The Other Abortion Myth—The Failure of the Common Law

Bioethical Inquiry (2009) 6:69–81 DOI 10.1007/s11673-008-9131-4

The Other Abortion Myth—the Failure of the Common Law

Kate Gleeson

Received: 12 December 2007 /Accepted: 24 November 2008 / Published online: 18 December 2008 # Springer Science + Business Media B.V. 2008

Abstract The 2006 trial of Suman Sood put criminal Introduction abortion on the public agenda for the first time in 25 years in NSW. Response to the case highlights When Dr Suman Sood was charged in 2005 with tenacious myths about abortion law in Australia; unlawfully procuring a miscarriage Anne Summers namely that the common law “is an ass” that allows and others feared “the entire legal foundation of for abortion only by way of a lack of application of abortion in this state could be in jeopardy” (Summers the law. By briefly explaining the history of abortion 2005, 13). Sood seems to be the first doctor in New in Australia, I argue that the Sood case does not South Wales charged with an abortion related offence represent a general failure of the common law to since 1981, and is certainly the only doctor since that allow abortion, nor does it support the popular myth time to be convicted of unlawfully procuring a that abortion is “technically” illegal, or that doctors miscarriage (R v Sood [2006] NSWSC 1141 (31 who perform abortions have historically been the October 2006), hereafter “Sood”). The circumstances target of the criminal law in Australia. I show that of the abortion were sensational in that it was contrary to myths promoted particularly around the performed at 23 weeks, the woman miscarried at 1998 Western Australian reforms, abortion has long home on the toilet, and the attending paramedic had been lawful in Australia, and the common law has to retrieve “the baby” out of the toilet and check for merit compared to other regulatory regimes. Hence, vital signs (Jacobsen 2006a, 4). As Summers ob- arguments for alternative abortion regimes should not served, Sood is “hardly a poster girl for the industry”, depend on myths which are shown to be unrepresen- and it was worrying for all providers that the case tative of the political and legal situation in Australia. might overshadow that most work safely and within the law (Summers 2005, 13). Sood was found to have Keywords Abortion . Law . Sood . Common law worked “outside the law” in her failure to properly counsel the woman who volunteered she wanted and sought the termination, but claimed she was not advised that the prostaglandins she was administered might cause her to miscarry at home, which they did the following morning. Sood denied administering the * K. Gleeson ( ) drugs, but the charges were upheld. The case attracted Division of Law, Macquarie University, ’ Sydney, Australia attention especially once the press exposed Sood s e-mail: [email protected] long history of professional complaints with headlines 70 Bioethical Inquiry (2009) 6:69–81 like “Medical menace ran theatre of blood” (Pollard perform abortions have historically been the target of 2006), and the Sydney Morning Herald (SMH) the criminal law in Australia. I show that contrary to encouraged her other “victims” to come forward and myths promoted particularly around the 1998 Western tell further horror stories of her treatments (Jacobsen Australian reforms, abortion has long been lawful in 2006b 1). this country, and the common law has merit compared Summers was not alone in her fears that as a result to other regimes. Hence, arguments for alternative of the case, abortion would be seen as illegal. Leslie abortion regimes should not depend on myths that are Cannold, for instance, portrayed the conviction as a shown to be unrepresentative of the political and legal worrying indication of the vulnerable status of situation in Australia. Moreover, arguments for the abortion in NSW, and used its example to argue moral characterisation of abortion must be made on against the common law regime which she criticises their own merit, not by way of a proxy critique of the for failing to protect abortion (ABC 2006). This is a criminal regulation of abortion. What the Sood not uncommon view of NSW abortion law: vulnera- episode does highlight is the importance of accuracy ble, unclear and untested. Abortion in the common rather than mythology when commenting on Austra- law states has frequently been described as “techni- lian abortion law. The article is structured as follows. cally illegal” and contemporary widespread access to First, I briefly explain the circumstances of the Sood abortion as depending on non-enforcement of the law case, and its representation in the media. Next, I (Cica 1991, 48), or authorities “turning a blind eye to explain the history of abortion in NSW, focusing on abortion” (Cannold and Calcutt 2001). For example, the case of George Smart in 1981. Third, I explain the when Labor MP Candy Broad introduced a private history of the Western Australian abortion reforms in member’s bill to commence abortion law reform in 1998, and how these have been portrayed erroneously the Victorian parliament in 2007, she characterised as shifting abortion from a category of criminality to abortion in that state as currently “safe, if not legal” categories of legality and morality, and I explain the (Legislative Council, 19 July 2007, 2144). In limitations of this model for law. Lastly, I explain how response, ABC TV’s Lateline ran a story describing myths around both the Western Australian law and the abortion in NSW, Victoria, Queensland (and even the criminal law in NSW have been used to build a case legislated jurisdictions of Tasmania and South Aus- against the common law, and show how this tactic tralia) as “still technically unlawful but permitted on promotes unnecessary confusion around the legal maternal health grounds” (ABC 2007). status of abortion in Australia. While this has been shown not to be a fair characterisation of the situation (Pringle 1997), response to the Sood case highlights tenacious myths R v Sood about abortion law and politics in Australia; namely that abortion is and has always been illegal under the Suman Sood routinely performed abortions at her common law. Ironically, these myths tend to be Fairfield practice, the Australian Women’s Health perpetuated by those who support women’s access Centre. In this case, a 20 year-old woman (LT) sought to abortion, in order to bolster arguments for abortion a termination at around 23 weeks; LT’s cousin phoned to be governed by acts of parliament. In the case of a number of different medical facilities on her behalf Cannold, for example, criticising the criminal regime to inquire about an abortion before Sood agreed to of abortion can be seen to support her greater goal of perform the procedure. Most doctors in NSW abortion the moral characterisation of abortion. But this tactic clinics will not perform terminations past 20 weeks provides obstacles to understanding the status quo of due to insurance restrictions, although some doctors reproductive health services and thus progressing seem to believe there is a legal obstacle to termi- them. nations at this later stage, when there is not (R v Sood By briefly explaining the history of abortion in [2006] NSWSC 695 at 696). On 