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Who’s confused?

By Helen Pringle - posted Thursday, 23 August 2007


In her article in On Line OpinionHigh price to be paid if abortion reform bid fails”, Leslie Cannold supports efforts to reform the law on abortion in Victoria, on the grounds that the current system is “confused”.

Cannold seems to think that she is one of only a few people who believe that the system is confused. In fact, this is a very widely held view, frequently voiced by doctors, such as in a widely-quoted 2004 article by Lachlan de Crespigny and Julian Savulescu in the Medical Journal of Australia, which called for the reform of Australia’s abortion laws on the grounds that they are uncertain - and confused. However, the confusion on abortion seems to lie less in the system than in the writings of its commentators.

In making her case for reform in Victoria, Cannold sets out two main claims about the inadequacy of the current system. First, that it is confused. Second, that this confusion scares doctors away from performing abortions.

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Cannold identifies the confusion in the system as the situation where “the criminal law prescribes jail for women and doctors who “procure miscarriages”, but the common law forgives their felonious behaviour in cases where the abortion is deemed proportional and necessary to prevent serious danger to the women’s life or health”. Cannold is simply wrong here: the criminal law in Victoria does not prescribe jail sentences for those who “procure miscarriages”, nor does the common law “forgive” such allegedly “felonious” behaviour.

In Victoria, the statutory provisions on abortion are to be found in the Crimes Act 1958. The central provisions on abortion are as follows, set out under the rubric “Attempts to procure abortion”:

§65. Whosoever being a woman with child with intent to procure her own miscarriage unlawfully administers to herself any poison or other noxious thing or unlawfully uses any instrument or other means, and whosoever with intent to procure the miscarriage of any woman whether she is or is not with child unlawfully administers to her or causes to be taken by her any poison or other noxious thing, or unlawfully uses any instrument or other means with the like intent, shall be guilty of an indictable offence, and shall be liable to level 5 imprisonment (10 years maximum).

§66. Whosoever unlawfully supplies or procures any poison or other noxious thing or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether with child or not, shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum).

Similarly worded provisions form part of the criminal law in most other states and in the Northern Territory.

It is clear from these provisions of the Victorian Crimes Act that procuring a miscarriage is not a crime per se. (It should also be noted in passing that Cannold’s reference to the term felony is inapplicable to the criminal law in Victoria, and other Australian states, where the distinction between felony and misdemeanour has been abolished, unlike in the USA.) The Crimes Act identifies only unlawfully performed actions as punishable. That is, the very inclusion of the word “unlawfully” suggests, and has been taken by courts to mean, that actions to procure a miscarriage can be undertaken lawfully, and that not every attempt to procure a miscarriage is prima facie criminal.

Hence if not all persons who procure miscarriages are to be held to account for unlawful actions, the imposition of criminal sanctions will very much hinge on what is defined as unlawful.

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The statutory provisions of the Act offer little help in defining the quality of lawfulness in the context of abortion. There are other considerations that do have a bearing on this definition, some of which are other statutory provisions. But perhaps the most important area relevant to the definition of lawfulness is case law. The specific criteria of lawfulness in regard to abortion in most Australian states are set down not by statute but by case law.

The meaning of “unlawfully” in regard to abortion was elaborated in 1969 by Judge Menhennitt in R v Davidson, a case in which Dr Davidson faced criminal charges in connection with procuring the miscarriage of a woman. In a statement of law during the trial, Judge Menhennitt explained the meaning of lawfulness as involving the following conditions:

... the accused [the doctor] must have honestly believed on reasonable grounds that the act done by him was (a) necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; and (b) in the circumstances not out of proportion to the danger to be averted (R v Davidson [1969] VR 667, at 672).

Davidson was subsequently found not guilty on all counts.

In his statement of law, Judge Menhennitt drew on the 1939 English case of R v Bourne, which concerned the prosecution of a surgeon for performing an abortion on a young woman who had been the target of a ferocious rape. In that case, Justice Macnaghten had given what he considered a “reasonable” interpretation of the meaning of preserving the life of the mother in these terms: if “the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother” (R v Bourne [1939] 1 KB 687, at 694).

The phrase “preserving the life of the mother” has, on the basis of this precedent, been interpreted in a broad sense. For example, Justice Macnaghten noted that it was not always easy, or even necessary, to draw a line between health and life as being endangered, and he carefully noted that it was not necessary to wait until the woman’s death was imminent before action became lawful on the stated criteria.

In 1971, Judge Levine in the NSW District Court followed the precedent of Davidson in R v Wald, a case again involving the criminal prosecution of doctors for performing abortions. Judge Levine stressed that the reasonableness of a doctor’s belief as to necessity is a matter for a jury to decide, and phrased the test of lawfulness in these terms:

... it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health (R v Wald (1971) 3 NSWDCR 25, at 29).

