Wayne Berry’s action in proposing a Private Members’ Bill on abortion is another in a line of Bills in the ACT taking up issues that politicians elsewhere fear to tread. Euthanasia; addictive drugs; smoking in public places, citizens’ initiated referendums, fluoride are other examples.
It makes for an interesting polity.
Often these laws are short and drafted in fairly plain language.
Berry’s law is the shortest and plainest of those mentioned. It has only two operative clauses. One repeals three sections of the Crimes Act on abortion and one repeals all common-law offences on abortion.
In a legal sense it is abortion on demand. In a practical sense, however, you cannot get a hip replacement or a dozen other medical procedures on demand in the ACT. You still need a doctor willing to do it and a medical facility to do it in.
If Berry’s law is passed, it will leave only two offences relating to foetuses: child destruction during childbirth and grievous bodily harm during childbirth _ both punishable by 10 years jail.
It is probable that a woman would have to be in labour before those offences could be committed.
The Berry Bill, therefore, permits a woman to have an abortion and for a doctor to perform one right up to labour.
The safeguard are the purely practical and emotional ones. Doctors just will not do it and generally women will not do it. Those that do will not be deterred by the criminal law anyway and more than likely the societal interest in such a woman would not be to impose a criminal sanction, but provide help.
The self-regulating, practical safeguard is the same as in cases of attempted suicide. There is no need to make it a crime.
A further practical point is that if safe abortion were generally available early in a pregnancy, late-term abortions would generally not be needed.
That said, our society has become so legalistic that people believe that if something is not a specific criminal offence people will happily do it and not regard it as immoral to do it (because the law says it is OK). This is particularly true in white-collar and revenue conduct.
Maybe Berry will have to bow to this pressure and have a clause making it clear that an abortion is illegal after a certain number of weeks in situations where the foetus is capable of being born alive. The latter is a test used in England. Both tests have difficulties, but in an area fraught with difficulties they at least might overcome fears of some in the community and legislature.
He may have to bow to the pressure if he is to achieve the other aims of his Bill.
One aim is to remove any remaining legal doubt about a woman deciding she does not want to continue with a pregnancy on physical, psychological, emotions, economic or social grounds.
Another aim is to bring the law of the ACT into line with what is happening as a matter of practice in Sydney, so that ACT women and doctors can do without any fear of prosecution whatever here what would happen in Sydney anyway without having to put women through the trauma of going to Sydney away from their support networks.
A third aim is to ensure women get Medicare benefits. The last to aims is to ensure that there is not one practice for the rich and another for the poor.
It is probable that most of Berry’s two aims will be achieved without his law. It is a question of practicalities rather than legalities. Access to abortion services do not depend on the law of a state or territory but on whether there is an accessible clinic to provide the service.
Whatever the state of the law, police and prosecuting authorities rarely if ever prosecute. Nearly all the law on abortion in the past two decades has been developed from family-law, guardianship and property cases: questions of whether the father can get an injunction to prevent a woman’s abortion (no); in what circumstances can a guardian insist a minor or mentally retarded person have an abortion; what rights does a foetus have to an inheritance?
In the end, Berry’s Bill is not about abortion at all. Women, doctors, police and prosecutors have shown by their actions that the law has little to do with the circumstances of women having abortions.
Rather, the present law and proposed changes to it are statements. They are statements of politics, religion, morality, desire for empowerment and philosophy.
In the past 30 years the words of the law have remained basically the same: it is an offence to “”unlawfully” procure a miscarriage. However, the interpretation of that word “”unlawfully” has widened and the evidentiary requirements to prove it have got much tougher.
If there is a reasonable social, medical or economic reason to make a jury conclude that there would be a serious risk to a woman’s physical and mental health, then the abortion will be legal.
It is very hard to overcome a doctor’s opinion on that to get a conviction, so why bother prosecuting.
But that is not the end of the story. Even if the law is not enforced, it remains a statement of where society stands. Women want to be freed of having a juries or doctors overseeing and assessing the decision; they want to decide themselves.