18 May 2002 Sood Australia, I argue that the Sood case does not met with LT and her cousin, examined the ultrasound, represent a general failure of the common law to and agreed to perform the abortion for $1800. Two protect abortion, nor does it support the myth that days later LT returned to the clinic, was administered abortion is “technically” illegal, or that doctors who a prostaglandin, given some more to take orally, and Bioethical Inquiry (2009) 6:69–81 71 told by Sood to come back the following morning for problems with the criminal law in NSW (and other the abortion procedure. Overnight, LT miscarried in comparable states) and that abortion must be removed her toilet at home. from Crimes Acts and Criminal Codes and be In NSW the Levine ruling directs that the lawful- regulated by Health Acts (ABC 2006). Since the ness of procuring a miscarriage rests on the doctor’s publication of The abortion myth: Feminism, morality honest and reasonable belief about risk to the woman and the hard choices women make (1998) Cannold of continuing the pregnancy, made on assessment of has promoted herself as an authority on abortion in factors such as health, wellbeing and economic Australia, particularly the sociological and ethical circumstances (R v Wald(1972) 3 DCR (NSW) 25). aspects, but also the law. The book was inspired in In 1995 Kirby P clarified that in forming this belief a part by Naomi Wolf’s New Republic article that doctor may consider both the woman’s immediate and argued that “feminism” has lost its way in refusing foreseeable situation (CES v Superclinics (Australia) to understand abortion in terms of morality (Wolf Pty Ltd (1995) 38 NSWLR 47). Sood was found not 1995). Similarly, Cannold argues for abortion to be to have formed reasonable belief because although a understood in terms of morality, rather than rights or nurse at the clinic conducted a medical risk assess- choice, and criticises (flailing) pro-choice feminism as ment that the woman signed, Sood failed to assess her implicated in “the slow and arduous process” of situation through counselling or even questioning abortion law reform in Australia (Brankovich 2001, about the circumstances of the pregnancy. Justice 87). Simpson in the Supreme Court was satisfied that it ABC journalist Damien Carrick suggested that would have been open to Sood to have formed the Sood reflects a criminal prosecution in an “extreme required belief, given the woman’s objective circum- case” with no implications for the “society-wide stance, but that she failed to undertake the requisite consensus that we have around access to termination”, assessment. Sood’s sentence, a bond of 2 years, as Simpson J arguably had instructed at trial. But reflected that the offences were not of the worst Cannold portrayed NSW as, apparently, regularly category, and Simpson J was careful not to use the prosecuting doctors: “in order not to make the law criminal law to punish for “callousness, negligence, an ass, and if we want to stop these prosecutions we lack of professionalism, or excessive charging” (Sood need to remove the law from the books”, she argued at 32). Sood was acquitted of the unprecedented use (ABC 2006, emphasis added). For Cannold, “these of a charge of manslaughter in the case of abortion. prosecutions”, are the product of an untenable legal Her appeal for the abortion convictions was scheduled situation that depends on the discretion of the for November 2007 (AAP, 26 July 2007), but it was prosecutor not to apply the law other than in extreme withdrawn. (In December 2007 Sood had convictions cases. As noted, this is a common perception of NSW overturned for 56 cases of Medicare fraud). abortion law: that “non-enforcement of the law”, rather than the law, is responsible for the state’s flourishing abortion sector (Cica 1991, 48). Despite The Law as Ass: Cannold’s Appraisal her emphasis on the Director of Public Prosecutions (DPP), Cannold suggested it was “conservative state During Sood’s criminal trial Simpson J instructed the politicians” who posed the real threat to women and jury that it was “no part of the Crown’s case to doctors (ABC 2006), but still she argued for regula- suggest that pregnancy termination is necessarily tion via the Health Act that would be drafted at the unlawful”, only that Sood had failed to meet the mercy of these politicians. requisite test for reasonable belief in this instance (Rv On the ABC Cannold noted the lack of access to Sood (RulingNo3)[2006] NSWSC 762 (15 abortion services in rural areas and suggested that this September 2006) at 15). There is nothing to suggest is connected to the criminal status of unlawful this reasoning has any bearing on the judgments that abortion. Abortion access is affected by many factors; govern NSW law: Levine J in 1972 or, arguably, not just the law. In the USA, for example, abortion is Kirby P in 1995. On the ABC Radio National Law “legal” but access is notoriously compromised by Report however, Leslie Cannold portrayed the Sood social, political and economic factors. In Australia the judgment in an urgent light, stating that it indicates insurance industry and licensing requirements impact 72 Bioethical Inquiry (2009) 6:69–81 heavily on smaller clinics. But Cannold’s agenda set the 1971 precedent that governs NSW abortion seems broader than this concern anyhow, as suggested law, was to hear the case, but suffered a heart attack by an article she wrote about Sood for The Age during that eventually killed him. At the new trial, charges the time of the trial, “The abortion case that could set were reduced to 24, the jury could not agree and an ugly precedent for Women”, on 11 August 2005. Smart was acquitted on all counts (Coleman 1991, Cannold promoted a sense of urgency and panic 220). Australian juries have been instrumental to asserting that although Sood’s was the “first such securing the status quo in regard to abortion in prosecution in NSW since 1971,…Australia has a declining to convict doctors: as have police and long history of prosecuting women and doctors over politicians in generally declining to prosecute or abortions and, because of the consistent refusal of target them. Smart continued to practice at his politicians to legislate progressively on the issue, Macquarie Street clinic. In 1978, aged 71, he agreed common law rulings have had a profound impact on to perform the abortion on a 17 year-old girl whom he the development of abortion law” (Cannold 2005, believed had become pregnant when raped, and was 15). This does sound alarming, as though women and around 18-20 weeks pregnant. She had been refused doctors are consistently under threat (as though the an abortion by several other doctors due to the stage common law is the problem), and if accurate it might of the pregnancy, which doctors in court estimated be understood to support an argument for abortion to was in fact somewhere between 22 and 28 weeks. feature in health legislation. But it is not accurate. Smart encountered complications removing the foetus and the girl had to be rushed to hospital where she underwent a hysterotomy operation to complete the Abortion in New South Wales: George Smart procedure. Smart was arrested and convicted for unlawfully procuring a miscarriage. In court it was To