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Thursday, 10 May 1973
Page: 1963

Mr McKenzie (Diamond Valley) - I move:

That the Bill be now read a second time.

This Bill has excited a great deal of comment in the Australian community; it has excited a great deal of comment in thisParliament. I think I should first of all explain why I have introduced this Bill. During the election campaign I made various statements - that I believed this was a matter of conscience; It was a matter primarily for the woman and her doctor; it was primarily a matter of choice. I believe that when I was given an opportunity to present this measure I, in my conscience, could do nothing else but move it.

I believe that these sort of things ought to be discussed in this Parliament. I believe they ought to be discussed in the way in which I hope this debate will continue. I believe that on a matter on which opinions between parties and within parties is so deeply divided there ought to be an opportunity for an expression of conscience. During the course of this present campaign when I was asked how so-and-so on the other side of the House stood on this matter I refused to give any information whatsoever. My reply on those occasions was: 'This is a non-party issue. It is up to the members on the other side of the House, if they so wish, to express an opinion; otherwise I respect their privacy I hope this debate will be conducted in a manner befitting the dignity of this chamber. I realise it is a very emotive issue, but there are important factors involved and I hope that we would all have sufficient maturity to be able to discuss the matter in a befitting manner.

This is a very complex problem. Law reform will not settle it. It will not be solved by that sort of approach but it is part of the approach. I see it as really one of the sides of a triangle. The first side is the need to have proper laws and proper procedures to regulate the matter. One other side of the triangle is that we ought to have much better sex education by properly qualified people and we should have adequate education in the use of contraceptives. The final side of the triangle, as I see it, is the question of social welfare - how the community supports those people who are less fortunate than others and how we tackle it at that level.I think it is appropriate to quote some of the clauses of the Bill. 1 suppose he most contentious clause from the point of view of the framework of the Bill is clause 7, which sets out in the first instance the conditions for the lawful termination of pregnancy. It states:

7.   Subject to this Act, it shall be lawful for a person to terminate the pregnancy of a woman who is not more than twelve weeks pregnant provided that the person-

(a)   is a medical practitioner;

(b)   has reasonablec ause to believe and does, in fact, believe that the woman has been adequately and carefully advised concerning procedures alternative to termination open to her and concerning any institution or person of a public or private character including government departments and social agencies which may be willing to offer the woman, and if she bears a child, the woman and her child, financial and other assistance;

(c)   acts at the request of the woman; and

(d)   exercises professional care in performing the termination.

I will be making some more comments on the rationale behind that later. During the course of the discussion, public debate and letter writing my seconder and I have received a number of suggestions for and against the Bill, expressing different points of view. We listened to the suggestions that were made and we made changes. Anyone who thinks that he or she has all the answers on this, I believe, makes a big mistake. First of all we reduced the period mentioned in the clause that I just read out to the House from 16 weeks to 12 weeks. This was done on the very best of medical advice. We included an advice provision, which I read out as part of clause 7. We believe that women ought to know precisely what the situation is. We made it obligatory that information about contraception be provided by the doctor. Last of all we strengthened and made even clearer the clause relating to conscientious objection. I think it is so important that 1 should read it. Clause 1 1 (1) state:

No person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any termination of pregnancy to which in the circumstances he has a conscientious objection or about the wisdom of which he has a doubt founded on medical grounds or in which he for any other reason declines to participate.

Sub-clause (2) states:

No person shall be liable to any penally, disadvantage, handicap, discrimination or proceedings of any kind whatsoever by reason of that person failing or declining to participate in a termination of pregnancy, and evidence of such failing or declining to act shall not be admissible in any proceedings or otherwise taken into account. 1 ask the critics of the structure of the Bill to consider that particular clause because I believe it is a great deal stronger and affords much more protection than any similar clause in any other legislation in Australia, England or. I believe, the United States of America. The history of the law on this matter, of course, is long. There have been legal codes on this right back through civilisation. But with English law, from which our law is derived, the situation is that until 1803 England had no specific law on abortion. In that year, as part of an Act which contained provisions as to a wide number of offences including, for instance, defrauding of insurance companies, there was a mention of procuring a miscarriage. lt is quite evident from the wording of that Act that the intention was to preserve the life of the woman involved in an abortion. It must be understood that in those days any operation was extremely dangerous due to likely infection and particularly so in such operations as abortions. Because of the high mortality rate of women involved in abortions it was found necessary to pass this particular Act. This legislation was later redefined in the Offences Against the Person Act 1861. This Act was the basis for the law on abortion in Australia and remains the basis in all States and the Territories except South Australia.

