ACT Government MLAs have got themselves into a bind over the abortion question. They should have left well enough alone a year ago. There was no need to change the law. Moreover, any change to the law would only result in women wanting abortion gong across the border to Queanbeyan. No territory is an island.
But no, Independent Paul Osborne, who is a strong Catholic and has strong anti-abortion views, put up a private members’ Bill to restrict abortion and the Government felt he had to be appeased somehow because the Government needed his vote to stay in office. And it still does. So here we are a few weeks after the no-confidence motion over Bruce Stadium facing another community and Assembly debate on abortion.
A year ago, Mr Osborne sought to heavily restrict abortion in the ACT. Oddly enough he caused some ire in the Catholic Church because his law might have allowed abortion in some circumstances, such as grave medical risk or, in cases before 12 weeks of pregnancy, in circumstances of grave psychological risk, whereas Church teaching is generally to have the woman to carry a child to birth. Giving any significant ground whatever was an anathema to the Church. Mr Osborne also incurred the wrath of women’s groups who saw any tightening of present practice through legal definition of when an abortion might take place as an infringement of women’s rights.
The exemptions in Mr Osborne’s original Bill of medical and psychiatric harm were limited and could easily have resulted in women who were victims of rape or carrying deformed foetuses being forced to give birth.
As it happened a compromise was made between some of the 10 anti-abortion MLAs and the pro-choice MLAs. The Osborne proposal was changed. The new law just required that women seeking an abortion get information and counselling and have a 72-hour cooling-off period. It was a let-off for both sides, particularly the two pro-abortion Government MLAs, Health Minister Michael Moore and Chief Minister, Kate Carnell.
Mr Osborne’s aim was to ensure that the information given to women included pictures of foetuses at various times in the pregnancy. But the wording of the new law as it was passed by the Assembly was not quite so specific.
It says that a medical practitioner dealing with a woman seeking an abortion shall provide her with information. And what ”information” is that? It is not precisely defined. Rather the Minister must appoint a seven-member panel made up of five specialists (one of which is a psychiatrist) and two nurses. Three of the total must be women. This panel then is charged with the task of coming up with a package of information. This information ”may” include pictures of foetuses as various stages of development.
And after several months deliberation, the panel has come up with a package of information without any pictures. Mr Osborne is ruffled. He knows that information with lots of words will not penetrate. He knows that pictures are more likely to influence emotions and actions. He wants the pictures. Presumably, he feels this is the most effective way of dissuading women from having an abortion.
If so he is probably mistaken in most cases. Typically, in jurisdictions where abortion is made difficult, women resort to illegal abortions or go interstate. Illegal abortions can result in infertility and other injuries to women and the resort to other jurisdictions can result in one rule for the rich and another for the poor.
The fact that the panel has decided not to put pictures in its package of information has put Mr Moore and Mrs Carnell — in a difficulty. Both have resolved the difficulty by giving in to Mr Osborne, rationalising on the basis that if they do not it could result in an even worse law because the Assembly could revisit the law under which the regulations that guided the panel were made. The law could then be changed to force the issue, or worse from their point of view, tighten the availability of abortion generally.
More likely, though, they do not want to offend Mr Osborne in whose fate the Government lies, particularly with the Auditor-General’s report on the Bruce Stadium still to come out. In the meantime, abortion is a handy distraction, even if the panel’s ruling rather than any government action was the catalyst for the latest impasse.
Mr Moore, while agreeing on the Osborne-appeasement path, has shrunk from the task of actually drafting the regulations that will appease him, instead passing it to his anti-abortion colleague Gary Humphries, even though one would expect the Health Minister would be the person responsible for regulations drafted under the Health Regulation (Maternal Health Information) Act. Mr Moore can escape the task because these days regulation-making is vesting in the Executive generally rather than a particular Minister.
But it is not as simple as that. As the law stands the “”Executive may make regulations for the purposes of this Act”. That is a vague power. On its face it is quite wide. However, it surely cannot run to making regulations which are inconsistent with the Act. If the Act gives the expert panel the power to define the information to be given to women including whether or not that should include pictures, surely the regulation power cannot run to allowing the Executive (that is, the Minister) to usurp that power. The Minister’s power has been confined by the Act to selecting the panel – not doing the panel’s job. If that were not the case, why did the law the Assembly passed bother with a panel?
The Executive has over-stepped the mark.
It was inevitable that once the MLAs intervened with respect to abortion, there would be trouble. They should have left well alone a year ago. They should leave the panel’s decision alone now.