start with, the Age piece overlooks the 1981 argued that he had not completed the requisite test to conviction for procuring of notorious Sydney abortion- justify a legal abortion, in that he had not asked the ist Dr George Smart, after his patient was damaged to girl about the state of her physical and mental health the point of requiring a hysterotomy, a conspicuous (SMH 10 May 1980, 3). Smart was arguably a worse oversight because at first glance Smart’scaseseemsto offender than Suman Sood in the harm he caused his support a theory that doctors have long been prosecut- patient, and yet his sentence was the same: a two-year ed. Smart was an institution in the Sydney abortion bond. He appealed his conviction but having earlier sector throughout the 1960s and 1970s. In 1974 he been diagnosed with Parkinson’s disease, and in ill claimed to have been present at over 15,000 abortions health, Smart died before the trial was to be held over 14 years (SMH 10 May 1977, 5). But by the time (Coleman 1991, 220). of his conviction in 1981, Smart had few friends in the medical profession to support him. He had already been suspended from practising for a year in 1977 for Abortion Before Levine: A Lack of Prosecutions contravening Australian Medical Association rules by advertising his medical abortion services as far a field The Smart case is important because it confirmed the as New Zealand and Papua New Guinea, where Levine Ruling, prior to Sood. It also highlights the abortions were difficult to access. Increasingly, as he general acceptance of abortion in Sydney (and aged, Smart was considered to be reckless and Australia), except for dangerous procedures. Estimates dangerous when performing abortions. State Labor of the annual abortion rate in Australia for the 1950s MP and president of the NSW Abortion Law Reform and 1960s range from around 90,000 to 150,000 Association, George Petersen, called Smart a “butcher”, (Chappell 1968, 12), but very few prosecutions were and personally blamed him for several abortion related made. In NSW for instance, Karen Coleman indicates deaths; in 1961 Smart was questioned at the inquest of that for the entire decade of the 1950s, the SMH noted a woman who was found dead in the flat of another 23 individuals who were charged with abortion related doctor, Reginald McFadzean (Coleman 1991,130). offences, with most cases involving the death of the In 1972 Smart was sent to trial on 54 counts of woman, or her serious injury (1991, 130). Most unlawfully performing abortions. Justice Levine, who defendants were acquitted. Male practitioners—doctors Bioethical Inquiry (2009) 6:69–81 73 and chemists—apparently were always acquitted. Doc- launched numerous prosecutions: a raid that culminat- tors were so untouchable they escaped manslaughter ed in one trial, the Heatherbrae or Wald trial, which convictions despite, in the case of McFadzean, the also put an end to the prosecution of doctors (RvWald woman having been found dead in the doctor’sflat (1972) 3 DCR (NSW) 25). Heatherbrae was raided on (Coleman 1991, 130). From 1959 to 1969 in NSW, 11 May 1970 after former police officer, Federal Labor none of the 22 persons convicted of related offences Member Bert James, “exposed” the clinic when its was a medical practitioner (Petersen 1998, 65). Coleman management refused to pay a detective (Petersen 1998, explains that Australia has a long history of allowing 65). It was well known as the best run clinic in Sydney for abortion services, at least from the 1900s, due in with the most professional staff, and it did not pay part to a lack of will to convict among working-class bribes. The trial was unlikely to secure a conviction. police and juries (1991, 133). It was generally under- The doctors were professional and concerned; the stood since Bourne in 1938 in England, that abortion female witnesses were tragic and sincere; the police was permissible in some circumstances (King v Bourne had been brutal in their raid; unsurprisingly Judge [1939] 1 KB 687). The Australian Medical Association Levine had both Bourne and Davidson in mind, and advised its members to follow the direction in Bourne— the jury did not convict. The years between 1968 and to operate in consultation to save the woman’slife, 1970 were certainly not good years to be an abortionist broadly interpreted to include psychological health on the east coast of Australia, and given the potential (Chappell 1968,11)—and the area was “grey” enough for exploitation of women, not good years to require an not to warrant state scrutiny of doctors or, apparently, abortion (Wainer 1972). But this reactionary moment of women. Barbara Baird suggests that sometimes in corrupt state governance that ended with two women in South Australia were charged with performing complementary affirmations of legal abortion does their own abortions, because doctors in this state were not support a theory that Australia has a long history less likely than others to perform them (Baird 1998), but of prosecuting women and doctors over abortions. in the other states and territories there is no evidence The Levine ruling is sometimes said to have ended that 20th century women were charged with offences prosecutions for abortion in NSW (until Smart) but relating to their own terminations (Kirkby 1998, 313). they continued after 1971. Where they concerned On the contrary, if a case against a “backyarder” was to medical practitioners charges related to conspiracy, proceed, usually women’s testimonies and cooperation and none were upheld. Only “backyarders” were were sought. charged with procuring. The failure to convict in the By the 1960s this tacit situation allowed for police case of Smart in 1972 is thought to have discouraged corruption to set in at the direction of the Askin the Askin-era police from pursuing doctors after the government in NSW, and under Bolte in Victoria. There initial purge of 1970. While the Heatherbrae service is no reason to assume that police corruption preceded was faultless, Smart was not, and still the jury did not the climate that allowed doctors to operate unfettered. convict. Whitlam’s introduction of Medibank put a Ironically, it was only the corruption of the police stop to the backyard trade: Preterm opened in Sydney services that finally led to the prosecutions of doctors in 1974 and offered services for $8 net (Coleman in Melbourne and Sydney in 1968 and 1970. Famous- 1991, 220), and once the Wran government was ly, Dr Betraim Wainer exposed Victorian corruption instated in 1976, all outstanding charges from the and tried to expose it in Sydney (Riseman 2005,14– Askin era were no-billed. It was only the disaster of 15). Police raids were commenced in Melbourne in George Smart that brought abortion back in contact 1968 to “prove”, as Inspector Holland of the homicide with the law in 1980 and it, like the case of Sood, squad declared, the police “were not being bought off involved a female complainant who testified she had by abortionists” (in Barker and Larkin 1968, 5). been harmed by the procedure. Holland instigated a purge on doctors that culminated in the Davidson trial of 1969 that produced the Menhennitt ruling on lawful abortion and saw almost The Other Abortion Myth: Illegality all other outstanding charges