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Wednesday 26 September 2007 By Fr Kevin McGovern A recent move in Victoria to decriminalise abortion invites reflection on this issue. In this article, I review the history which has led to the present situation, and then offer four comments:
This history begins with an English law, the Offences Against the Person Act 1861.
Section 58 of this Act prohibited abortion.1 To be precise, it sanctioned “unlawfully” procuring an abortion, which implies that there would have been some lawful exception(s) to the law. This was not detailed at the time, but in all probability the sole exception would have been when the mother’s very life would be lost if the pregnancy continued. Note too that this law reflected the moral views of society at this time.
This English law was the basis of legislation in many jurisdictions around the world, including all the states and territories of Australia. In Victoria, a law enacted in 1864 eventually became the Crimes Act 1958. Section 65 of this law prohibits abortion in words that are basically unchanged since 1861.2
In 1969, a doctor named Charles Davidson was charged with five offences against this law. During his trial, he sought a ruling from the Victorian Supreme Court on the meaning of the word “unlawfully.” This case, R v Davidson, was heard by Justice Menhennitt, and its determination is commonly referred to as the Menhennitt ruling. It was the first ruling on the legality of abortion anywhere in Australia. Its principles were subsequently adopted elsewhere both in New South Wales and in Queensland.3
Justice Menhennitt drew on a legal precedent, a 1938 English case heard in the Courts of Assize, R v Bourne. The judge in that case determined that a pregnancy would be lawfully terminated “if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck.”4
Menhennitt also invoked the legal concept of necessity. As he noted, there are two tests for necessity. Firstly, it must be demonstrated that the person who acted honestly believed on reasonable grounds that their action was necessary. And secondly, it must also be demonstrated that a reasonable person in the same position would consider that what was done was not, all things considered, out of proportion to the exigencies of the situation. These two tests are sometimes referred to as necessity and proportion.
From all this, Justice Menhennitt expressed his ruling:
For the use of an instrument with intent to procure a miscarriage to be lawful the accused must have honestly believed on reasonable grounds that the act done by him (sic) was (a) necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuation of the pregnancy would entail; and (b) in the circumstances not out of proportion to the danger to be averted.5
With this ruling, Dr Davidson was found not guilty of the charges against him.6
Nowadays, of course, this Menhennitt ruling is used to justify what is effectively abortion on demand. We should note, however, that there are four separate steps in this trajectory. There is the original 1861 law. There is its interpretation in 1938. There is its reinterpretation in 1969. And there is its use nowadays to justify abortion on demand. Each succeeding step claims not to change but only to clarify the existing law. However, in my opinion, each of these steps actually does change the meaning of the law. For example, the Menhennitt ruling with its twin tests of necessity and proportion simply does not justify abortion on demand. Without in any way diminishing the difficulties raised by an unplanned pregnancy, such an unplanned pregnancy even with all its challenges simply does not make abortion necessary. And while an unplanned pregnancy may present grave difficulties, the death of an unborn is out of all proportion to these. It is simply disproportionate to end one life because another life faces even serious challenges. I must conclude that all this is not good legal jurisprudence.
Moving on, on 19 July 2007, Ms Candy Broad, the member for the Northern Victoria Region in the Legislative Council (Victoria’s Upper House), introduced her Crimes (Decriminalisation of Abortion) Bill 2007.7 This bill sought to delete the sections on abortion from the Crimes Act.8 It also created a new section which made it an indictable offence for anyone other than either a medical practitioner or someone acting under a medical practitioner’s direction to perform an abortion. In introducing her legislation, Ms Broad argued that it was necessary “to ensure the provision of safe and competent health services to women having an abortion,” to “bring legislation regarding abortion into line with community expectations,” and to remove the “risk of criminal prosecution” which she thought was faced by abortion doctors, their support staff, and women having abortions.
Victorian Premier John Brumby stated that he did not expect Ms Broad’s bill to pass. He estimated that “it would probably get 11 to 12 votes” out of 40.9 On 20 August, then, Premier Brumby announced that the Victorian Government would seek advice on abortion law reform from the Victorian Law Reform Commission. He stated, “It is essential that the law reflects contemporary community standards and that it is simple, clear and transparent.”10 Ms Broad’s bill was withdrawn on 21 August 2007.
