ABORTION BILL CANNOT ENFORCE GESTATIONAL LIMITS
When Victoria’s Abortion
Law Reform Bill 2008
was tabled in the state
parliament’s lower house,
the feminist lobby protested that
the Brumby Labor Government had
adopted Model B, as recommended in
the Victorian Law Reform Commission
(VLRC) report, which set a limit
of 24 weeks’ gestation for abortion on
demand.
Beyond that foetal age, a woman
seeking an abortion had to get the approval
of two doctors.
Emily’s List feminists wanted the
more extreme Model C under which
there were no gestational limits and
women could demand abortion for
any reason right through nine months
of pregnancy.
However, the pro-abortion lobby
has now gone quiet on this issue, probably
because they realise that in effect
they have been given Model C.
Loophole
As a matter of reality, clause 5 of the
Abortion Law Reform Bill 2008 will
create a situation in which abortion can
be performed at any time during the
pregnancy. The loophole is fairly similar
to that created by Victoria’s famous
Menhennitt ruling of 1969. After 24
weeks’ gestation, a woman only needs
to find a medical practitioner who is
prepared to perform an abortion for her,
even though there be no reason under
clause 5. In Victoria, there are already
abortion-providers who are prepared
to perform abortions on demand at any
time during the pregnancy.
The medical practitioner only
needs a partner or colleague who is
prepared to collude and say that he
too believes it appropriate in all the
circumstances to perform the abortion.
If thereafter any questions are asked
pursuant to some inquiry or otherwise,
all that the two doctors need say is that
they both believed the abortion was appropriate
in all the circumstances.
Thereafter they can refuse to
answer any further questions directed
to the question of why they formed that
belief, on the grounds that any answer
to the questions would be a breach of
medical practitioner-patient privilege
under the Evidence Act 1958. Thus the
genuineness of their belief could not
be tested.
In these circumstances, there
would be no evidence by which proceedings
for professional misconduct
could be brought under the Health
Professions Registration Act 2005.
Consequently, unless the patient or
the abortion-provider’s staff were
prepared to provide evidence that the
abortion was performed without any
reason at all, abortion-providers could
perform abortions at any time without
risk of facing proceedings before the
relevant board.
As mentioned above, this obvious
loophole in the law is somewhat like the
situation which inadvertently developed
after the 1969 Menhennitt ruling.
Because the onus of proof was on the
Crown, the abortion-provider could
assert the abortion was performed
for serious risks but refuse to identify
those risks because of the medical
practitioner-patient privilege under
the Evidence Act 1958. The Crown was
then unable to prove that there were no
serious risks to the woman’s physical
or mental health.
No doubt those who drafted
Victoria’s abortion bill wanted to place
some limitation on abortions after 24
weeks’ gestation, but, in my view, the
bill will not be effective in producing
that consequence. In reality, in Victoria,
we will have abortion on demand
at any time during pregnancy.
The VLRC was provided with
evidence from over 50 studies that
abortion increases the risk of premature
birth in subsequent pregnancies,
which, in turn, increases the risks of
a range of complications, including
cerebral palsy.
The VLRC was dismissive of all
these studies (para 3.34) and relied on
a British parliamentary report which
merely said there were conflicting
opinions on the subject. The VLRC
added that “a large well-designed 2006
study showed no links but other studies
showed some links” and the “UK report
found no causal connection”.
The “well-designed 2006 study”
appears to be a Finnish study by K.
Raatikainen and colleagues. Canadian
researcher, Brent Rooney, MSc.,
says this Finnish study is irrelevant,
producing no data at all in relation to
very early pre-term birth, i.e., under 32
weeks’ gestation.
Cat out of the bag
Although the British Journal of Obstetrics
and Gynaecology is loath to publish
any material suggesting abortion
elevates the pre-term labour risk, an
e-mail by its editor-in-chief, Dr Philip
Steer, to a colleague let the cat out of
the bag when his e-mail inadvertently
reached the public domain. He wrote
that “the link between TOP [termination
of pregnancy] and pre-term labour
… none of us dispute, the evidence is
already overwhelming”.
Many British gynaecologists
would have performed abortions or
referred patients for abortions without
any warning of this risk. In these
circumstances, one can understand the
reluctance of the Royal College of Obstetricians
and Gynaecologists (RCOG)
to publicly admit this risk.
— Charles Francis AM, QC, is a retired
barrister who has obtained
settlements for women who sued
abortionists for their failure to
warn of the psychological and
physical risks of abortion. He is
a former Victorian state MP and
a former chairman of the Victorian
Bar.
|