dropped (R v Davidson [1969] VR 667). In 1970 NSW formed the abortion Abortion has arguably been lawful in Australia at squadthatpromptlyraidedmanypremisesand least since 1939 and Bourne. Although the English 74 Bioethical Inquiry (2009) 6:69–81 authority was contested by Inspector Holland to reasonable skill and care, he aborts a woman in the justify his raids on clinics in 1968 (in Barker and belief that such action is necessary to prevent her Larkin 1968, 5), Holland was shown to be wrong becoming a ‘physical or mental wreck’” (ALRA about Bourne, when Justice Menhennitt affirmed its 1974, 6). In 1975 the first free-standing abortion persuasive authority and applied its reasoning to clinic opened in Perth (Coleman 1991, 257). Victoria. Menhennitt J noted that the different child There seem to be no recorded prosecutions (not destruction provisions in England and Victoria meant involving the death of the woman) until 1998 when a that Victorian abortion law was different from English Perth doctor and anaesthetist were arrested after a boy abortion law, but he ruled that the test for lawfulness announced at school that his mother “had a baby in pronounced in Bourne involving a doctor’s reason- the fridge”. Following an abortion, the woman stored able belief was correct, and that the accompanying the products of conception in her freezer because she essential element of proportionality in the Victorian law intended to bury them in accordance with a Maori “underlay what Macnaghten J said in R v Bourne” (Rv rite. The boy’s teacher contacted the police and they Davidson [1969] VR 667 at 772 per Menhennitt J).1 arrested Drs Victor Chan and Hoh Peng Lee. Like Strong myths persist, however, that abortion was Sood,andSmart, the circumstances of the case illegal in Australia prior to 1969 (or 1972 in NSW, appeared sensational (but in this instance involved 1986 in Queensland, and 1998 in Western Australia no female complainant), and like Sood, the charges and so on); that in the common law states it is still were said to concern a failure to counsel the woman “technically illegal”, and in the case of Cannold at who had sought the abortion (Powell 1998b, 11). least, that Australian doctors have been routinely Attorney General Peter Foss advised that there had prosecuted for performing abortions. These myths been no change in policy and that the case did not might be thought to aid the case for abortion law “herald a police crackdown” (Cica 1998a,89). reform, but really they just distract from the truth. Nonetheless, the Australian Medical Association and Abortion law reform, if sought, should be sought with the King Edward Memorial Hospital threatened that the facts in mind, not least for reasons of credibility. practitioners had withdrawn all abortion services, to The trial of Suman Sood does not represent a long be suspended until the laws were changed (O’Brien standing (or short-term) purge of doctors. 1998, 4, Le Grand 1998, 6). The health service fell A primary focus for these myths is Western into crisis and rather than allow the case to go to trial, Australia. Similar to NSW and Victoria’s criminal new legislation was proposed. Both the Coalition provisions, the Western Australian Code provisions of government and Labor MLC Cheryl Davenport 1897 were modeled on the English Offences against introduced amending legislation, with Davenport’s the Person Act 1861 that made it a felony to succeeding (in a heavily amended form). On 30 July unlawfully procure a miscarriage. The law appears 1998 the charges against Chan and Peng Lee were not to have been tested at a higher court in the dropped as “not in the public interest” (Mark 1998) 100 years from 1897 (that is recorded). Following and the Western Australian law lost the opportunity to raids on the Perth Abortion Information Service in be tested to the disappointment of some doctors who 1974, where no charges were laid, and in the absence would have welcomed a trial to set precedents in line of a judgment on the matter, the WA Attorney with the eastern states (McGregor and Price 1998, 5). General Thomas Evans clarified the authority of both Despite the statement of the Attorney General in the Levine and Menhennitt rulings for the Code. 1974, and despite the law not having been tested, the Drawing on the wording in Bourne he stated in 1974: status of abortion in Western Australia prior to 1998 is “the view is that a medical practitioner acts lawfully typically described as “illegal”. For instance, the West (i.e. commits no criminal offence) where, with Australian Association for the Legal Right to Abor- tion (ALRA 2008) states on its website: “until May 1 Similarly, once Queensland law was tested in 1986 it was also 1998 abortion was illegal in WA under Sections 199, found to allow abortion (R v Bayliss and Cullen (1986) 9 Qld 200 and 201 of the WA criminal code. Women and Lawyer Reps). The perception of illegality impacted on ” Queensland abortion provision, not the law itself (Wiseman their doctors risked prosecution and 14 years in jail 2006, 23) (http://users.bigpond.net.au/alra/). Cannold and Cal- Bioethical Inquiry (2009) 6:69–81 75 cutt described abortion as “still being classified as Shifting the Debate from Crime to Morality illegal under the WA code” prior to 1998 (Cannold and Calcutt 2001). The myth that abortion was illegal in Western Section 199 of the Criminal Code of Western Australia was fuelled dramatically by the withdrawal Australia stated that, of medical services in 1998, and the urgency with which the new legislation was tabled in parliament. In Any person who with intent to procure the the second reading speech of her proposed legislation, miscarriage of a woman, whether she is or is Cheryl Davenport reiterated her maiden speech of not with child, unlawfully administers to her or 1989, stating causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any Here the law is not conforming to existing other means whatsoever, is guilty of a crime and practice. As we all know, abortion is readily is liable to imprisonment with hard labour for available here for those who know how to get fourteen years (emphasis added). access to the services. However, the doubtful The other abortion sections—200 & 201—were legal position means the situation in Western worded in the same manner and related to self- Australia is far from satisfactory. “ ” abortion and means other than poison or noxious According to the Western Australian Criminal things. Like the Crimes Acts of NSW and Victoria, Code, as amended in 1913, induced abortion is the Western Australian abortion provisions did not illegal, except if it is carried out to preserve the “ ” use the term illegal . Bourne (and the Menhennitt life of the woman concerned. That law has never and Levine rulings) rests on the reasoning that just as been subjected to legal interpretation in the way the performance of some abortions is unlawful, the it has in other Australian States where abortion performance of some abortions is lawful. It is the has been made legal by legal judgments. doctor’s belief and actions that define the crime, and the legal status of a procedure; the lawfulness of an The idea that abortion was legal “only to preserve abortion is adverbial, not adjectival (CES v Super- the life