It's Not A Loophole, It's The Law


It’s a shame when someone who works in the legal profession promotes confusion about abortion law. Indeed, to encourage the misapprehension that abortion is illegal across Australia is potentially very dangerous — for women, for the pro-choice movement and for doctors.

Richard Ackland’s recent contribution to the public debate over Australian abortion laws promotes this commonly held, but incorrect, idea that abortion is illegal in NSW and across most of the country.

As both a lawyer and a journalist, Ackland should know that confusion in this area is not just a matter of arcane legal debate. Abortion law impinges on decisions that one in three Australian women make in the course of their lives, decisions that also affect many people beyond women contemplating a termination.

As Ackland notes, Tegan Leach is awaiting trial on abortion-related offences, specifically concerning allegations of self-abortion in Queensland. The situation is heated: Leach and her partner have reported that their home has been attacked. Rational accurate debate about abortion laws is imperative, now as ever.

Articles like Ackland’s have important implications for how doctors and women understand the legality of abortion. It is vital that we get it right.

Abortion is not "illegal" in Australia, as Ackland claims. Nor is it "technically unlawful" as ABC TV’s Lateline has suggested.

Abortion performed by doctors is legal in Australia. Each state and territory has legislation that governs abortion law. In most jurisdictions this involves the criminal law. In Queensland, the Criminal Code makes it an offence to unlawfully procure a miscarriage, by way of "poison or other noxious thing", or any other means. In 1986, in a case involving Doctors Bayliss and Cullen, Judge McGuire clarified that Queensland law provided for the performance of a surgical operation "upon an unborn child for the preservation of the mother’s life", and on those grounds, the jury in that case found the doctors not guilty. The lawfulness of abortion in Queensland is governed by this ruling.

Judge McGuire’s 1986 clarification related to a doctor’s performance of surgical abortions. Earlier this month, Anna Bligh’s Government tweaked Queensland law in order to make explicit allowance for doctors who perform medical — as opposed to surgical — abortions.

The lawfulness of performing an abortion on oneself, however, appears not to have been tested in the Queensland law, or elsewhere.

Abortion law reform has been underway in Australia since the 1960s, culminating first in South Australia in 1969 and most recently in Victoria in 2008. In Western Australia, South Australia, Tasmania, Victoria, the ACT and the Northern Territory, reform movements resulted in the clarification of the circumstances under which doctors might legally perform abortions.

Self-abortion, and the individual importation of abortion drugs, might well contravene the law in all jurisdictions in Australia, but this has not been tested. A prohibition of self-abortion is by no means a peculiarly Queensland situation, despite Ackland’s depiction of that state as backward and moralistic.

In NSW, abortion performed by doctors is governed by the Levine ruling of 1971. Contrary to Ackland’s characterisation of it as a piece of judicial activism, the ruling followed the precedent of the leading 1938 English judgment on abortion, R v Bourne, and the Menhennitt ruling in Victoria of 1969. The Levine ruling stipulates that to prove a case of illegal abortion, it would be for the Crown to prove that a doctor did not hold an honest and reasonable belief about risk to the woman of continuing the pregnancy, when considering her health, wellbeing and economic circumstances. In 1995 Justice Michael Kirby clarified in the NSW Supreme Court that a doctor may consider both the woman’s immediate and foreseeable situation in forming this belief.

Ackland argues that the law is a farce and that most abortion doctors do not hold this honest reasonable belief. But with respect, how would Ackland, or any commentator, know this? As an officer of the law, surely Ackland would appreciate the gravity of his publicly characterising abortion doctors as performing criminal acts.

Certainly the Crown and the police, and judges and juries in NSW, respect that doctors performing abortions do hold an informed, honest and reasonable view about women’s needs for terminations. Hence the provision of abortion is freely practised in NSW.

In 2006 Dr Suman Sood was found not to have questioned a woman about her reasons for requesting an abortion, and therefore, to have performed a termination unlawfully.

This does not suggest the law is an ass, as Ackland states; quite the contrary. It suggests that the Director of Public Prosecutions and the police are satisfied that the very vast majority of abortions performed in NSW are legal, and have been since the early 1970s.

If the DPP and the police share this understanding, why is Richard Ackland unnecessarily scaring doctors and women that abortion is illegal?

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.