LEGAL PERSPECTIVES ON THE ABORTION DEBATE

Charles Francis

(LAW INSTITUTE JOURNAL (Vic):  March 2008   www.liv.asn.au/lij)

The law on abortion in Victoria is governed by ss65 and 66 of the Crimes Act, the Child Destruction Act sl0, and the Menhennitt ruling in 1969. Under that ruling an abortion is only lawful if performed by a qualified medical practitioner who had an honest and reasonable belief that the abortion was necessary to preserve the woman's life or health from serious danger.

Following the Menhennitt ruling the abortion industry in Victoria gradually flourished. Provided an abortionist was medically qualified, no questions were asked.

It is important to bear in mind that every abortion kills an innocent human being, depriving that individual of all the joys of a future life. When abortion flourishes, the whole community comes to devalue human life. While most Victorians accept the present law (many very reluctantly), they also believe there are far too many abortions in Victoria, now estimated to be about 18,000 a year.

In particular, there is opposition to late-term abortions where a viable human being has its life unnecessarily terminated.

As a lawyer who acted for a number of women who sued for the damage done to them by abortion, I became increasingly aware that the abortion industry in Victoria is a major scandal with which successive governments, both Liberal and Labor, have failed to deal.

Some abortionists are in it solely for the money, having little concern for the best medical interests of their patients, and their medical standards can fall far below what is appropriate. In those cases, such counselling as a woman receives at an abortion clinic is usually designed to ensure the abortion occurs.

Women ought be warned of the many risks to themselves such as severe psychiatric damage which occurs with about 10 per cent of abortions, the increased risk of breast cancer and many other risks documented in research and statistics. These risks include the possibility that future children may be born with cerebral palsy, as occurred in NSW: Bruce v Kaye [2004] NSWSC 277. In Texas abortionists are now required by law to warn of some 14 known risks, including the possible increased risk of breast cancer.

The terms of reference sent to the VLRC by the Attorney-General last November indicated that the government hoped the VLRC would recommend the legalisation of all abortion, so the government could thereafter claim this was the recommendation of a supposedly expert body.

Within Parliament (and outside it) the members of Emily's List, a pro-abortion ALP women's lobby who want all abortion legalised, appear to be unaware that the absence of any legal restraint will make it easier for husbands, partners and family to put greater pressure on a woman to have an abortion which is not her own choice.

The research of the US Elliot Institute indicated that 64 per cent of women felt pressured into having an abortion, and more than 80 per cent would not have had one if they had been fully informed of the consequences.

Far from any legalisation of abortion what Victorian women need is full information on the practices of some abortionists and adequate support during unplanned pregnancies.

CHARLES FRANCIS AM QC is a retired barrister and former Victorian Bar chair (1987-88). He has obtained settlements for women who sued abortionists for failure to warn of psychiatric damage and the increased risk of breast cancer caused by abortion.