a matter of law. Abortion is the only medical procedure which is specifically the subject of the criminal law in each Australian State and Territory.
Only South Australia and the Northern Territory have laws which allow abortion under relatively liberal circumstances.
In South Australia, relevant legislation was amended in 1969 to make abortion legally available on grounds which include danger to the woman's mental or physical health and foetal abnormality. The abortion is legal if advised by two legally qualified practitioners and is performed in a `prescribed hospital' on a woman who has been a resident of South Australia for at least two months. (This legislation, though far more liberal than the Western Australian criminal code provisions, has been criticised as being too restrictive.)
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, under which circumstances an abortion may be performed later into the pregnancy.
In all other states and territories procuring an illegal abortion is an offence under each jurisdiction's criminal code.
In practice, the current legal standing of abortion in these states and territories has come to depend on the interpretation of the criminal code made in two landmark rulings in Victoria and New South Wales.
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 well-being were in jeopardy. In addition, Justice Levine specifically instructed that financial hardship could be a factor in the decision.
These rulings have not been appealed and so have become precedents for the law on this question.
There are a large number of Internet sites dealing with abortion.
One pro-abortion site of particular interest is produced by the Children by Choice education, counselling and lobby group. The group is based in Queensland. Their index gives click-throughs to contemporary survey information indicating popular attitudes to abortion across Australia. From their index it is also possible to access the relevant provisions of the Western Australian criminal code and to get detailed information on the availability of abortion in all Australian states.
Another site of interest gives a detailed look at current proposals to reform abortion law across Australia. This research paper is titled, The Model Criminal Code Project. The paper is written by Lesley Vick LLB MA. The author argues that abortion should be removed from the criminal code altogether.
The paper is concerned that the proposals put by the Standing Committee of Attorneys General in 1996 would continue to have abortion regulated by law.
A shorter, but similar, discussion can be found in Lisa Macdonald's Another threat to women's right to choose. This is also a consideration of the abortion proposals made by the Standing Committee of Attorneys General. The committee proposes that a national abortion law should be modelled on that operating in South Australia. Ms Mcdonald argues that the South Australian law is too restrictive and further that abortion should not continue to be regulated by criminal law.
All the above Internet references favour decriminalising abortion.
Finally, there is a ten-page discussion which argues that abortion should remain a criminal offence. Greg Smith, a barrister and president of the Right to Life Association(New South Wales) has written a paper titled, Abortion Law in Australia with Particular Reference to New South Wales. Though written in 1994, the piece is still relevant to Australian abortion law as it currently operates. It supplies a defence of the rights of the unborn and a detailed discussion of current law and its interpretation.
Arguments against abortion being a criminal offence
There are a number of arguments offered in favour of abortion on demand being legally available and those who perform it or have it performed not being liable to prosecution.
One of the main arguments centres on a woman's control of her life, her body and her reproduction. According to this line of argument the question of whether or not a pregnancy should continue is fundamentally one to be decided by the woman concerned.
Those who hold this point of view note that it is the pregnant woman who must decide whether she wants to carry the child to term and then care for it afterwards. It is claimed that she alone can decide whether her total life circumstances make her willing and able to do this.
From this position the woman should be able to consider her financial, social and emotional circumstances when deciding whether or not to continue a pregnancy. This argument is sometimes referred to as the `right to choice' position. By this is meant that women should be able to choose whether they wish to carry on with a pregnancy.
This position has been put by a woman referred to in the press under the pseudonym "Sue", whose abortion was postponed as a result of the charges against an abortion practitioner in Western Australia. Sue claimed, `Nobody has the right to tell us what we can and can't do with our lives. They don't understand everyone's personal circumstances.'
It is also claimed that abortion may be a woman's best method of demonstrating maternal care. By this is meant that a woman may make a judgement that she is not able to act as a mother toward her unborn child and so decide that the only responsible action she can take is to end the pregnancy.
This position has been put by bioethicist Leslie Cannold. Ms Cannold quotes one of a number of women she interviewed who had had abortions. The woman is reported as having said, `My decision to have an abortion would be the decision I made to care for the child that was within me.'
This argument is used to counter the claim that a pregnant woman who does not want to rear a child could have the child adopted.
