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Thursday, 10 May 1973
Page: 1969


Mr LAMB (La Trobe) - I second the motion. For too long, abortion along with the ugliness that is associated with it has been ignored as if by tacit agreement. Abortion is an emotional subject for it touches upon the whole process of life, the quality of life and involves not only citizens but doctors, theologians and legislators. The present law concerning abortion is in urgent need of reform. Consider a law that deprives women, of whom half are married, legal abortions on request and so causes untold misery, hardship and exposure to squalid dangerous surgery at the hands of 'backyard' abortionists. It is a notorious fact that women determined to have an abortion will not be deterred from their objective in spite of its illegality, after being refused by a doctor. They will risk legal penalty and even death to rid themselves of an unwanted pregnancy.

It is said that any woman who wants an abortion can obtain one under the present law. It is true that women with money and connections can obtain an abortion from a competent and cautious doctor operating in an efficient suburban clinic. However, the majority of women are forced to go to the unqualified 'backyarder' abortionist who profits on the restrictions of the law at the expense of these women. We should not allow the health and the lives of women to be threatened by these people. We cannot allow the reproductive capacities of these women to be destroyed or damaged by bungled abortions. If there is any amendment to this Bill I would like to see the penalties against these unauthorised abortionists increased. It is impossible to make any accurate estimate of the number of induced abortions performed in either the Australian Capital Territory or Australia. However, calculations based on police and hospital records, comparative figures from overseas and local surveys on the incidence of abortions indicate that about 75,000 to 100,000 abortions are performed yearly in Australia. Most of these abortions are illegal.

Consider a law that allows this number of illegal abortions to take place without any prosecutions. It is an unenforceable law because most peope do not regard abortion as murder. Juries refuse to convict as in the recent 'Heatherbrae' case decided in Sydney in October 1971, and State governments make no move to tighten the law. Society does not equate abortion with murder. Probably the most extensive survey done on attitudes to abortion in Australia was carried out by Caldwell and Ware of the Australian National University during 1971. They concluded that, in their metropolitan survey, 32 per cent supported abortion on demand, and that, after analysing the results of other questions, more than half of the community clearly approved of abortion on request. Furthermore, adamant opposition to any legalisation of abortion was maintained by no more than 14 per cent of the sample. This study seems consistent with both an Australian national opinion poll of March this year and this week's gallup poll in which 23 per cent favoured abortion on demand and 86 per cent favoured abortion on demand or under certain circumstances. The only conclusion that can be drawn is that the great majority of people consider abortion is a matter between a woman and her doctor, and that the law has a limited place in the matter.

Consider a law so vague and in need of clarification that it does not allow a doctor to carry out his medical and clinical judgment. Afraid of prosecution and uncertain of their rights under the law some doctors are refusing women an abortion when they are in need. This is also the situation in the United Kingdom. In their submission to the Lane Committee during the inquiry into the workings of the 1967 Abortion Act the Royal College of Obstetricians and Gynaecologists, in section 68 of its report, requested clarification of the law concerning abortion so that gynaecologists can continue to apply their knowledge and skills to serve their patients as they think best, and this without fear of litigation unless they are professionally negligent in the ordinary sense of the term'.

Clarification of the law as it operates in the Australian Capital Territory is the major purpose of the Medical Practice Clarification Bill. Members of the medical profession can no longer be placed in the position where they may confuse law with ethics. Furthermore this Bill provides that no doctor may be forced to carry out an abortion against his conscience, judgment on evaluation of medical ethics. This Bill is truly for abortion on on request and not abortion on demand. Consider the hypocrisy of a society that expects a woman to bear children against her will and then does little to support those children if in need or even suggests adoption so that other women can be happy at her expense. Most unwanted pregnancies result in an unwanted child - a child subjected to emotional and material deprivation and one more likely to develop into a deprived and unwanted adult. Social workers inform us that every child who is born unwanted is more likely to swell the ranks of the social misfits. Who would argue with the moral slogan 'Every child has the right to life'. I venture no-one, least of all members of this House. But who would look beyond the rhetoric of what is implied in that slogan by anti-reformers and ask what is meant by 'child' and what is meant by life without quality? That same moral slogan can be better and more accurately expressed as Every child has the right to be wanted'.