of the woman” (Cannold and Calcutt 2001) clinics (Australia) Pty Ltd (1995) 38 NSWLR 47 at seems to have been derived from Section 259 of the 68 per Kirby P). Hence Justice McHugh in the High criminal code, which outlined the lawfulness of Court argues that it is “loose thinking” to talk about performing a “surgical procedure upon any person an unlawful (or illegal) abortion (Superclinics Aus- for his benefit, or upon an unborn child for the tralia Pty Ltd v CES & Ors S88/1996 (11 Septem- preservation of the mother’s life”. The wording of this ber1996) per McHugh J). provision suggests it related to child destruction There is no reason to assume that had the Western (Section 290) rather than miscarriage, all related Australian provision been tested in the case of Chan, this offences of which were grouped together in sections reasoning would not have been applied. In 1974 it was 199–201. Western Australian child destruction provi- argued it already did apply, and in 1998 the courts had sions were modelled on those of the English Draft the added authority of Bayliss (RvBaylissandCullen Criminal Code Bill of 1879 that was not enacted (but (1986) 9 Qld Lawyer Reps) and CES (CES v Super- the offence was later enunciated in the English Infant clinics (Australia) Pty Ltd (1995) 38 NSWLR 47). The Life Preservation Act 1929). Section 259 was cited in Bayliss judgment is particularly helpful because it the Attorney General’s advice of 1974 that authorised applied to the Griffith Code, on which the Western the Bourne judgment for Western Australia. There- Australian Code is based. On his arrest, Dr Chan was fore, either the section did not relate to abortion confident the police had “picked the wrong case”;he originally (my interpretation) or, nonetheless, as of would be acquitted because “this was the perfect case 1974 the broad interpretation of Bourne applied to of legal abortion, where the patient was under this section as well as the miscarriage sections. enormous stress at the idea of having another child” Hence, the idea that in 1989 abortion was illegal (Illawarra Mercury 1998, 2). But once the charges except when performed to preserve the life of the were dropped this clarification was not attempted. woman is questionable. 76 Bioethical Inquiry (2009) 6:69–81

The 1998 legislation was presented as shifting the accurate. Possibly the Health Act is preferable, but it regime from criminality to legality, a theory that was is not preferable for the reasons suggested above, not contested in parliament. Reading the debates of because they are erroneous. 1998, it should be unsurprising that Cannold’s The abortion myth is quoted. The book “found itself” on the reading lists of WA parliamentarians and pro- The Western Australian Act: Liberal choice groups who “began to deploy the idea of and Progressive? women’s moral choice in abortion decision making” during the debate (Brankovich 2001, 89). Cheryl Given the Western Australian outcome however, it is Davenport recommended it as “an excellent refer- not clear that the Health Act is necessarily preferable ence” (10 March 1998), and although she did not talk at all. The Western Australian Act was repeatedly of “morality” per se, she asserted that abortion would referred to at the time of enactment as “the most be “for each woman one of the hardest choices she liberal abortion law in Australia” (Cannold and will make in her life, but she will not have made that Calcutt 2001; Rankin 2001, 247, 2003, 327, Stephen decision frivolously” (10 March 1998). Labor MLA 1998; Cica 1998b), in the press and by academic Diana Warnock cited the book and promoted Can- commentators. Lisa Teasdale could be said to have nold’s view of the law, that “women should be trusted gone overboard when twice in one article she called by society to make a moral choice in this issue” (17 the legislation “the most liberal” in Australia, and March 1998). Thus despite Davenport’s strong argu- once the “most progressive” (Teasdale 1999, 63, 72 & ment for women’s “choice to make an informed 98). The label seems to relate to one justification decision which is legal” (10 March 1998, emphasis outlined in Section 334 of the Act that provides for added) Jasmina Brankovich describes the Western abortion if (a) “the woman concerned has given Australian debates as producing a “diverse web of informed consent”. This, for Davenport, represents competing meanings of morality; most importantly, “basically choice” on behalf of the woman (Davenport the parliamentary field became the site of a powerful 1998,304). construction of women’s morality” (Brankovich 2001, The alternative justifications are: 89. Original emphasis). Framing abortion politically in terms of morality is a dramatic departure from the (b) the woman concerned will suffer serious person- legal tradition of the preceding fifty years post- al, family or social consequences if the abortion Bourne that rested on medical risk. Rather than allow is not performed; or the WA courts to re-affirm the authority of Levine (c) serious danger to the physical or mental health of (and Bourne) on risk, it is arguable that parliament the woman concerned will result if the abortion instead moralised the issue. is not performed; or Davenport’s aim was to remove abortion from the (d) the pregnancy of the woman concerned is causing Criminal Code, but in parliament this appeared to be serious danger to her physical or mental health. untenable and she conceded to having abortion All seem superfluous (or simply political), given regulated instead by the Health Act (Davenport that the woman’s informed consent (option a) must be 1998, 300). This tactic, the Health Act, is Cannold’s sought for each to be valid, unless she is unable to suggested response to Sood, and the idea she provide it in the case of option d. promotes about the prosecution of doctors helps to The Act is also praised for its “clarity”, as opposed support her case. Claiming that abortion was illegal to the Common law or Code jurisdictions (Teasdale prior to 1998 (and emphasising the maximum 1999, 74), which are criticised by Cannold and others penalty) as ALRA does; asserting that Australia has who do not like the idea that the common law has had a long history of prosecuting doctors and women as “profound influence” on the legality of abortion in Cannold does; and arguing for abortion to be Australia. Her warning about what the Sood convic- understood in terms of women’s morality, as Cannold tion might do, back in August 2005, continued: and her followers do, appears to make a case against criminal provisions for abortion, therefore, perhaps a It will also give a new millennium stamp of case for the use of the Health Act. If only it were approval to the law's patronising contempt of Bioethical Inquiry (2009) 6:69–81 77