That, then, is the history to date. I offer four comments:
Firstly, I note that the Catholic Church has voiced its opposition to the decriminalisation of abortion. The bishops of Victoria issued a joint letter on 24 July 2007; Archbishop Denis Hart of Melbourne released a separate letter on 7 August.11
In their letter, the Victorian bishops insisted that moves to decriminalise abortion “would be a backward step for women and their families.” They noted that “Victoria has one of the highest abortion rates in the world with at least one in four pregnancies ending in abortion.” They therefore called on Victoria’s political leaders to find new ways to help women with unplanned pregnancies, and in this way “to reduce Victoria=s high abortion rate.” “Women,” they added, “need good counselling and support, healthcare, welfare and housing assistance. Provision also needs to be made for their educational needs so they can finish high school or university.” Finally, the bishops noted that “Catholics are ready to join with others in finding new and positive solutions to the widespread problem of abortion.”
In his letter, Archbishop Hart wrote, “I appeal to all that we acknowledge and protect the human dignity of each person from the very beginning of life to its natural end. This means that we not only preserve the life of the unborn child, but work tirelessly to care for and support mothers distressed by an unplanned pregnancy.” The archbishop noted that “in no way do I wish to downplay or disregard the terrible anxiety that mothers and parents can sometimes experience.” But even so, Archbishop Hart concluded, “I find it difficult to comprehend how we can legislate to decriminalise abortion, which will effectively deny protection to society's weakest members.”
Secondly, the Church’s opposition to abortion is above all because it involves the killing of the unborn. It is for this reason that the Second Vatican Council denounced abortion as an “unspeakable crime,” while Pope John Paul II confirmed that direct abortion “always constitutes a grave moral disorder.”12 Even so, as these two statements confirm, the Church is also concerned about the women who are affected by abortion.
Do women suffer physically and psychologically after abortion? Those who support abortion claim they do not; those who oppose abortion argue that they do. An important reference here is Selena Ewing’s Women and Abortion: An Evidence Based Review. This forty-two page paper thoroughly reviews the recently published research on this matter, so its conclusions are based not on opinion but on fact. And frankly, these conclusions are alarming. As regards physical harm, the study reports that after abortion there are “significant physical risks, including premature delivery, infection (which may lead to infertility), uterine perforation, placenta previa, and possibly miscarriage and low birth weight in future pregnancies.” It notes too that “there appear to be more deaths from all causes, including suicide and homicide, after abortion, compared with childbirth.” The study also reports substantial evidence of sometimes quite serious psychological harm after abortion. It is worth quoting at length:
"Ten to twenty percent of women suffer from severe psychological complications after abortion. Many more women experience emotional distress immediately after the abortion and in the months following, including sadness, loneliness, shame, guilt, grief, doubt and regret. Depression and anxiety are experienced by substantial numbers of women after abortion.
For a small proportion of women, abortion triggers Post-Traumatic Stress Disorder. After abortion women have an increased risk of psychiatric problems including bipolar disorder, neurotic depression, depressive psychosis and schizophrenia. Women who have experienced abortion also have an increased risk of substance abuse and self-harm."13 In recent years, the Church has emphasised its concern for women affected by abortion. As we reflect on this quite disturbing list of possible harms, this emphasis is very understandable.
