Abortion, law and history

The fiction that the unborn child is not a legal person dates from medieval times and is influenced by primitive biology.

In 1788 the first English text book on medical jurisprudence written by William Farr, MD stated "Life begins … immediately after conception." However, by then the fiction that the unborn child is not a legal person was part of English law.

This stance made it hard to justify the fact that an unborn child once born can claim under an estate, can sue in respect of the death of a parent, can claim workers' compensation in respect of the death of his or her father, can sue for injuries in a motor accident before birth. Where a person injures an unborn child so that after birth the child dies of injuries suffered, the person who injured the unborn child is guilty of a criminal offence. For this reason, Justice Gillard in the Supreme Court of Victoria in 1972 recognised the unborn child as a legal person.

The law in Australia

Laws relating to abortion in Australia are enacted at a state rather than a federal level. However, because Australia has a unified legal system derived from that of England, decisions made in one state are applied by lawyers in another state and accepted by judges.

The NSW Crimes Act makes the ‘unlawful' use of any drug or instrument to bring about an abortion a felony punishable by 10 years' gaol. The Victorian Crimes Act is similar. The Criminal Codes of Qld and Tasmania provide for penalties of up to 14 years' gaol for those performing abortions and 7 years for those obtaining them. They contain a proviso that abortion is not illegal if performed to save the mother's life.

The Statue Law in SA and NT allow for abortions to be performed in public hospitals in specified circumstances, such as danger to the woman's mental health and substantial risk that the child would be seriously handicapped.

The loophole allowing the alarming increase in the number of abortions performed in Australia was found in the meaning of the word ‘unlawful' in existing legislation. In 1969, Davidson's Case, Justice Menhennitt in the Supreme Court of Victoria held that "for an abortion to be performed unlawfully, the Crown must establish either the accused did not honestly believe on reasonable grounds that the act done by him was necessary to preserve the woman from a serious danger to her life or physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; or the act done by him was in the circumstances proportionate to the need to preserve the woman from a serious danger as above."

This decision can be said to be the most decisive Australian case on abortion. In1972, R v Wald and Others, Mr Justice Levine of the District Court of NSW followed the ruling of Justice Menhennit but also added economic or social reasons during the pregnancy as providing grounds for a danger to the mother's health.

Since these cases, governments in most states have effectively condoned abortion on demand at all stages of pregnancy by allowing abortion clinics to operate as private profit-making businesses, and the courts have consistently upheld the ‘right' of the mother to terminate her pregnancy. In CES vs Superclinics 1995 Justice Kirby in the NSW Court of Appeal demonstrated acceptance that abortion on demand is now the case by his referral to medical evidence from a specialist in family planning that in the past 23 years he could not recall an occasion where an abortion did not take place following a referral.

The plaintiff in this case had sought damages for the lost opportunity to have an abortion but Justice Newman had found that there was no serious danger to the mother's physical or mental health and therefore held that abortion would have been unlawful. On appeal Justice Kirby held that they might successfully recover damages for the lost opportunity to have an abortion. The case was then appealed to the High Court of Australia but unfortunately before a decision could be handed down the case was settled, thus depriving Australia of an authoritative statement of the law once and for all.

It has been stated that the law should remain neutral on this issue, but this is impossible. What is not prohibited is permitted. Therefore to formally neither prohibit nor permit actually means to permit; in this case, for governments to have no policy on abortion is to take the side of the pro-abortionists. Whether or not it is a good thing, it is not neutral.

"In our tradition of the law, law has always been a great educator. A law channels behaviour, it educates, it tells the confused and the uncertain and the frightened what the community thinks is good. And if the law tells the confused, the uncertain and the frightened that abortion is good, abortion will follow."