Repeal abortion laws
Within the next few months, the woman involved in the medical negligence case (CES vs Superclinics) will have to argue the legality of abortion in NSW to the High Court. The outcome could have implications nationally for a woman's right to choose.
The case involves a NSW woman (CES) who visited the Superclinic five times over a two month period at the end of 1986 and beginning of 1987. The doctors failed to diagnose her pregnancy until she was 19½ weeks pregnant. At that point, she was wrongly informed that it was too late to have an abortion. The woman subsequently sued her doctors for damages on the basis that their negligence forced her to carry through an unwanted pregnancy.
Justice Newman, the judge presiding over the case, ruled that what CES wanted to do was illegal, and therefore she was not entitled to any compensation. He likened this to a would-be bank robber claiming damages for not being able to rob a bank.
In January 1995, CES won the right to appeal that decision. A counter appeal has since been brought forward by Superclinics and one of the defendant doctors. In response to this challenge, CES will have to persuade the High Court that the abortion denied her was a lawful one.
In every state except South Australia, abortion remains in the Crimes Act. Currently access is possible through the common law precedents set by judges who ruled 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.
Levine stated that an abortion is lawful if a doctor believes that "the operation was necessary to preserve the woman involved from serious danger to her life or physical or mental health which the continuance of the pregnancy would entail", and that in regard to mental health the doctor may take into account "the effects of economic or social stress that may be pertaining at the time".
These rulings resulted in an improvement in access and availability of abortion. Levine also specified that two doctors' opinions were not necessary and that abortion does not have to be performed in a public hospital. This allowed the establishment of a number of free-standing clinics in major cities. However, access and availability are far from adequate. Women not living in major cities are forced to travel, making it very expensive. Services in Tasmania are appalling, forcing women to travel interstate.
But even this inadequate availability is under threat. Access to abortion is limited by its reliance on common law. This results in a reliance on judges to make decisions about access to abortion — not the women who are pregnant.
This case highlights the fact that as long as abortion remains in the Crimes Act, access remains at risk. While 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, and women remain unable to control their own reproductive capacity.
By Trish Corcoran