Of course, there is a difference between statute law and case law. Recent rulings in Australian courts, such as the ruling given by Mr Justice Menhennitt and the ruling by His Honour Judge Levine, make it clear that when an abortion is performed by a qualified medical practitioner and the doctor claims that the operation was performed in the interests of the patient, conviction is very unlikely. Unfortunately the situation in practice means that those women who are well informed about the necessary procedures and/ or have sufficient money are more likely to be able to obtain a termination of pregnancy than a woman less well informed and/ or who does not have sufficient funds. I believe that this is discrimination of the worst type. We have a responsibility to do something about it. As I said before, it is not a matter of whether one agrees with abortion - I do not, and very few people do - but whether, when it does happen, it happens under the most favourable conditions. People who have enough money can get an abortion on request, but what about other women? This situation has gone on for many years. It is about time we stopped it. The present law in the Australian Capital Territory is derived by ordinance from the New South Wales Crimes Act of 1900. Clauses 82 and 83 are the main clauses and attract the major penalties. They state:

82.   Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing; or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to penal servitude for 10 years.

83.   Whosoever unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing; or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to penal servitude for 10 years.

This is a very repressive piece of legislation but, as I pointed out, by the rulings by case law it has been quite modified. However I do not believe that answers the situation by any means. I do not believe that women ought to have to go through a series of legal and medical gymnastics in order to obtain something that they have chosen to obtain. I believe it is truly a matter of conscience. It is unfortunate that due to the present structure of the law in the Australian Capital Territory it is not possible for the people of the Australian Capital Territory to consider this matter fully; nevertheless through the Australian Capital Territory Advisory Council they have expressed an opinion on a number of occasions. On one occasion the Council stated:

The Council is of the opinion that the present laws "applicable to the A.C.T. relating to 'attempt to procure abortion' are no longer in accord with the community's views and attitudes on this question and specifically make no provision for the special circumstances under which abortion should be permitted by law.

This has been a traumatic point of discussion in just about every country. The United States of America, which also derived its law initially from England, has over recent years drastically revised its approach to the problem. In September 1969 the Supreme Court of California, in the first decision on the constitutionality of any anti-abortion statute, invalidated the pre-1967 anti-abortion law of California. In a 4 to 3 decision the Court held the statute unconstitutional on 2 principal grounds: Firstly, that the phrase 'Necessary to preserve life' was so vague as to be violative of the due process requirements for a criminal law, and, secondly, that the law was in violation of a woman's fundamental rights to life and to choose whether to bear children. The latter follows from the United States Supreme Court acknowledgment of a right of privacy or liberty in matters related to marriage, family and sex. The critical issue defined by the California Supreme Court was whether the state had any legitimate interest in the regulation of abortion which would justify so deep an infringement of the fundamental rights of women. The Court held that the state had no such compelling interest.

Later, on 22nd January of this year, this was confirmed by the United States Supreme Court. It is a long decision but basically, by a majority of 7 to 2 the Supreme Court laid down that in the first 3 months of pregnancy the decision whether or not to abort is a matter between the woman and her doctor and the state cannot interfere with their judg ments on the matter. In the second 3 months of pregnancy the state may regulate abortion procedures in ways that are 'reasonably related to maternal health', such as the licensing of doctors and clinics. When the foetus becomes 'viable', that is when it could exist outside the woman, that state has an interest in protecting the unborn child and 'may go so far as to prohibit abortion during that period, except when it is necessary to preserve the life or health of the mother'.

I point out to the House that this Bill follows closely the decision handed down by that Court in January this year. In fact, because of the various clauses that have been put into it, it is much better defined and in many ways more restrictive. The British position has been quoted a great deal. Towards the end of last year Sir George Godber who is the Chief Medical Officer of the Department of Health and Social Security in a letter appearing in the British 'Medical Journal' complained that there has been selective and incomplete quoting from his report on maternal deaths. He wrote:

It is beyond dispute that deaths attributed to abortion are now at a sustained low level compared with the years 1961-66.

He also wrote:

Deaths attributable to illegal abortion have fallen from a level around 50 per year through the early 1960s to IS in 1969 and 11 and 6 in the 2 subsequent years.