women's capacity to make important moral have been formed. But because the crime of abortion decisions for themselves and by themselves, in NSW concerns doctors this is interpreted as without judicial approval or medical oversight. “illiberal”, patronising and demeaning of women as Such a reconfirmation of women's status as incapable of making (moral) decisions for themselves. second-class citizens in need of patriarchal Lisa Teasdale describes the different situations as guidance could be felt across Australia. Not just follows: because of the anti-choice rabidity of powerful In Victoria and New South Wales, following the players in the Howard Government, but because common law’s wide interpretation of the crimi- of its potentially persuasive effect on states with nal law provisions, a woman may obtain an similar legal frameworks. abortion after having consulted only one practi- Reconfirmation of the legal status quo in NSW, tioner. However, the difference in Victoria and in other words, might lead other states, like New South Wales is that the decision is Victoria, to affix fresh seals of approval on their technically the doctor’s whereas in Western existing abortion laws. A particular worry is that Australia the decision is the woman’s once the the Bracks Government, now modernising the formal requirements have been satisfied (1999, criminal code, might leave Victoria's archaic 73). abortion statutes untouched (2005, 15, emphasis The “technical” difference does seem rather “tech- added).2 nical”. In the Western Australian Act, as Teasdale Cannold configures abortion as a moral, rather than acknowledges, the “formal requirements” mean that a medical or reproductive health decision of women, woman may only “decide” to have an abortion after but the Victorian Crimes Act (not Code) to which she having been addressed by a second practitioner (not refers bears no relevance to morality in the sense that the one who will perform the abortion, nor one who she means, of women’s personal values. Nor did the might assist the procedure) and advised of risks Menhennitt ruling, based on medical assessment of associated with abortion, relative to risks associated risk, relate to women’s personal values. Although the with childbirth. She must also be offered counselling judgment, derived from Bourne, was intended to provided by a third practitioner for other matters represent a community moral consensus about the related to abortion and pregnancy. The problems proportionate values of women’s and foetuses lives, posed by this regime for women in remote and rural this assessment was fundamentally a medical one (not areas, where it might be difficult to find two (perhaps one of individual values).3 In many ways the three) practitioners who will do the job and still Menhennitt ruling was more “liberal” than the maintain a sense of privacy/confidentiality, further celebrated sections of the Western Australian Act. make me doubt Cannold’s assertion that it is the As noted, the ruling identified the primary crime criminality of abortion that impacts most heavily on associated with abortion as that of belief held by the accessible services in non-metropolitan Australia. doctor about risk. The burden lies with the Crown to Moreover, beyond 20 weeks “informed consent” disprove this belief beyond reasonable doubt to a jury holds no sway. The procedure is legal only if two of twelve, which in light of the Levine and Kirby doctors of a state-formed panel are in agreement that rulings is a very heavy burden (Petersen 2000, 269, the woman or “unborn child” has a severe medical Pringle 1996, 30): hence the crime of unlawful condition that justifies the procedure. In this instance, abortion is very rarely prosecuted. Had Suman Sood Ministerial approval must be sought (quickly I should conducted rudimentary questioning of her client in think) before the termination may lawfully be her case, it was clear to the judge that the objective performed. In the other jurisdictions, a good propor- circumstances suggested a reasonable belief could tion of terminations at this stage performed not in response to amniocentesis are performed on young (teenaged) women who conceal/deny or are unaware 2 In 2008 the Victorian Parliament passed the Abortion Law Reform Act, addressing this issue. of their pregnancies and older (peri-menopausal) 3 I am grateful to the reviewer of this journal for making this women who also do not realise they are pregnant distinction more clear to me. (Kirkby 2004): none of whom can present with a 78 Bioethical Inquiry (2009) 6:69–81 severe medical condition. Thus the legal leverage of For these reasons, Margaret Kirkby notes that “informed consent” is a luxury afforded only certain given the women, and the “decision” to abort is to be made only significance of the statement by the 1973 [sic] by some women. In contrast, the common law sets no Attorney General and given the more restrictive time limit for lawful termination. While most clinics do environment that has been created by the new not perform later-term abortions, this is due to medical legislation, the question remains – would WA procedural preference and insurance or licensing rea- women have been better off under the old laws? sons, not abortion law. In Victoria and Queensland, I argue they would have been and it is of concern infant life preservation provisions come into force at to me that no strategic discussion seems to have around 24–28 weeks, separate from abortion provisions; taken place at any point during the parliamentary in Queensland this provision also allows for procedures debate which acknowledged this possibility once performed to save the life of the woman. the trading off began (Kirkby 1998, 312). The idea that in NSW the “decision” is “technically” the doctor’s appears to me a bit odd. A doctor It is difficult to say if women are better or worse cannot decide for a woman to have an abortion. The off under the new law because statistics were directed criticism seems to stem from the idea that a doctor to be kept only from 1998; what is known is that at may deny an abortion (because the crime belongs to 2006 Victoria received almost half of its later-term him/her). Kerry Petersen calls it “legal gate-keeping” patients from interstate, presumably including from done by doctors (Petersen 2000, 270). But in the Western Australia (Wiseman 2006, 23). Kirkby is “liberal” Western Australian legislation any doctor, correct to note the lack of consideration that was moreover any hospital, may deny an abortion because given to maintaining the original Western Australian the Act includes a conscientious-objection clause in regime once that chance was conceded with the Section 3: withdrawal of abortion services in 1998. This has meant that rhetoric of “liberalism” and consent floated (2) No person, hospital, health institution, other in parliament and by the media has been mytholo- institution or service is under a duty, whether by gised to the point of authority. The use of the Health contract or by statutory or other legal requirement, Act and the use of the word “consent” to regulate to participate in the performance of any abortion. abortion do not mean that abortion is more readily This clause leads me to ask which regime is more available, that the laws are more liberal, that abortion patronising to women. Is it the common law, in which is inherently more or less a moral concern, or that a doctor must hold a reasonable belief about the need women are treated with any less patronising con- for a medical, reproductive health procedure (under- tempt. The Western Australian act could only be stood to consider future financial and emotional understood as “more liberal”, if the past regime was situation, as