The Attorney-General, Gary Humphries, has proposed some amendments to a Bill on abortion proposed earlier by Independent MLA Paul Osborne. They remove Mr Osborne’s attempt to codify restrictions on when an abortion can be performed; strengthen and tidy up his requirement for the provision of information before and abortion can be performed; provide for a 72-hour cooling-off period; insist that abortions can only be performed by a medical practitioner in an approved medical facility; and require medical facilities to provide statistics on abortion each year.
Mr Osborne’s Bill had many defects. Indeed, it had been attacked by both sides in the abortion debate.
Right to Life Australia opposed Mr Osborne’s Bill because although it seeks to largely outlaw abortion it allows it in cases where a woman is in grave physical or psychiatric risk. Presumably, Right to Life Australia, feels that this might be the thin end of the wedge in giving formal legal approval to some abortion, however limited.
Present law, has a purported ban on all abortion. Section 43 of the Crimes Act provides: “”A person who, unlawfully and with intent to procure a woman’s miscarriage (whether or not she is pregnant) administers a drug to the woman or causes a drug to be taken by the woman; or uses any instrument or other means; is guilty of an offence punishable, on conviction, by imprisonment for 10 years.”
However, the section is ambiguous because of the judicial interpretation of the word “”unlawfully”. It has meant that for practical purposes abortion is readily available to women in the ACT. Doctors feel that successful prosecutions under the Crimes Act would be very unlikely.
Mr Osborne’s Bill on the other had would make doctors be very wary about performing abortions. Indeed, the Bill probably makes it illegal to perform an abortion on a rape victim or victim of incest. This has caused great concern among women’s groups and among people who are generally opposed to abortion, including some in the Assembly.
The Osborne position was too extreme. However, the present position is not satisfactory. The law says no to abortion, but the practice is different. It has meant that because the law says abortion is illegal there is less openness about it. Of major concern is whether women seeking an abortion get access to enough independent information to make an informed choice about whether to go ahead.
That was ostensibly Mr Osborne’s major concern, but in trying to address it he presented a Bill which would have the effect of dramatically limiting access to abortion in the ACT, inevitably driving women across the border to NSW and therefore doing nothing to address what he said was his real concern.
Mr Humphries amendments, on the other hand, are at pains to state that the new law does not change the position on the lawfulness or unlawfulness of abortion itself, but do address the question of informed consent and ensure that abortions can only be carried out by a medical practitioner in a proper medical facility.
The principle of informed consent is an admirable one when dealing with medical procedures. It is a criminal assault for a doctor to operate without consent knowingly and to operate without informed consent can result in civil liability. Mr Humphries’ amendments demand women be given pamphlets with about 20 pictures of the fetus at various stages, pregnancy support information and physical and psychological risks to the woman. Perhaps similar sort of information provision (the fetus aside) could be compulsory for all medical procedures.
But before the law requires compulsory information, the Assembly should inform itself (beyond the merely anecdotal) of what is being provided now on a voluntary basis. It may be that there is widespread failure by doctors to inform both with respect to abortions and other medical procedures. If so, it is a matter for concern. But the Assembly should determine that before bringing in the heavy hand of regulation and compulsion. At present Mr Humphries asserts there are enough documented cases, but those cases used by Mr Osborne were not very current. Mr Humphries information may also prove stale.
The cooling-off period smacks a little of the patronising. It is not as if women who find themselves with an unwanted pregnancy do not consider the matter very deeply. But probably very little turns on it in practical terms. It would probably be three days anyway from the time a woman first discusses the matter with a medical professional and the abortion. No doubt there are anecdotal stories of uncertain women crossing the threshold and being rushed into a decision. But once again, the Assembly should inform itself beyond the anecdotal. What is the usual practice in the ACT with respect to rushed abortions? Once again the Assembly should see if self-regulation and voluntary measures are failing in a significant way before rushing in with the heavy hand of regulation.
One of the extraordinary contradictions in political life in Australia is the way some politicians are happy to promote self-regulation and freedom of choice in the economic sphere, but are the first to want to regulate and prohibit in the social sphere. And those who oppose state regulation in matters like abortion, euthanasia and drug use are frequently in favour of pervasive economic and industrial regulation.
In dealing with abortion it is too easy to stand on high moral principle and ignore the practicalities.
In some respects Mr Humphries is to be commended for attempting to defuse an utterly counter-productive Bill posed by Mr Osborne. Women would have just crossed the border. Any hope then of programs for prevention, education and support would be lost. However, Mr Humphries and the Assembly should go one step further. They should inform themselves about what is happening in the community before attempting to impose remedies.