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'The silent innocence of the unborn' - on trial

By David van Gend - posted Friday, 15 October 2010

Queensland law allows for abortion only in the gravest situations - to preserve the mother from “serious danger” to her life. In his 1986 ruling (R v Bayliss & Cullen) Judge Fred McGuire concludes that this narrow provision is “a humane doctrine devised for humanitarian purposes, but it cannot be made the excuse for every inconvenient conception”.

He based his ruling on the 1938 English precedent concerning Dr Aleck Bourne, a respected gynaecologist, who agreed to perform an abortion on a 14-year-old girl rape victim. Significantly, Dr Bourne opposed further loosening of the criteria for abortion and when the very permissive Abortion Act was introduced in Britain in 1967, he campaigned against it, joining the Society for the Protection of the Unborn Child. Such is the tension between accepting abortion for the “hard cases” but refusing abortion for “every inconvenient conception”.

The existing Queensland law on abortion maintains a consistent message to adults that violence to their offspring is never justified, whether before or after birth. “The law in this State”, in the words of Judge McGuire “has not abdicated its responsibility as guardian of the silent innocence of the unborn. It should rightly use its authority to see that abortion on whim or caprice does not insidiously filter into our society.”


But there are many who believe that the excuse of “inconvenient conception” is indeed sufficient for adults to take the life of their young, and a test case for that proposition is before the courts in Cairns this week. At the time of writing, the outcome is unknown.

The facts of this case are that a 19-year-old woman in a stable relationship became pregnant, and her partner allegedly obtained two drugs illicitly from overseas, RU486 and misoprostol, and these were allegedly used to procure the abortion. The empty packets were found by police investigating an unrelated matter, and charges were laid. The woman told the Sydney Morning Herald in September 2009, “I just decided that I wasn’t ready for a child”. There was no suggestion of a medical problem with mother or baby, no question of rape or incest. This case appears to fit the description of “inconvenient conception”.

Further, the Cairns case is unique in that there is no doctor involved. Politicians tend to delegate the abortion question by saying, “Abortion is a matter between a woman and her doctor”. Here, there is no doctor to hide behind. So “abortion is a matter between a woman and her (alleged) illicit drug supplier”.

Any stick will do to demolish our abortion laws, and even this strange case provoked a small rally in Brisbane featuring Greens Senator for Queensland, Larissa Waters, who demanded that we “get these laws off our books”. At these rallies it is as if the baby does not exist, as if there is no tiny beating heart which is stopped by the violence of abortion. Silent innocence is no match for noisy narcissism. The only “crime”, they say, is the crime of interfering with a woman’s absolute right to decide if she is ready to be a mother.

But a woman is already a mother, for better for worse, from the moment she is “with child”. And there is no right to take an innocent life. Consenting adults who conceive a child have a duty of care to their child that cannot be abrogated. The law must uphold that duty, and uphold the fundamental prohibition against intentional killing.

How, then, is the law to be effective? With the 99.9 per cent of abortions that are performed by doctors the pro-life movement prefers that no penalty be directed against the woman - who in many cases suffers a penalty in her own body and heart as the second victim of abortion, who in many cases is pressured into having an abortion she never wanted, and whose generation has been brainwashed into believing that the distinct and dynamic new life within the womb is just a “clump of cells”. The law would achieve its goal of deterring abortion if the penalty was directed against the doctor who performs an abortion, who knows that he is extinguishing a human life, who knows that almost none of the abortions are medically or legally justified, and who profits from his actions. In the Cairns case, however, there is no doctor involved.


One way or another, the law must deter adults from taking a life that is not theirs to take. If Queensland abolishes the current law and adopts the barbaric Victorian model as demanded by abortion activists, that would mean a baby can be aborted up to 24 weeks - older than some babies in our hospital nurseries - with no medical justification required, and by the most unspeakably cruel methods. On the colluding nod of two abortion clinic doctors, the license to kill extends right up to birth, even for entirely healthy but “unwanted” babies of entirely healthy mothers.

In the Victorian model, any doctor who conscientiously objects to facilitating these “on demand” abortions has committed an offence. Leading human rights lawyer Frank Brennan called this Victorian legislation “totalitarian”.

The existing Queensland law is an essential defence for doctors and nurses who refuse to co-operate in the unjustifiable killing of babies. The existing law is also a defence for women who are being pressured into abortion. They can and do appeal to the fact that “you cannot tell me to do something that is against the law”.

As family doctors we see too many good-hearted women whose inner lives have been wounded by abortion - having created a place of death in their own body. As a nation intent on spiritual and demographic suicide, we already take the life of every fourth baby before birth, an entire primary school each day. “Children”, as writer Bob Ellis put it, “who would have loved you”.

At stake in the abortion debate is the baby’s fundamental right to be left alive and unharmed, the mother’s need to receive social and emotional support at a time of great distress, and a lawmaker’s duty to reject legislative changes that would further brutalise the most essential relationship in society, that between mother and baby.

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About the Author

Dr David van Gend is a Toowoomba GP and Queensland secretary for the World Federation of Doctors who Respect Human Life.

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