It is interesting to note that these figures from Britain show an improvement in the position despite the fact that if a woman applies to an unsympathetic doctor she may well find that she cannot obtain an abortion under the national health service and subsequently is forced to go outside the law. During the course of the public debate many statements have been made to the effect that reform of repressive abortion laws leads to dangers. In the English context the Wynn report is said to give most support. I believe that this report has been circulated to all honourable members. However, the report has been described by Dr Malcolm Potts, the Director of the International Planned Parenthood Federation, as 'biased, highly emotive, and in at least one of its statements totally incorrect'. However, illegal and badly performed terminations conducted relatively late in pregnancy can have serious after effects. The Wynn submission to the Lane Committee is in reality a good argument in favour of legal and controlled procedures rather than illegal ones.

Medical opinion, as is the case with other opinion in the community, is divided. The following motion was carried at the May 1971 General Council Meeting of the Australian and New Zealand College of Psychiatrists:

That a majority of the membership of the Australian and New Zealand College of Psychiatrists supports the view that there should be an alteration in laws on abortion so that legally qualified medical practitioners are free to exercise clinical judgment in this as in other matters.

Perhaps at this time it is appropriate to quote from a book by Daniel Callahan titled'Abortion: Law, Choice and Morality' which has just been reviewed in Australia. He says:

Abortionis a nasty problem, a source of social and legal discord, moral uncertainty, medical and psychiatric confusion, and personal anguish. If many individuals have worked through a position they find satisfactory, the world as a whole and most societies have not. There is scarcely a nation in the world which believes it has discovered the perfect solution to the legal, social and medical problems of abortion. On one point only is there a global consensus: the medical danger of underground abortions.

A week ago today the General Assembly of the Presbyterian Church agreed to a motion in the following terms:

(a)   recognise that Christian people, who have reflected upon the matter, conscientiously hold differing views on abortion, and that in such circumstances Christians are called to learn from each other in a spirit of humility and tolerance;

(b)   recognise that in a pluralist society the law may permit provision for abortion of which some Christians may not want to take advantage;

(c)   acknowledge that the reform of the law governing abortion is a matter for Slate legislatures.

The rest of the motion went on to refer the matter to the various States. At this stage I seek leave to incorporate in Hansard the report that went before the assembly.

Mr SPEAKER - Is leave granted? There being no objection, leave is granted. (The document read as follows) -


(Convener 20, Seconder 10 minutes)

Abortion Law Reform

The Committee has given further attention to this question during the period since 1970. It has become an ever more vocal matter since then, and will continue to increase in tempo until it is taken seriously and with the objectivity it deserves by all responsible people.

British and Continental reforms, despite soma opposition mainly of a religious nature, appear to be permanent, with the possibility that the very term abortion' may be expunged from statute books in some countries in the forseeable future. It is perhaps not sufficiently known that there was no statutory legislation on the subject in England until the 19th Century.

The Committee is not requesting the Assembly to assert that abortion is ever a good thing. It is requesting the Assembly to recognise that abortion in certain circumstances may be the right action, and to seek the lifting of legal sanctions from State criminal laws. Undeniably, a great many abortions occur in Australian society every year, perhaps as many as 100,000. Our present political arrangements discriminate against the poor and the ignorant. The Church has an obligation to redress this imbalance and to enhance the value of human beings.

Further to the statements made by this Committee in B.B. 1970 Pages 104-105 the following considerations should be noted:

(a)   It used to be thought that a perfect egg and a perfect sperm combined to make an almost perfect embryo. But this is not so. Large numbers of abnormal sperm are produced (and probably also of eggs, although these are more difficult to study). A third or more of fertilised eggs are severely abnormal and nearly all the abnormal ones fail even to implant in the uterus. The woman does not even know that she has conceived. Of the eggs that do develop sufficiently to delay menstruation,15 or 20 per cent abort spontaneously. Biologically spontaneous abortions must be regarded as a healing process, without which society would be burdened with an intolerable level of congenital abnormalities of the grossest kind. The relatively few abnormal babies that do survive until delivery are, in biological terms, mildly afflicted compared with those aborted earlier. In fact a severely abnormal baby may be best understood as a failure of the protective mechanism of spontaneous abortion, rather than as an unusual error of development - for errors are so numerous as to be almost normal.