directed in 1995 by Kirby P)? Or, is it understood to make abortion illegal, as has been the legislation that states by law any public hospital propagated. Of course, the Western Australian model maydenyawomananabortionforreasonsof is not the only way by which to regulate abortion personal morality? Conscientious-objection poses a through health legislation, but its example should dilemma because it would make sense that compel- point to limitations and obstacles met when stipula- ling doctors to perform abortions they don’t agree tions (time limits, justifications, objection provisions) with is not wise, not least because this would not are made to be agreed on in parliament, as Davenport provide a rewarding professional life for physicians, and Cannold both acknowledge (Davenport 1998; and would not secure optimum or even pleasant Cannold and Calcutt 2001). patient care for the woman. But providing in statute for this objection is arguably counter productive. In NSW for example, there is no law to compel doctors Building A Case Against the Common Law to perform procedures, and there is no law doctors (and entire hospitals) may use to excuse or justify The unchecked myth that regulation through the their failure to provide services. Objection is a matter Health Act and gestures made towards “choice” of internal policy, not a legal loophole. makes for better, more liberal abortion provisions Bioethical Inquiry (2009) 6:69–81 79 helps to bolster the case against the common law and abortion, those who provide it and those who the criminal regulation of abortion. This and the obtain it, are criminals, and that's why we no fiction that doctors have long been prosecuted helps longer have abortion in the Crimes Act’ (ABC to further, erroneously, problematise the criminal 2006) regime, and could be seen to support arguments that This appears to portray the DPP as an ideological abortion is, and should be treated as, a moral (not institution that might be swayed at any moment to criminal) issue. Cannold’s criticism of the common apply the law discriminatorily. Decisions to prosecute law seems to be more ideological than pragmatic. are made based on a number of factors, including, After the Western Australian legislation was passed, importantly, the likelihood of conviction. Given the Victorian ex-Premier Joan Kirner commented, “the history of abortion I have outlined here, and given the question people will be asking in the eastern states is, consistent failure to convict doctors of almost if the common law works to protect abortion, do we anything short of manslaughter (or sometimes, even need to change it?” (Powell 1998a 19). In terms of manslaughter) we should not be surprised that the outcomes, the common law states have accessible DPP moves prosecutions only in cases that hold a abortion services, fewest restrictions placed on wom- reasonable chance of securing a conviction. As en and doctors, and despite paranoia to the contrary, Cannold notes, Australians are overwhelmingly in have been shown not to engage in vexatious or favour of accessible, legal abortion (ABC 2006), and ideological prosecutions of doctors. have historically acted as juries (and judges) to Nonetheless, Cannold is highly critical of the fact protect women and doctors as directed by Bourne. that abortion is “still on the books”, and could be Again this idea, that non-enforcement of the law has prosecuted more routinely by the DPP in NSW. On secured the status quo, is misleading. It is the law the ABC, she seemed to warn of a dangerous nexus of itself, its specific and detailed direction per Kirby and power and corruption that waits in the wings to Levine that has secured abortion services in NSW. influence the DPP when she said, Sood, and Smart before it, involved a female So I think what we may have been seeing in this complainant and a rogue practitioner, not a rabid, particular case [Sood] was a decision by a Public corrupt DPP. Prosecutor - there's people in that office who have very strong connections to Right to Life, there is a desire, an open desire by Right to Life Conclusions: No Change in Direction to get people who agree with their beliefs into positions of power; we have surveys that clearly The Australian political landscape suggests that the show that our politicians are much more conser- Sood trial does not represent a significant shift in vative on the abortion issue than the general policy or sentiment towards restricting abortion. Since electorate. the Western Australian legislation was passed we I don't think that's by accident, and those people have seen implemented the 2001 Tasmanian amend- very much want to stop the practice, which is the ments that provide for abortion on grounds of one in existence at the moment, where the law physical and mental health (Criminal Code Amend- remains on the books, and the only reason the ment Act (no 2) 2001) and the 2002 ACT amend- prosecutions don't happen is because the Prose- ments that remove abortion from the Crimes Act cutor chooses not to use his power in regard to (Crimes (Abolition of Offence of Abortion) Act them. They would like to see the Prosecutor start 2002). In 2006 the Medical Practitioners Board of to use his power and to bring prosecutions, and Victoria found no unprofessional conduct by five as a consequence, to restrict women's access. So doctors investigated for their involvement in a late the only solution to that is for the laws to come term abortion (Royal Women's Hospital v Medical off the books and for the politicians to stop Practitioners Board of Victoria [2006] VSCA 85 (20 looking to the prosecutors to rescue them from April 2006). The Victorian reform legislation that this situation by simply not prosecuting, but followed this investigation (Abortion law Reform Act rather to say, ‘We no longer think in 2006, 2008) provides for abortion along the lines of the 80 Bioethical Inquiry (2009) 6:69–81

Menhennit ruling, places conditions on later-term separate from discussions of the contemporary and procedures, and does not address the question of past legal and political regimes in this country. child destruction that the investigation raised. Al- though Cannold made mention of the “anti-choice rabidity of powerful players in the Howard Govern- References ment” (Cannold 2005), the RU486 debate and legislation illustrates that the federal parliament also ABC. 2006. The Sood Abortion Trial. Law Report. August 29. supports abortion (Pringle 2007), and despite the http://www.abc.net.au/rn/lawreport/stories/2006/1724391. power she affords Right to Life in NSW, there is little htm. Viewed 8 August 2008. evidence of its political or social influence (Pringle ABC. 2007. Vic MPs to be Given Conscience Vote on Abortion. Lateline.July17http://www.abc.net.au/late 2007). Even at the height of its organised activities, the line/content/2007/s1981184.htm Viewed 8 August 2008. 1979 Lusher Amendment to withhold Medibank Albury, R. 1999. The politics of reproduction: Beyond the funding for abortions was defeated, the 1980 Human slogans. Sydney: Allen & Unwin. Rights Commission Bill was defeated (Albury 1999, ALRA. (WA) Association for the legal right to abortion ’ (Western Australia) website http://users.bigpond.net.au/ 116), and Bjelke Petersen sattemptstorestrictabortion alra/ Viewed 8 August 2008 in 1980 resulted in his only failed attempt to impose ALRA (WA). 