Judge Levine added that the reasonable expectation of serious danger to mental health if the pregnancy continued was also relevant. The distinctive contribution of Judge Levine to the clarification of the legal position on abortion is generally held to be his addition of “economic” and “social” considerations into the formula.

In the absence of any more precise statutory directions, the Davidson and Wald formulas are generally taken to form the basis of the understanding of lawfulness in regard to abortion. There is some debate about whether Davidson and Wald clarify the constituent parts of the offence, or outline a defence to the charge. But nobody has ever suggested that the common law “forgives” offences in this area (or in any other). Indeed, it would be quite improper for the common law to elicit pleas for forgiveness, or to grant such pleas.

Cannold’s second main claim is that the confusion she sees in the system makes criminal prosecutors eager to lay charges, and hence makes doctors nervous.

She argues, “The retention of statutes only rarely enforced makes the law an ass. It also allows anti-choice crusaders wedged at various points in the legal system to prosecute whenever they choose.”

This is a very odd view of how Offices of Public Prosecutions work in Australia. And it is actually not at all clear why the infrequent enforcement of laws would allow the officers in such places to “prosecute whenever they choose”. In fact, the relative infrequency of prosecutions under abortion laws could conceivably just as well be adduced as evidence for a claim that the law is working well in restraining criminal behaviour.

Moreover, the examples Cannold uses to illustrate her thesis of over-zealous prosecutors do not serve her case. In 1986, Drs Bayliss and Cullen were acquitted of criminal charges, with the judge following the precedents of Davidson and Wald in directing the jury (R v Bayliss & Cullin (1986) 9 Qld Lawyer Reps 8). In 1998, the charges against Drs Chan and Lee were dropped after the law was reformed in Western Australia. And Dr Lachlan de Crespigny was not prosecuted at all, despite Cannold’s implication that he was: he was not “cleared” because he was never charged. (Moreover, the claims made by Senator MacGauran in regard to that case concerned “child destruction”, not the unlawful procuring of a miscarriage.)

Cannold offers no evidence for her assertion that “when one doctor is prosecuted the rest get nervous, reducing the services they provide and so undercutting women’s access to timely, professional care”.

Some doctors in Tasmania claimed to have developed nerves for a short period after a complaint was made by a medical student to police in 2001. But there is no evidence that abortion services were reduced after the prosecution of Dr Sood (see further links to this case at the end of the article) in New South Wales in 2006, for example. Indeed, apart from the case of Dr Sood, there seems to have been no successful prosecutions of doctors for unlawful procuring of miscarriage since the early 1970s, and in Victoria, not since 1969. (A possible exception is the 1981 case of Dr George Smart in NSW, where the facts resembled those in Sood’s case; Dr Smart died before his appeal was heard.)

What is more, in both criminal and civil cases in regard to abortion since the 1970s, no doubt has been expressed by any party as to whether the Davidson and Wald cases represent the law in this area.

So where is the confusion?

There is no legal provision or authoritative understanding specifying that abortion, of itself, is illegal in Victoria, or elsewhere in Australia. Moreover, there is no provision in the law specifying that all actions in procuring a miscarriage, terminating a pregnancy, are unlawful, criminal or illegal.

As to the approximately 80,000 medical abortions actually performed by doctors in Australia each year (Australian Parliamentary Library, How many abortions are there in Australia? Research brief, February 14, 2005), none is a crime by definition because nobody has been successfully prosecuted in relation to any of them, with the exception of the Sood case. Actions that are not presented to courts for prosecution, but which are nevertheless claimed or rumoured by some person to be illegal or criminal, fall outside the province of judicial deliberation.

The law on abortion is what the law is interpreted to be at present, it is in force, and it is not confused. The law on abortion might be complex, but no more so than any other area of the law where complexity is the price of precision.

There is indeed much confusion in the public, and its educators like Leslie Cannold, about the legality of abortion. But to claim, as Cannold does, that procuring an abortion is in itself a criminal offence in Victoria or elsewhere in Australia, simply adds to that confusion.

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About the Author

Helen Pringle is in the Faculty of Arts and Social Sciences at the University of New South Wales. Her research has been widely recognised by awards from Princeton University, the Fulbright Foundation, the Australian Federation of University Women, and the Universities of Adelaide, Wollongong and NSW. Her main fields of expertise are human rights, ethics in public life, and political theory.

Other articles by this Author

All articles by Helen Pringle
Related Links
R v Sood (Ruling No 2) [2006] NSWSC 732
R v Sood [2006] NSWSC 1141
R v Sood [2006] NSWSC 695
Sood v R [2006] NSWCCA 252

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