Ms Cannold claims, `Women don't feel that it is okay to have a child out there in the world that they're not looking after.'
Another aspect of this argument centres around the status of the unborn child. Many of those who support ready, legal access to abortion argue that foetal life in its early stages should not receive the same legal protection human life receives when it is more fully developed.
According to this line of argument, in the first weeks of a pregnancy the foetal life is so undeveloped that removing it from the womb does not have the same gravity that would be the case if an abortion were performed later into the pregnancy.
This position has been put by Age writer, Pamela Bone, who has argued, `... there is a fair amount of consensus ... that the abortion of a six-months-old foetus is worse than the abortion of a six-week-old foetus, and that that is worse than the abortion of a six-day-old fertilised egg.'
Part of this argument appears to centre around viability. By this is meant that while a foetal life is so undeveloped that it could not survive independent of its mother's body, then it has less claim to legal protection.
Another part of this argument appears to centre around definitions of what exactly human life means. According to this line of argument, in its early stages of development, foetal life cannot be regarded as fully human life.
Those who favour abortion being available at the request of the woman also argue from a purely practical or pragmatic point of view.
According to this line of argument, no matter what the law states there will always be unwanted or unintentional pregnancies and many of the women involved will continue to seek abortions.
Those who hold this point of view maintain that laws which severely restrict access to safe, legal abortion force many women to go to illegal practitioners, who may be less safe, or to attempt to abort themselves.
One doctor working at a Melbourne abortion clinic, referring to the Western Australian situation, remarked, `Don't they realise that by preventing women having access to abortion it doesn't stop them getting pregnant, it doesn't stop women needing abortions. It just means they get them in places where the conditions aren't safe.'
It has also been claimed that restricting legal access to abortion is economically discriminatory, as wealthy women will still be able either to travel to areas where they can more easily have an abortion or pay to have safe abortions performed locally.
This point has also been made by the Melbourne abortion clinic doctor just quoted. On this aspect of the issue he noted, `And it becomes a class issue as well. Only those who can afford to travel interstate can get one. The poorer people have to rely on backyard abortionists. It is such a backward step.'
Finally it is argued that the law should be in line with the most commonly held community view.
According to this line of argument, a majority of Australians favour a liberal attitude to abortion and thus, it is claimed, Australia's laws should reflect this. Those who hold this view argue that the law exists not to lead or shape public opinion, but to embody it.
Arguments in favour of abortion being a criminal offence
The primary argument offered against abortion being legally available is that more is at issue than a woman's right to control her own body and reproduction.
According to this line of argument, the right of the unborn child to continue living takes precedence over the right of a woman not to continue an unplanned and unwanted pregnancy.
Those who hold this view also argue that the foetal stage of development is irrelevant. The argument here is that a human life is just that, whether it be at an early or later stage of development and irrespective of its degree of dependence on its mother.
This position has been put by Helen Verlander, a freelance writer and adviser to Victorian Liberal MP Kevin Andrews.
Ms Verlander has written, `It has always seemed extremely disingenuous to me to see abortion as a personal choice, like choosing a certain make of car or opting for a certain hairstyle. Because my decision impacts on another human being - and it seems to me to be only splitting hairs as to which stage of being they are at - it takes on a moral dimension.
If we accept that I, as a mother to be , should behave responsible with regard to the future well-being of my child by not smoking or drinking alcohol, then surely I am so much more responsible for the continued being of the life within me.'
Those who hold this position defend what they refer to as the `right-to-life' of the unborn.
They also tend to claim that it is inconsistent for Australian legislatures to have revoked capital punishment, while at the same time allowing their laws to be interpreted in ways that make abortion available.
According to this line of argument, if a society respects the life of convicted murderers, it should respect the life of unborn children at least as much.
This position has been put by C.A. Barbetti, in a letter published in the Herald Sun on February 15, 1998, in respond to a previous editorial in that paper.
The letter writer argued, `You stated rightly that "State sanctioned killing is wrong and dangerous." It certainly is.
But that is exactly what happens to 80,000 Australian babies killed annually by abortion.
The State sanctions their killing, even pays for it [via Medicare], and no one seems to care.'
It is also argued that pregnant women who do not want to rear their children have options other than abortion.