1974. Report on Legal, Medical, Social and legislation on Queensland (Coleman 1991,314). Political Aspects of Abortion Relevant to Western Aus- Doctors complain about the inconsistent legal tralia. January. unpublished. Baird, B. 1998. The self aborting woman. Australian Feminist situation across jurisdictions (de Crespigny and Studies, 13(28): 323–337. Savulescu 2004), and there are problems with access Barker and Larkin. 1968. Insight Article. Age, February 14. to abortion, especially outside major cities. But this is Brankovich, J. 2001. Constructing a feminist morality in the not necessarily, or only, related to criminality and the Western Australian abortion debate 1998. Journal of Australian Studies, 67:86–94, 220–221. use of the common law. If it were, Sydney would be Broad, C. 2007. Crimes (Decriminalisation of Abortion) Bill: as problematic for access as Brewarrina. Perhaps the Second Reading. Legislative Council 19 July: 2144. criminal law is inappropriate to regulating abortion. Cannold, L. 2005. The abortion case that could set an ugly The results of the Australian Capital Territory precedent for women. Age, August 11. Cannold, L. 1998. The abortion myth: Feminism, morality and experiment (decriminalisation) should be noted with the hard choices women make. Sydney: Allen & Unwin. interest, particularly in regard to access, clarity of Cannold, L., and Calcutt, C. 2001. The Australian pro-choice policy and services. But the myth that abortion is movement and the Struggle for Legal Clarity, Liberal illegal in NSW, that doctors are routinely prosecuted Laws and Liberal Access: Two Case Studies. In Advocating for Abortion Access: 11 Country Studies, ed. B. Klugman and that the common law is restrictive and illiberal, and D. Budlender: 41-70. Johannesburg: The Women’s does not help get to the bottom of these problems of Health Project. access or help to progress and clarify an already Chappell, D. 1968. Abortion and the law in Australia. – confusing situation for doctors and women. It Australian Humanist,6:10 15. Cica, N. 1991. The inadequacies of Australian abortion law. provides ammunition to those who oppose abortion Australian Journal of Family Law 5: 37–68. by promoting a discourse of criminality to surround Cica, N. 1998a. Ordering the law on abortion in Australia's abortion, when it is erroneous. Those who are wild west. Alternative Law Journal, 23(2): 89. concerned about the Right to Life and its spurious Cica, N. 1998b. Abortion law in Australia. Parliamentary Library of Australia 31 August, http://www.aph.gov.au/library/pubs/ hold over the NSW DPP should not promote the idea RP/1998-99/99rp01.htm Viewed 6 March 2007. that doctors are acting illegally, and have long been Coleman, K. 1991. Discourses on sexuality: The modern prosecuted for this behavior. These ideas do not help abortion debates. Phd Diss., Macquarie University. the political situation, where doctors and judges have Davenport, C. 1998. Achieving law reform in Western Australia. Australian Feminist Studies 13(28): 299–305. been handed responsibility for abortion law and de Crespigny Lachlan, J., & Savulescu, J. (2004). Abortion: policy, because politicians traditionally “would rather Time to clarify Australia’s confusing laws. The Medical walk on hot coals than debate” it and where parties Journal of Australia, 181, 201–203. disavow leadership by way of conscience votes Illawarra Mercury. 1998. Perth doctor defends abortion as legal. February 6. (Petersen 2000, 270). Importantly, arguments for a Jacobsen, Geesche. 2006a. Baby had little chance. Sydney moral understanding of abortion should be kept Morning Herald, July 18: 4. Bioethical Inquiry (2009) 6:69–81 81

Jacobsen, Geesche. 2006b. Revealed: the dark past of a guilty Monash University Law Review. Monash University. abortion doctor. Sydney Morning Herald August 24. Faculty of Law 29(2): 316–335. Kirkby, M. 1998. Western Australia’s new abortion laws: Riseman, N. 2005. Medical choice: The Australian movement to Restrictive and reinforcing the power of the medical legalize abortion, 1967-80. Lilith (Fitzroy, Vic.) 14: 92–104. profession and the state over women’s bodies and lives. Summers, Anne. 2005. Future of abortion hangs on landmark Australian Feminist Studies 13(28): 305–312. hearing. Sydney Morning Herald, August 11. Kirkby, M. 2004. The politics of abortion. Paper presented at Stephen, K. 1998. Changes to Western Australia's abortion law the Sydney Social Forum, September 19, in Sydney. in 1998. Pro-Choice Forum, http://www.prochoiceforum. Le Grand, Chip. 1998. Hospital ultimatum on abortion. The org.uk/al5.asp. Viewed 6 March 2007 Australian April 30. Sydney Morning Herald. 1977. Appeal court upholds doctor’s Mark, Russell. 1998. Landmark abortion charges thrown out. suspension on abortion issue. March 19: 5. Courier-Mail, July 31. Sydney Morning Herald. 1980. ‘Quite barbaric’ says SM. For McGregor, Adrian and Matt Price. 1998. Interstate show of trial on alleged abortion bid. May 10: 3. solidarity for doctors. The Australian, February 19. Teasdale, L. 1999. Confronting the fear of being ‘caught’: O’Brien, Natalie. 1998. Call for national debate on abortion. Discourses on abortion in Western Australia. The Univer- The Australian, February 24. sity of New South Wales Law Journal, 22(1), 60–99. Petersen, G. 1998. George Petersen remembers: The contra- Wainer, B. 1972. It isn’t nice. Alpha Books: Sydney. dictions, problems, and betrayals of Labor in government Wiseman, Heather. 2006. The fear factor. Australian Doctor, in New South Wales. Petersen: Sydney. November 3: 23. Petersen, K. 2000. Abortion: Medicalisation and legal gate- Wolf, Naomi. 1995. Our bodies, our souls: Rethinking pro- keeping. Journal of Law and Medicine 7: 267–272. choice rhetoric. The New Republic 213:26, October 16. Powell, Sian. 1998a. Eastern caution on West’s abortion win. The Australian, April 4. Powell, Sian. 1998b. Pro-choice: Within the guidelines. The Australian, July 30. Cases cited Pollard, Ruth. 2006. Medical menace ran theatre of blood. Sydney Morning Herald, October 7. Pringle, H. 1996. Abortion in and out of the courts. Current CES v Superclinics (Australia) Pty Ltd 1995 38 NSWLR 47 Affairs Bulletin, (April-May), 31. King v Bourne 1939 1 KB 687 Pringle, H. 1997. Is abortion illegal? Australian Journal of Political R v Bayliss and Cullen 1986 9 Qld Lawyer Reps Science 32(1): 93–110. doi:10.1080/10361149751020. R v Davidson 1969 VR 667 Pringle, H. 2007. Urban mythology: The question of abortion in R v Sood (Ruling No 3) 2006 NSWSC 762 (15 September parliament. Australasian Parliamentary Review 22(2): 5–22. 2006) Rankin, M. 2001. Contemporary Australian abortion law: The R v Sood 2006 NSWSC 1141 (31 October 2006) description of a crime and the negation of a woman’s right R v Wald 1972 3 DCR (NSW) 25 to abortion. Monash University Law Review. Monash Royal Women's Hospital v Medical Practitioners Board of University. Faculty of Law 27(2): 231–252. Victoria 2006 VSCA 85 (20 April 2006) Rankin, M. 2003. Recent developments in Australian abortion Superclinics Australia Pty Ltd v CES & Ors S88/1996 (11 law: Tasmania and the Australian Capital Territory. September1996)