By Kath Gelber
On 18 April Justice Newman of the NSW Supreme Court handed down a judgment which has ramifications Australia-wide. In it, he confirmed that abortion remains illegal in NSW.
Abortion is, in fact, illegal in every state except South Australia. It is illegal because it remains on the Crimes Act. Women exercising their right to choose are forced to rely on the views of doctors or judges, who may interpret the laws in such a way as to make abortion accessible. As this case shows, they also may not.
In NSW a woman whose pregnancy remained undiagnosed for 19
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55D> weeks sued her doctors for damages on the basis that they were negligent and that their negligence forced her to carry through an unwanted pregnancy. By the time she found out she was pregnant, it was too late to have an abortion.
In finding against the woman, Justice Newman decided that she was claiming the "loss of an opportunity to perform an illegal act". He likened this to a would-be bank robber claiming damages for not being able to rob a bank. The means by which he drew this conclusion highlight important limitations to the accessibility of abortion in Australia.
Currently access is made possible through the common law precedents set by judges who found in favour of women in particular cases. In NSW this was the Levine ruling of 1972, in Victoria the Menhennit ruling of 1969 and in Queensland the McGuire ruling of 1986.
All these rulings specify conditions under which abortion may be considered legal. These include instances in which the woman's mental or physical health is at greater risk by continuing the pregnancy than by termination of the pregnancy. As the Newman decision in NSW shows, this is open to a great deal of interpretation.
Interpretation has been relatively broad. The estimated 80,000 abortions performed in Australia each year and the Medicare rebate provision testify to that. However, this access is limited by its reliance on common law. Newman's decision is counterposed to previous rulings. And reliance on common law means reliance on judges to make decisions about access to abortion — not women who are pregnant.
Ruling
Justice Newman pointed out that "abortion in NSW is still a criminal offence." He cited Sections 82 and 83 of the Crimes Act 1900 as evidence for this claim, and tested further the limitations of claims of danger to the physical or mental well-being of the woman concerned.
Because the woman had given birth to a healthy child and was now physically healthy, the judge decided the physical danger posed to her health by continuation of the pregnancy had not been sufficient to warrant termination.
He said that such dangers do not include "the normal dangers of pregnancy and childbirth". Yet abortion is a 15-minute medical procedure (when performed under a local anaesthetic) which is seven times safer than carrying a pregnancy to term.
In assessing the woman's mental well-being, Justice Newman took into account the fact that prior to giving birth the woman had not been referred to a psychiatrist by any of her doctors. Thus, the judge decided, there could have been no substantial risk to her mental health by continuation of the pregnancy. Even though the woman exhibited "symptoms of depression and anxiety" which caused her doctor to refer her to a psychiatrist after the birth, her reaction to the pregnancy was not sufficient to require treatment by a psychiatrist.
It was the judge's conclusion that since the pregnancy "did not involve a serious danger to her mental [or physical] health", a termination "would have been unlawful".
This judgment highlights the fact that as long as abortion remains on the Crimes Act, access remains at risk. As long as decisions about the "lawfulness" of abortion rest with judges and decisions about the "suitability" of termination rest with doctors, and not with the woman concerned, access remains at risk. Women remain unable to exercise fundamental control over their own reproductive capacity.
Once pregnancy was diagnosed, the woman's GP advised her that it was too late for her to have an abortion. This information is also incorrect. Although later term abortions are more complicated and certainly more expensive, they are possible. Legal precedents in the UK have led to an assessment of a 24 week maximum. Some doctors, due to the possibility of errors in assessment of length of gestation, opt for a maximum of 20 weeks. It seems it would have been possible for the woman concerned to have obtained an abortion at 19
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55D> weeks, had she been informed of the choices available to her. Instead, her doctor told her a late term abortion was "inadvisable" and she continued with an unwanted pregnancy.
The case highlights some of the problems women face within a health system that does not have women's needs as its focus.
Anti-choice
The anti-choice so-called Right to Life lobby have, predictably, hailed the ruling as a victory. They are seizing the opportunity to campaign more strongly against abortion rights. Spokesperson Margaret Tighe said, "Given this highly significant ruling, I call upon the premier ... the police minister ... and the attorney-general ... to take immediate steps to close Sydney's flourishing abortion clinics, as they are clearly operating outside the law".
The pro-choice movement has every reason to take them seriously. The anti-choice lobby continue to spread deliberate misinformation about terminations, to oppose sex education and access to contraception, particularly for young people, and to victimise women who seek access to abortion services and staff who assist in abortion procedures.