According to this line of argument it is possible for the woman to carry the child to term and then, if she still does not want to keep it, put it up for adoption.
Ms Verlander has stated, `But surely the main ... choice should be between adopting out and having the baby. Something seems terribly out of kilter when almost 75,000 foetuses are aborted in Australia annually and childless couples generally have to go abroad to find children to adopt.'
There are also those who stress that making abortion readily legally available does not just cater for the desperate who would go to a backyard abortionist if a safe, legal service were not available.
According to this line of argument, making abortion readily legally available does two things. It gives the sanction of the law to an action that was previously technically illegal and it acts as an encouragement to women and doctors who might otherwise not have accepted or endorsed abortion.
This position has been put by Mrs Margaret Tighe, president of Right-to-Life Victoria Inc. Mrs Tighe has claimed, `Once you say that abortions are freely available then you find that people who would never have contemplated one will have one - and doctors who would never have contemplated referring a woman for one will refer them.'
This point has also been made by Ms Verlander, who has noted, `I suddenly came across a belief that I could not only choose an abortion but, given the availability of the choice, I was required to take it.'
Ms Verlander argues that some men, in particular, have come to see it as automatic that a woman will have an abortion if an unplanned pregnancy occurs.
Ms Verlander has further claimed that there are men who seek to deny responsibility for children they have fathered because their partners did not have an abortion when one was available.
Ms Verlander argues that these men seek to avoid their responsibility by claiming that if the woman chose to continue with the pregnancy then she should also assume full responsibility for the child.
According to this line of argument, the ready availability of abortion can be exploited by men as a way of disclaiming their duty of care toward their children.
Finally, there are those who argue that women who wish to exercise control of their bodies and reproductive responsibility, should do so before they become pregnant.
According to this line of argument, informed use of contraceptives should prevent most unwanted pregnancies occurring.
Relatedly, it is claimed, an effective means of making legalised abortion largely unnecessary would be to ensure that people are fully educated about contraception and the responsibilities that go with parenthood.
Thus, Ms Verlander has written, `Surely the answer is public education. The message should be that abortion is not a form of contraception...'
(Those who oppose the legal availability of abortion rarely stress that they wish the procedure to be treated as a criminal offence, yet this is the logical extension of their arguments. Their hope appears to be that were abortion generally treated as illegal then there would be far fewer women who would seek it or doctors who would perform it and so charges would not often have to be laid.)
Further implications
The immediate consequences of charges being laid against two doctors for attempting to procure an abortion was that at least one Perth hospital, acting on legal advice, cancelled all scheduled abortions. In addition, the Australian Nurses Federation advised all Western Australian nurses not to assist with abortions for fear of also being charged.
Finally the Western Australian Attorney General, Peter Floss, indicated that medical staff would not be prosecuted for performing abortions, despite the charges laid against the two Perth doctors.
The Government assurance appears to have been partly prompted by reports that two women had been hospitalised after attempting to perform abortions on themselves. There were also reports of numbers of Western Australian women preparing to travel interstate for abortions.
It remains to be seen whether the charges against the two doctors will go ahead. The Australian Medical Association and a group of 13 women politicians are lobbying the Western Australian Director of Public Prosecutions, Mr McKechnie, to drop the action.
Whatever happens in regard to the two doctors immediately concerned, the case has emphasised the large gap between the criminal code in Western Australia regarding abortion and the manner in which that code is usually interpreted.
It seems likely that legislation formally liberalising access to abortion will soon come before the Western Australian Parliament. The bill is likely to be a private member's bill and its fate is hard to predict as all political parties are almost certain to direct their members to follow their consciences.
As far as Australia as a whole is concerned, it remains to be seen whether a recommendation made last year by a sub-committee of state attorneys general, that the South Australian abortion legislation be adopted across the whole country, will be followed.
The current controversy may make those states that operate on precedent and judicial ruling, such as Victoria, want to clarify their abortion rulings in legislation. If this happens, there is likely to be opposition from those opposed to abortion, who regard the South Australian law as too liberal, and from those who support abortion, who regard the South Australian law as too restrictive.