Bad laws, unenforceable laws, unpopular or unworkable laws all contribute to making the law 'an ass'. The present law on abortion is such a law - unrealistic and hypocritical, and should be reformed. Parliaments have not faced up to their responsibility to society in ignoring the ugliness of abortion. Parliaments have not protected all the rights involved when they force women to bear children against their will. Currently a woman can have no ultimate choice on this matter unless she breaks the law. This lack of freedom of choice cannot be accepted by people who respect basic individual rights. Governments which deny their responsibility by failing to provide efficient family planning programs and then prohibit abortion on request can only be described as architects of double standards. I warn this wholly male House that it is because we are males there is a great danger that we will ignore the needs and rights of women in this matter. Laws are made by men, sanctioned by a male dominated church hierarchy and imposed largely by policemen, and yet we will never bear children ourselves.

I warn those who oppose reform that they must show beyond doubt how they will enforce the law and charge those whom they consider as thousands of murderers, how they will prevent the tragedies of illegal abortions and how they will demonstrate their concern for the child batterings that result from unwanted children. They must also show beyond doubt that they can better the benefits to society and individuals that have accrued overseas following the liberalisation of abortion laws. Statistics show that, following reform to abortion on request in the early stages of pregnancy, the incidence of morbidity and mortality due to abortion has dropped because abortions are now carried out under proper conditions. Illegitimacy has declined. Because abortions are more likely to be carried out earlier in the pregnancy there are less mental and physical complications for the woman and backyard abortions have almost ceased to exist. They must convince society that they will eradicate police corruption associated with illegal abortion such as that uncovered in Melbourne during the Kaye inquiry.

There is not necessarily an increase in the number of abortions following abortion law reform. The main increase in legal abortions results from the transfer to open and legal abortions from illegal abortions, and from overseas or other areas where the law is less liberal. Sir George Godber, the Chief Medical Officer of the Department of Health and Social Security in the United Kingdom, published a letter in the British 'Medical Journal' of 18th November 1972 in which he stated: the number of legal abortions has increased greatly but seems to be reaching a more stable level.

But total abortions will not drop until reform is linked with an adequate and coherent family planning policy. This is the main criticism that can be levelled at the United Kingdom legislation. Family planning by way of contraceptive advice is part of this proposed legislation. The Bill is unique in that it provides that following termination of pregnancy it shall be incumbent upon the doctor to advise the woman of the use and availability of contraception appropriate for her.

But the responsibility of the state should go much further, for the incidence of abortion is a function of the use of contraception rather than of morals or laws. The state has a responsibility to ensure that abortion is a last resort. Barriers to both the knowledge and practice of effective birth control in Australia have meant that 50 per cent of pregnancies have been unplanned, and some of these unwanted. Religious proscription is not the greatest barrier to effective contraception. Anachronistic laws that still restrict the advertising of contraceptives and limit sterilisation procedures play a greater part. Sluggish action by governments has meant that only recently has the sales tax been removed from contraceptives and the 'pill' been made available as an item under the pharmaceutical benefits scheme. Educational sex programs involving contraceptive techniques are greatly lacking in school curricula. There is a severe shortage of family planning clinics in local communities. However, despite the widespread availability of contraceptives the state is unable to police their use, or guarantee their complete effectiveness. Not every woman or man can use contraceptives due to aesthetic, religious or physical reasons. Unwanted pregnancies will still occur. Full government responsibility suggests that special abortion clinics in teaching hospitals are needed to provide education of doctors and students in how best to counsel women concerning unwanted pregnancies, to set standards for the Australian Capital Territory and to carry out research, particularly in the follow up of patients.