This case only furthers their cause, despite claims by Justice Newman that he was "not expressing any view relating to the moral issue which is of concern to the community". Clearly, his views are being taken very seriously, and his decision is having an impact.
The Women's Abortion Action Campaign called the decision a "badly mistaken judgment" which "emphasises irrefutably the urgent need for repeal of all abortion laws". They pointed out that repeated opinion polls show that a large majority of the population feels that abortion should be a woman's choice.
Spokesperson Margaret Kirkby spoke to Green Left Weekly about the decision and expressed concern at the particularly subjective assessment of the woman's mental and physical health were used by the judge. It seemed, she said, that rather than making a ruling on medical negligence, Justice Newman had made a ruling on abortion.
Justice Newman in fact included in his judgment a statement to the effect that, had the woman simply been claiming damages on the basis of the doctors' breach of duty towards her, he might have found in favour. Because she was claiming damages on the basis that she wasn't able to have an abortion, he found against her.
The case clearly highlights the need to repeal all abortion laws. Demands for repeal, however, need to be backed up by campaigns and activities on the ground.
Jill Hickson of the Abortion Law Repeal Campaign in Sydney said, "This decision underlines the need for the law to be repealed now, not to wait any longer. It illustrates women's access is not guaranteed as long as the law stays on the books."
Hickson also said that regarding medical negligence as insufficient grounds for claiming damages, simply because the proposed abortion was regarded as illegal, puts at risk other women who may seek compensation for medical negligence after terminations.
Majority support
Calls for repeal have been directed at the NSW minister for the status of women, Kerry Chikarovski. Chikarovski says she is not convinced of the need to change the Crimes Act. The office of the attorney-general has said that any changes to the legislation must be proposed by the minister for the status of women.
Labor MP Sandra Nori has said that "in the event that legislation is necessary", she will draw up and vote for a bill to legalise abortion. Independent MP Clover Moore has also said she will vote in favour.
Community support for the right to choose is enormous. A March 1991 survey conducted by Anderson McNair found that 81% supported a woman's right to have an abortion; only 12% opposed it. A Morgan Gallop Poll in 1982 which asked, "Should an abortion for a woman who had counselling be legal or illegal?" found 70% thought it should be legal. The same poll found men and women equally supported legal abortion. A survey in Queensland in 1991 found 56% of Catholics support women's right to abortion.
In 1992 the Uniting Church in NSW became the first Australian religious organisation to support a woman's right to choose a legal abortion. The decision was the result of three years' consultation within the church.
A spokesperson for the committee that drafted the policy, the Reverend Harry Herbert, said it reflected the social realities of failed contraception, human mistakes, poverty and medical problems. He said the decision should be made by the pregnant woman and not be left in the hands of doctors, lawyers, judges or the clergy.
Even before Justice Newman's decision, abortion rights were under threat from non-legal sources. In NSW only three metropolitan hospitals, all in Sydney, perform abortions. Under-funding puts access to hospital abortion at risk, while waiting lists increase health risks.
Two feminist free-standing clinics are in operation, Everywoman's and Bessie's. However, the clinics have difficulty finding doctors who are willing to perform the procedure since it has become downgraded and stigmatised within the medical profession. The clinics are used by rural and interstate women as well as women resident in Sydney. Some women travel from South Australia, and an estimated 1500-3000 Canberra women make the trip to Sydney each year.
In April 1993 a woman lodged a complaint with the NSW Health Department after her doctor refused to perform a termination at 20 weeks after a test revealed chromosomal abnormality. The woman had discussed the tests with her doctor when she was eight weeks pregnant and the doctor had initially agreed to perform an abortion if an abnormality was detected. Other cases have been reported of doctors and hospital staff refusing to allow an abortion to proceed.
Abortion is the only medical procedure which is a crime. It is the only medical procedure which doctors and other health providers are excused from providing if they oppose it on grounds of conscience.
Both the Liberal and Labor parties allow their members a conscience vote on the issue. The Australian Democrats and the Australian Greens also allow elected members a conscience vote, despite strong community support for repeal.
The anti-choice lobby is mobilising. Threats to Medicare provisions, physical and verbal harassment, attempts to define the beginning of human life, attempts to limit abortion to cases of incest and rape and pressure on the medical profession are all part of their campaign. It's urgent to mobilise in defence of women's right to choose and not leave it to judges or doctors. To do less would be irresponsible.