Sources The Age
7/2/98 page 15 news item by Tania Ewing, `Fresh clashes loom on old battleground'
10/2/98 page 3 news item by David Reardon, `Abortion case could close clinics: AMA'
11/2/98 page 3 news item by David Reardon, `Police deny a crackdown after abortion charges'
11/2/98 page 16 editorial, `abortion ploy will backfire'
11/2/98 page 17 comment by Lesley Vick, `Fear not days of old in new focus on abortion legislation'
12/2/98 page 17 comment by Pamela Bone, `Law for a moral conundrum'
12/2/98 page 17 comment by Helen Verlander, `Wrongs committed in the name of rights'
14/2/98 page 5 news item by David Reardon, `Doctors call for abortion reform'
14/2/98 page 6 (News Extra section) analysis by Tania Ewing, `The abortion timebomb ready to explode again'
The Australian
7/2/98 page 3 news item by Natalie O'Brien, `Legal doubt on thousands of abortions'
9/2/98 page 2 news item by Monica Videnieks, `Lawrence slams DPP on abortion charges'
10/2/98 page 5 news item by Natalie O'Brien & Matt Price, `Lobby asks DPP to spare abortionist'
10/2/98 page 14 editorial, `WA abortion move potentially divisive'
11/2/98 page 1 news item, `Abortion: two charged'
11/2/98 page 5 news item by Natalie O'Brien & Matt Price, `Abortion charges create state of panic'
11/2/98 page 5 news item by Matt Price, `Mystery remains: why pick this case?'
11/2/98 page 5 news item by Matt Price, `The personal trauma at heart of legal wrangle'
12/2/98 page 3 news item by Natalie O'Brien, `Stop abortions or face charges, nurses told'
13/2/98 page 1 news item by Natalie O'Brien & Matt Price, `Police back off after bungled self-abortion'
14/2/98 page 8 news item by Natalie O'Brien, `Abortions resume after law guarantees'
14/2/98 page 26 analysis by Matt price, `Body of evidence'
14/2/98 page 7 (Review section) analysis by Sally Blakeney, `Mothers of good intention'
The Herald Sun
11/2/98 page 16 news item by Mark Russell, `Abortions dilemma for doctor'
15/2/98 Page 40 letter from C.A. Barbetti, `State shame'
Internet
* It appears that the English Board of Studies may be refining its guidelines on the use of Internet sources for CAT I.
* Currently it is probably preferable for students to restrict their use of Internet sources to Part 2 of CAT I.
* Please consult your teacher for direction on this matter.
There are a large number of Internet sites dealing with abortion.
One pro-abortion site of particular interest is produced by the Children by Choice education, counselling and lobby group. The group is based in Queensland. Their index gives click-throughs to contemporary survey information indicating popular attitudes to abortion across Australia. From their index it is also possible to access the relevant provisions of the Western Australian criminal code and to get detailed information on the availability of abortion in all Australian states. The Children by Choice index can be found at http://www.powerup.com.au/~cbyc/index.htm
Another site of interest gives a detailed look at current proposals to reform abortion law across Australia. This research paper is titled, The Model Criminal Code Project. The paper is written by Lesley Vick LLB MA. The author argues that abortion should be removed from the criminal code altogether.
The paper is concerned that the abortion law proposals put by the Standing Committee of Attorneys General in 1996 would continue to have access to abortion regulated by law. This discussion can be found at http://users.netinfo.com.au/arha/Abort.html
A shorter, but similar, discussion can be found in Lisa Macdonald's Another threat to women's right to choose. This is also a consideration of the abortion proposals made by the Standing Committee of Attorneys General. The committee proposes that a national abortion law should be modelled on that operating in South Australia. Ms Mcdonald argues that the South Australian law is too restrictive and further that abortion should not continue to be regulated by criminal law. This discussion can be found at http://www.peg.apc.org/~stan/250/250p7.htm
All the above Internet references favour decriminalising abortion.
Finally, there is a ten-page discussion which argues that abortion should remain a criminal offence. Greg Smith, a barrister and president of the Right to Life Association(New South Wales) has written a paper titled, Abortion Law in Australia with Particular Reference to New South Wales. Though written in 1994, the piece is still relevant to Australian abortion law as it currently operates. It supplies a defence of the rights of the unborn and a detailed discussion of current law and its interpretation. This discussion can be found at http://www.kyrie.com/actrtla/abortion/bookab/smith.htm
Back to previous page
