Right: Human rights advocate and lawyer Julian Burnside. Burnside has been quoted as saying "Women have the intellectual and moral capacity to make decisions about their own fertility".
Arguments in favour of making abortion legal in Victoria
1. The decision as to whether to have an abortion or not rightly rests with the woman
The abortion reform Bill allows women to decide whether they wish to have an abortion up to 24 weeks gestation without having to seek medical support for their decision on the basis of the possible physical or psychological harm continuing with the pregnancy might cause them.
This position has been clearly stated by Julian Burnside, QC, the president of Liberty Victoria, in explaining the view of the organisation he heads. Burnside has stated, 'Liberty Victoria's position on this issue starts from a number of basic premises. First, that women have the intellectual and moral capacity to make decisions about their own fertility.
Second, the right to reproductive freedom is implicit in international conventions, specifically in provisions which refer to the right to privacy, health and equality. In particular, Article 16 of the Convention on the Elimination of Discrimination Against Women (CEDAW) requires all States Parties to take appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. It requires Parties to ensure, on a basis of equality of men and women "the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights". Australia is a party to CEDAW. Australian law should be brought into conformity with its international human rights obligations.'
From this point of view the decision as to whether to proceed with a pregnancy or not can only be made by the woman. The Victorian Bill largely supports this right; however, there are those who have criticised the Bill because it requires that apregnant woman acquire the support of two doctors if she wishes to terminate a pregnancy after 24 weeks.
2. Legalising abortion would formalise what already occurs in this state
Abortion has been part of the Crimes Act since 1958 and can carry a penalty of 10 years' jail. However, in 1969 Justice Clifford Menhennitt ruled in the Supreme Court, in a case brought against Melbourne gynaecologist Ken Davidson, that abortion could be legal if it were necessary 'to preserve the woman from a serious danger to her life or her physical or mental health'.
As a result of the Menhennitt ruling, no one has been charged in relation to abortion in Victoria for 21 years. It is estimated that there are some 20,000 terminations each year in this state. That is the equivalent of about 55 abortions a day. The section of the Crimes Act prohibiting abortion is therefore effectively defunct.
Supporters of the Victorian Government's Abortion Bill argue that all they are attempting to do is bring the statute into line with reality. That is, the Menhennitt ruling has meant that abortion is no longer treated as a crime in Victoria; therefore, it should no longer be listed as a crime under the Victorian Crimes Act.
Abortion rights campaigner, Jo Wainer, has stated, 'The law has been
ignored by the Federal government because Medicare refunds medical fees for abortion, by the State government because public hospitals provide abortion services and the Department of Human Services regulates the day procedure centres, and by medical colleges such as the Royal Australian and New Zealand College of Obstetricians and Gynaecologists because they have a policy on their web site supporting their members who provide this service. This anomaly is making the law an ass. It is a hangover from ancient thinking. Let us just dig it out and turf it away. We don't need this.'
3. Legalising abortion would largely remove the risk of prosecution that still exists for those who procure or perform abortions
It has been claimed that while abortion remains technically a crime in Victoria doctors who perform the procedure cannot be certain that they will not face prosecution.
Julian Burnside, QC, the president of Liberty Victoria, has stated, 'The law must be clear and certain. Australian abortion law has been described by medical practitioners as inadequate, "unclear and outdated"... They argue that the "current laws have grey areas that leave doctors vulnerable to accusations, negative publicity and career damage".
Furthermore, by maintaining the abortion provisions in the Crimes Act 1958, the threat of criminal conviction hangs over the heads of doctors, women and their partners should they terminate the women's pregnancy. It is time for politicians to clarify the law and correct this untenable position.'
The same position has been put by abortion rights campaigner, Jo Wainer, who has stated, 'This law, which has to go, criminalises twenty thousand women a year, it threatens doctors and nurses and other providers with ten years imprisonment. All the other people who take part, like the pharmaceutical and medical supply companies, nursing and counselling staff, receptionists and security guards, are liable for five years in jail.'
The legal restrictions surrounding late term abortion are even less clear. Lachlan J de Crespigny and Julian Savulescu, in an article published in The Medical Journal of Australia have noted, 'Legal uncertainty about abortion is further increased by the crime of child destruction (this crime applies only to abortions performed late in pregnancy). Victoria, Queensland, South Australia and the Northern Territory have child destruction laws. The situations in which the law applies are variable and uncertain.
In Victoria, abortion in late pregnancy is said to be lawful if done in good faith, solely to preserve the mother's life.2 Courts may interpret lawful grounds for termination to include situations in which there is a serious risk to the pregnant woman's life or health, but we cannot be certain.
This leaves two differing laws on abortion that might apply in a particular case, despite the fact that the House of Lords debate on the Infant Life (Preservation) Act 1929 (which created the new offence of child destruction) made it clear that it was not introduced as a second, potentially conflicting law of abortion. Its purpose was to cover the time during and immediately after labour until the cutting of the umbilical cord, a previously unlegislated period - too late for the law on abortion, but too early for the law on infanticide.'
4. The Abortion Law Reform Bill recognises the special status of late-term pregnancies
It has been noted that the Abortion Law Reform Bill makes specific allowance for the special circumstances that surround late-term abortion. Late-term abortion poses a particular set of problems.
Firstly, there is the issue of viability. A baby born after 24 weeks is, with special assistance, capable of survival. The further through the gestation period an abortion is performed, the more likely it is that were the pregnancy terminated with a delivery rather than an abortion, the baby/foetus would survive.
Secondly, there are the related issues of sensitivity to pain and the development of consciousness. Thoughout most of the debate surrounding this Bill the question of whether abortion should occur has not been the issue. What is being discussed are the circumstances under which it will occur. Where late-term abortion is being considered there is less certainty in the public mind and that of legislators.
This is in part because the more developed a foetus is the more likely it is to be able to feel pain and question of cruelty as well as that of right to life comes into play. There is also the issue of personhood. The nearer a foetus is to full term, the more possible it is to see it as a person in its own right and thus the more problematic ending its life seems.
One of the Law Reform Commission's options for dealing with abortion law reform in Victoria was to make abortion available on request to full term. The Bill has not taken up this option. Instead it has adopted another option suggested by the Commission which is that abortion be available on request up to 24 weeks and that after that point it requires the agreement of two doctors that an abortion is necessary for the woman's welbeing before that abortion can proceed. This has been interpreted as an attempt to recognise the special status of late-term pregnancies.
5. A majority of Australians support the legalisation of abortion
Though survey results clearly vary according to exactly what questions are asked (and, in particular, how detailed the questions are) most survey results have revealed widespread support for making abortion readily available to Australian women.
The 2004 Australian Election Study (AES) reveals that over 50% of respondents believe a woman should be able to readily access "abortion on demand."
When including r e s p o n d e n t s who believe that abortion should be allowed under special circumstances, support for abortion increases to almost 90%.
In contrast, only 4% felt that 'abortion should not be allowed under any circumstances.'
Similarly, the Public Health Association of Australia has stated, 'It is overwhelmingly
clear that the majority of Australians support liberal access to abortion.'
According to the 2003 Australian Survey of Social Attitudes (AuSSA) 81.2% of
respondents were prochoice, agreeing that a 'women should have the right to choose
whether or not she has an abortion'.
Only 9.4% of those surveyed disagreed that a woman should have the right to choose, with only 4.4% disagreeing strongly with the statement.
Poll findings such as these have repeatedly been used to justify calls for the liberalising or decriminalising of women's access to abortion.