Thus there is a biological mechanism for determining and guarding the quality of life. It is a human privilege and responsibility to assist nature by exercising judgement and decision to further enhance the quality of life. Thus abortion is not a monstrous act of murder, but an act in which natural processes are directed and controlled by submitting them to the processes of rationality and human decision.

(b)   One of the arguments urged by the National Right to Life Association is that abortion is the slaughter of theinnocent unborn' human being. Evidence for this assertion is allegedly found in the fact that the fertilised egg cell contains human DNA. What the polemic does not note is that every spermatazoa and every egg-cell also contains DNA. We are not entitled to conclude that every sperm is therefore a human being.

(c)   A Swedish study has shown that children of mothers refused abortion are worse offin respect to their later dependence on psychiatric treatment, delinquency rates, school failure, and need for welfare aid as compared with a matched group of wanted children. This study supports the view that legal sanctions against abortion adversely affect the quality of life of those who are born as a result of the abortion being withheld.

(d)   Nor does Abortion lead to the tragic psychological disturbance foreshadowed by opponents of Abortion Law Reform. 'Abortion, far from being a precipitator of psychiatric illness, is actually a defence against it in women susceptible to mental illness.' (Psychiatrist Jerome Kummer, Harvard.) Giving up a child for adoption is a much more traumatic experience for the mother than abortion. While psychosis following childbirth occurs in a total of 4,000 U.S. mothers each year, there are comparitively few cases of post-abortion psychosis.

(e)   The Assembly should also take note that new chemical compounds now being developed (called prostaglandins) will make it possible to produce abortions at any time after implantation. This development will revolutionise the whole concept of abortion. It will be established that abortion in the first weeks of pregnancy is little or no different to normal menstruation.

(f)   In January 1973, the U.S. Supreme Court ruled that anti-abortion laws represent an unconstitutional invasion of privacy that interfere with a woman's right to control her own body. The court further divided the 9 months of pregnancy into 3 segments with different legal status for each. The State would have increasing responsibility for the foetus as the pregnancy proceeded through each stage. The Committee believes that this approach is rational and fair. The most thorough survey yet undertaken on Australian attitudes to abortion, conducted by Professor Caldwell and Dr Ware of the Australian National University, shows clearly that opposition by all sections of the community to liberal abortion legislation is diminishing.

These considerations reinforce the conviction of the Committee that the State criminal laws relating to abortion should be amended to make it possible for women to undergo abortion on the advice of their duly qualified medical practitioner. B.B. 1970 Min 120 (4) deals with approval of agencies giving help and advice to those contemplating abortion. Counselling resources need to be supplied for those requiring these services.

Mr McKenzie (Diamond Valley) - As is the case with other denominations, many Catholics take the point of view that it is wrong and dangerous to use the machinery of the state to maintain a particular view of morality. One Catholic to express this point of view is Father Robert Drinan S.J. who has said that he prefers complete repeal of abortion laws which would keep the state out of the business of decreeing who is to be born. A statement issued by the Roman Catholic Bishops of England and Wales in 1966 - this was before the English law was passed in 1967 - was as follows:

Catholics do not demand that their own convictions should be imposed by law on all citizens but they are concerned that doctors, nurses and others who may be affected by the proposed legislation should not be forced to act against their own consciences.

I agree with that statement. I think it is adequately covered in the Bill.

Father John Reedy C.S.C., in the United States of America, a respected American theologian, said:

The religious simplists who reduce all efforts at liberalised abortion laws lo 'anti-life propaganda' do a disservice to us all. We know loo many good, sincere, responsible people who seek the liberalisation of these laws precisely to improve the quality of life. They recognise the outrage of bootleg abortion rackets; they know that existing laws have not prevented desperate girls from submitting themselves to dangerous, degrading treatment at the hands of criminally incompetent quacks. They know that single and married women are at times so threatened by the thought of bearing a child that their own welfare - possibly the welfare of a family- is seriously threatened. I'm not arguing that this judgment is right . . . simply that unworthy motives should not be irresponsibly attributed to the people who defend it. This will make me unpopular with many Catholic spokesmen, but I believe that a Catholic, after serious examination of facts, theology and his own conscience, could responsibly support some liberalisation in abortion laws. (For example, on the assumption that the present laws produce greater evils).

There is clear evidence that in France, for instance, which has repressive laws, there are two and a half times as many abortions performed as in England. This is despite the fact that England has a reasonably liberal law while France has a repressive law. The main difference between the 2 countries is that the British are well advanced in their use of contraceptives and the French are not. Italy is estimated to have as many abortions as live births.