Thirdly, I note that there is considerable community disquiet about abortion. Significant research on Australians’ attitude to abortion was commissioned by the South Australian Southern Cross Bioethics Institute in 2004. This survey was designed to reflect community attitudes to within 3 per cent. While it confirmed majority support in Australia for access to abortion, it also found that “64 to 73 per cent of Australians think that the abortion rate is too high while 87 per cent believe that it would be a good thing if the number were reduced.”14 “Only 15 per cent believe that abortion is morally acceptable when the foetus is healthy and there is no abnormal risk to the mother.”15 “99 per cent of the community believe that women contemplating an abortion should have access to counselling,” and “98 per cent... think that women should be advised of any health risks… before choosing an abortion.”16 However, “only 2 per cent thought abortion clinics would be good advisers,” and “only 9 per cent disagreed with the proposition that counselling should be independent of abortion providers… This suggests a low level of confidence in abortion providers to provide objective advice and accurate information.”17 “94 per cent think all the alternatives should be seriously considered” before a woman decides to have an abortion.18
The survey contains much more information, but it reaches an important conclusion: "Australians favour both genuine choice and lowering the number of abortions. Taken together this suggests that there is a very large constituency for social policy initiatives which enhance choice without restricting access… [T]he public’s strong desire for a reduction in the number of abortions is accompanied by a clear preference for this to be achieved by non-coercive means."19
Finally, then, I suggest that there are possibilities in the present situation. It seems likely that abortion will be moved from the Crimes Act to the Health Act. The Church cannot approve of such a move which treats abortion as if it were just another medical procedure. Even so, there are possibilities during this time of change to improve the status quo. I mention three, though others could be added. Firstly, there should be an independent record of the number of abortions performed in Victoria, and of complications or adverse events. The community is concerned about the number of abortions, and there cannot be sensible discussion of this without both these records. Secondly, there should be government-funded counselling independent of the abortion clinics for those who want to explore their options or are uncertain about continuing a pregnancy. These services should follow guidelines similar to those of the Federally-funded National Pregnancy Support Helpline. Not only would this address community concerns, but it would also offer women more chance of genuine choice. Thirdly, it is an accepted medical principle that a facility should not perform an operation unless it is able to manage possible complications. Do the abortion clinics fulfil this criterion? If not, should abortion be restricted from these clinics, and available only through public hospitals? The Australian community wants abortions to be safe. Perhaps the only way truly to guarantee this is restricting this serious operation to public hospitals.
With the laws on abortion changing, this is the time for concerned Victorians to speak to their state members about their hopes and concerns on this issue.
- Fr Kevin McGovern is the Director of the Caroline Chisholm Centre for Health Ethics, which is sponsored by Victoria’s Catholic hospitals. This article is reprinted from the Chisholm Health Ethics Bulletin. ----------------------------------------------------------------------------------------------------------------------------------------- 1 As well, Section 59 forbade supplying a woman with any drug or instrument which she intended to use for abortion. Similar laws were found in earlier Acts from 1837, 1828 and 1803. For the text of this Act, see http://www.swarb.co.uk/acts/1861OffencesAgainstThePersonAct.shtml
2 Section 66 parallels Section 59 from the 1861 law.
3 See the Levine ruling on R v Wald ( a case heard in 1971 by the District Court of New South Wales), and the Maguire ruling on R v Bayliss & Cullen ( a case heard in 1986 by the District Court of Queensland).
4 [1938] 3 All ER 615 at 619.
5 [1969] VR 667 at 672.
6 For more on the Menhennitt ruling, see http://en.wikipedia.org/wiki/R¬_v_Davidson
7 To view this bill and related documents, see http://www.legislation.vic.gov.au
8 As well as Sections 65 and 66, this included part of Section 10 which applied the offence of child destruction to abortion.
9 Ashley Gardiner and Jordana Borensztajn, “Abortion Showdown,” Herald Sun 21 August 2007, p. 7.
10 Peter Ker, “Brumby Takes Stand on Abortion,” The Age 21 August 2007, p. 1.
11 Both these letters can be accessed at http://www.melbourne.catholic.org.au
12 Vatican II, Pastoral Constitution on the Church in the Modern World (Gaudium et Spes), #51; John Paul II, The Gospel of Life (Evangelium Vitae), #62.
13 Selena Ewing, Women & Abortion: An Evidence Based Review (Women’s Forum Australia, 2005), 1-2.
14 John I. Fleming and Selena Ewing, Give Women Choice: Australia Speaks on Abortion (South Australia: Southern Cross Bioethics Institute, 2005), 3, 9, 15-17.
15 Ibid, 3, 10, 14.
16 Ibid, 4, 10, 19.
17 Ibid, 19.
18 Ibid, 4, 10, 20.
19 Ibid, 5, 21.
20 Note that these guidelines accord with the Preliminary Advice on Pregnancy Support and Counselling Services issued by the Australian Bishops’ Commission for Doctrine and Morals. For this, see http://www.acbc.catholic.org.au/bc/docmoral/200609101682.htm |
Perspectives 
