The Cs Have It


I predict that abortion will one day be fully legal and accepted, just as slavery is now considered immoral and the eight-hour workday is standard practice.

The abolition of slavery and institution of workers’ rights were very hard won. So will be abortion rights. Victorians now have the opportunity to take us a step closer to this victory.

In September 2007, the Victorian State Government finally moved to address the disconnect between abortion law and civil life after Labor MP Candy Broad brought a private member’s bill before the State’s Parliament. Rather than debating the abortion decriminalisation bill, Victorian Premier John Brumby’s Cabinet provided terms of reference to the State’s Law Reform Commission to provide options for decriminalisation. Broad withdrew her bill. The Commission tabled its final report on abortion law on 29 May, a month after it was handed to the Attorney-General.

The report puts forward three models, all of which decriminalise abortion by taking legislation from the Crimes Act 1958 and putting it into the Health Act 1958.

Model A maintains the current illegality of any abortion that is not a response to a doctor’s determination of grave harm to a woman if she continues her pregnancy.

Model B legalises all abortions performed before 24 weeks gestation and determines legality after 24 weeks as in Model A.

Model C deems all abortions legal if consented to by the pregnant woman and performed or supervised by a qualified practitioner.

Brumby quickly announced that he considers the coming caucus debate to be between Models A and B, which places him in a disappointingly conservative position in relation to women’s reproductive rights – though perhaps not a surprise given that Broad’s bill had fully decriminalised abortion. It is especially galling considering that Model A does not meet Brumby’s own terms of inquiry, which state that the purpose of abortion law reform is to clarify and modernise the law in line with current clinical practice and community standards that will neither restrict access to abortion nor increase current abortion rates.

This suggests his favour for the more conservative models is political rather than logical. The anti-choice lobby has taken the issue beyond Victoria, calling for the Federal Government to continue bans on international aid to organisations that give advice on abortion. A group of Coalition Senators has announced their intention to challenge Medicare funding for late-term abortions.

Despite the seemingly endless persistence of the abortion debate, Model C is the only one that is modern in its recognition of women as fully autonomous human beings capable of making ethical choices. It is also the only model that reflects current clinical practice and respects the very individual situations of women who make difficult choices about unwanted pregnancies – pregnancies that may be problematic for all sorts of reasons from poverty to abuse, from fetal abnormality to the lack of a loving relationship.

Model C addresses Victoria’s current farcical situation, which pretends that the approximately 19,000 Victorian women who receive abortions each year are in grave danger and thereby obtaining legal abortions. It is the nature of this farce that decriminalisation is meant to rectify. As the Commission’s report points out, no one has been charged with performing an unlawful abortion in the State for 21 years. Why retain a law that is unenforced?

Model A’s codification of the 1968 Menhennitt rules rely on pre-modern principles of necessity and proportion – dubiously interpretative concepts – to guide determination of whether a woman’s physical or mental health is in serious danger by continuing with a pregnancy. The Commission itself concedes that Model A does not reflect current clinical practice or community standards.

Nor does it reflect the tradition of Australian law, which the report clarifies as based on the "common law principle that a fetus is not a person, with legal rights, until born".

Model B is also based on opinions about the nature of the fetus rather than the core right of a woman to autonomy. A line that cuts off a woman’s right to determine the medical procedures and relationships to which she consents is clearly unreasonable. A woman does not lose her ethical decision-making capacity at some medically determined point of pregnancy.

The report points out that the late-term dividing line is "a difficult exercise in judgment" and the choice of 24 weeks is based in part on (contested) clinical practice. However, current clinical practitioners are against a two-tiered model of decriminalisation.

The majority of those who support decriminalisation, including professional medical bodies such as the Paediatric State Committee of the Royal Australasian College of Physicians, do not support viability or gestational stage conditions as appropriate bases for abortion policy.

Model C is the only option that is clear, simple and modern and will remain clear, simple and modern despite changes in medical practice. Its implementation in ACT and Canada has not been accompanied by increased abortion rates. It reflects some current practice and leaves any complexity around abortion decisions to the women they affect – not to the law and not to doctors.

It is also the only model that does not discriminate among women, particularly against rural and low socio-economic women who face challenges due to lack of doctors and facilities to provide abortion and fetal testing services.

If either Model A or B is chosen to be implemented as legislation, we can look forward to many more years of the fight for women’s autonomy and equality in reproductive choice rather than once and for all putting it to an end by legal recognition of women’s ethical capacities.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.