The arguments about repressive laws reducing the number of abortions is nowhere supported by the facts. In fact there is much more correlation between education in the use of contraceptive measures in a community than there is between permissive or restrictive laws. Of course, the law is only part of the problem. Regardless of whether a country has a permissive law, as in Hungary, or a repressive law, as in Italy, the number of abortions, illegal or legal, is directly related to the use of contraceptives. Statements that liberal abortion does not reduce maternal mortality are not supported by the facts. In New York the maternal mortality rate fell from 5.3 per 10,000 to 2.9 per 10,000 in the interval spanning the repeal of the previous law. Most of the arguments I have heard during the public debate are arguments against abortion, not arguments against abortion law reform. I think we should differentiate between those two.

There is the intellectual dishonesty of those who talk about alternatives to abortion and fail to mention the only real alternative - practical and effective contraception. It is interesting to note that many of the same arguments were advanced against contraception as are being advanced against this Bill. One has only to go back in history to see that this is true.

I do not believe that abortion can ever be thought of as desirable from the point of view of contraception, but it is really a question of how the law is operating and how it should operate in the future. One of the big problems is that many women do not understand the difficulties associated with contraception. Unfortunately, no contraceptive is 100 per cent safe. The failure rate varies between 20 per cent over the period of use for the safest methods lo 80 per cent for other methods. The real problem here is not with unmarried women but with married women. Family planning facilities must not only be readily available but also be known to be available. Every effort must be made to make them work. Statistics in England show that there has been an increased usage of contraceptives since the passing of the. present legislation. Any Act which does not give the woman concerned a reasonable amount of choice during the early stages of pregnancy is doomed to failure. It just will not be obeyed.

Some people claim that adoptions are the answer to the problem. Statistics show that much greater psychological damage is done to the woman who is forced to have her baby adopted than is the case with an abortion. Many women become pregnant again shortly after consenting to an adoption. Some never get over the sense of loss. I believe that a woman has the right to choose. In response to a survey of over 2,000 women conducted in Sydney and Melbourne by the Women's Electoral Lobby, an overwhelming number of women answered in the affirmative the question: Do you believe a woman has a right to an abortion if she wants one? The use of the term 'abortion on demand' has been an obvious ploy to discredit this legislation. It is a statement which is not supported by the facts. I hope that this debate for the remainder of the time allowed will be conducted on a calm and rational basis. I realise that this is a highly emotive issue. However, nothing will be gained by this Parliament considering it on an emotive level. Whether they hold one point of view or another, the great majority of Australians would wish to hear the debate conducted in a rational manner.

There will always be some risk in abortion, but the risk of continued pregnancy is often greater. I am strongly of the opinion that the state has no right to compel a woman to accept that risk. We ought to do something positive about the problem. Leo Tolstoy once said:

I sit on a man's back choking him and making him carry me and yet assure myself and others that I am sorry for him and with to lighten his load by all possible means - except by getting off his back.

The legislation is to try to do just that - to take the power of repressive laws away from women in this community.

Abortion is always the last resort. It may be the last resort due to all sorts of factors but it is nevertheless a last resort. I ask those people who are so loud in their criticism to show real compassion for women in this situation. I believe that no one, least of all any member of this House, can ever really understand how a woman feels in this situation. It is a terrible choice for her to make. I do not believe that the law should interfere overtly in this situation. In effect, what those people who oppose the Bill do is to force those women who have already decided that an abortion is the only solution to the situation they find themselves in to delay until there is a real possibility of complications. The earlier a pregnancy is terminated the better.

I respect the opinion of those who hold a contrary point of view but to me and to most people there is a great difference between a fertilised ovum and a foetus of 6 months gestatation. I thank the people who have written to me. I may not agree with ali the letters but I have read them. I appreciate why they have written them. I just hope that this Parliament will be able to resolve the matter either today or at some other time either by passing the Bill or by way of some other amendment to do something positive about this problem. Never again I believe after this debate will we be able to sweep this question of abortion under the carpet. The community must make a series of choices. Not all of them are pleasant choices because we are all individuals, we all have different points of view and we all suffer under different circumstances. I ask that this House give very serious consideration to this Bill. I know that it will. I ask that the House consider it in a spirit of compassion and in a spirit of trying to alleviate what is a very difficult problem.

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