By Kath Gelber
SYDNEY — The debate over women's right to choose has continued in full force in NSW since the April 18 ruling by Justice Newman that a woman could not be awarded damages for being unable to have an abortion because the abortion would have been illegal. The woman had sued her doctors for negligence after they failed to diagnose her pregnancy until it was too late for her to have an abortion.
Anti-abortionists have picketed outside the Preterm abortion clinic in Sydney, the letters page in the Sydney Morning Herald has raged with pro- and anti-choice views, prominent academics and lawyers have made public comments calling for the law to catch up with reality and public opinion, and pro-choice activists are gearing up for a campaign to repeal abortion laws once and for all.
A number of prominent people have taken a public position. Justice Elizabeth Evatt, former head of the Family Court of Australia, has said that the abortion laws are "still in the 19th century" and that abortion "should not be a criminal offence".
Dr Brendan Nelson, president of the Australian Medical Association, has said publicly that women who choose abortion should have the right to professional operations, and that doctors should be able to perform abortions without being vilified.
Yet NSW attorney-general John Hannaford has said social and economic reasons alone are insufficient grounds for abortion and has threatened prosecution of doctors who perform the operation "illegally".
Although some have argued that prosecution is unlikely, in the current political climate it certainly is possible. The outcome of such a case would have important implications for abortion access, just as the 1972 Levine ruling did. It could further limit access, or alternatively further liberalise the legal interpretation.
More importantly, though, the prospect of a new test case for abortion access raises again the question of reliance on a sympathetic judge to bring down a decision that can be interpreted by sympathetic doctors to allow abortions to be performed more or less on demand. This would not allow a woman to make the decision for herself. A common law ruling is in fact insufficient to implement a woman's right to choose, as long as abortion remains on the Crimes Act.
The Levine ruling itself is clearly very fragile. It came about when the government tried three doctors for procuring abortions. During the trial, it was made clear that the patients had consented to the procedure, and their circumstances of hardship were discussed. Levine decided that the pregnancies had threatened the well-being of the patients concerned, and the doctors were acquitted.
This ruling was tested 12 months later with the trial of a Macquarie Street gynaecologist. The defence rested on the "belief of the medical practitioner" that termination of the pregnancies of the patients concerned was legal. The jury were unable to reach a unanimous verdict, and a mistrial was declared.
During both these trials the government and police had attempted to implement the law as it stood — a law which remains unchanged today. Premier Askin at the time announced that the cabinet was "against legalised abortion". A squad of 30 police was maintained to investigate abortionists. At no time did the government concede that abortion had become legal or seek to change the law.
That is the basis for the confusion today. One judge says you can have an abortion legally, another says the opposite. The fact that the Crimes Act remains unchanged in regard to abortion ,is the source of the problem.
Community and women's groups are calling for repeal now. Spokesperson for Women's Abortion Action Campaign Helen Westwood said "It is time the law caught up with community attitudes and the reality of women's lives".
A meeting of pro-choice activists and all interested people has been called for May 11 to discuss strategies for a campaign to repeal all abortions laws in NSW. Such a campaign at the moment would enable those in favour of a woman's right to choose to have their opinion heard, and would help build broader community support to repeal the laws.
But most importantly, it is a campaign that can be won.