At the centre of the abortion debate is the controversial 'right to life' of the foetus. But to confine one's thinking to this single absolutist principle is to ignore the many other rights inherent in the situation, such as the rights to health and welfare of the mother and her existing family, the rights to choose whether to bear children or not and the right of the child to be wanted. But the principle of 'right to life' must be established and not shirked in this debate. Those who accept without question the 'right to life' of the foetus must examine their consciences and answer for the desperate misery and hardship imposed upon pregnant women, the existence of illicit abortionists, the hypocrisy of a law that is different for rich and poor, and the confusion that faces doctors as to their medical rights.

Those who oppose law reform must prove their charge that liberalisation undermines public and private morality and is the first step that leads to a total disrespect for life. And those who deny the rights of life to the foetus at any stage of its development without thorough examination and conviction do so at the peril of encouraging disrespect for life, legalised by the state, which is the most fundamental of al) rights and which is basic to all other rights. Translating principles into law against a background of public opinion is a most complex and responsible task. The principle of the right to life and its relation to other rights is the reason why there is so much emotion and controversy in the abortion debate.

Life is a continuum that began well before man's consciousness and for the individual began at conception. It finishes for the individual at death. There is however a sea of controversy amongst theologians, the medical fraternity and the public as to when, during that continuum, the foetus should be granted rights. When should the law grant the right to life to the foetus? The validity of rights is only as strong as the powers that protect them. Rights can only be realised when they are exercised, and the state, once it grants rights, is obliged to use its full power to enforce and protect those rights regardless of sex, colour, race or creed, or even financial standing.

To many the view that abortion if the death of a human being is untenable for many reasons. The law does not regard the foetus as a human being and bestow it with full rights of citizenship, otherwise the state would not condone the 'murders' that pass as abortions. The state cannot bestow the right to life unless it is prepared to enforce that right. It cannot grant rights cheaply. When prosecutions do not take place, when juries do not convict, and society does not condemn the taking of the life of the foetus then the state cannot guarantee the right to life to the foetus. Defence of the right of life of the foetus must rest on the conscience of every individual and I would join those who place that right high in their conscience.

The church operates on the theological assumption that the human entity becomes a person at the moment of conception yet does not afford it funeral rites or baptism. The pastoral view is that the right to life exists at conception. Strongly religious or moral people do not need the force of the law to uphold their convictions, and in a pluralist society they do not have the right to impose their religion or morals on the rest of society by way of the law. At the same time the church believes in religious and moral freedom for others including even atheists. Followers of any church have not only the right but also an obligation to their beliefs to persuade others by reason and faith to share their view, but they cannot do this through the law.

The position of the law was well expressed by Ronald Dworkin, Professor of Jurisprudence at Oxford University, when he said:

The criminal law is a clumsy device of social regulation. It works passably well, and better than any alternative when the acts punished are universally condemned and plainly destructive. When the immorality is controversial however and the harm speculative, the punishment will depend upon the chance who tries and judges the accused, and chance will sometimes assign that role to self-styled moral crusaders.

When that happens then the criminal law will divide rather than unite the nation and do more harm to the social fabric than the evil it tries to prevent.

The legal process is a most inadequate tool to decide the legitimacy of abortions. It should be a moral-medical one, that is, a matter between a woman and her doctor. Then each citizen is able to act according to his or her conscience. Faced with a similar question of rights, including the right to life of the foetus, the United States Supreme Court laid down rules for all abortion laws. Abortion on request during the first 12 weeks of pregnancy, when carried out by a qualified medical practitioner, was to be legal. For the next 12 weeks or so conditions may be imposed to protect the woman, and after this abortion may be forbidden except to save the life of the woman. Our Bill is guided by these rules and the common law as they relate to the protection of the life of the woman and to the developing rights of the foetus as the gestion progresses.

But what of public morality? A reverence of foetal life does not guarantee a reverence for all life. Hitler made abortion a capital offence yet he authorised the killing of 6 million Jews. Stalin repealed the abortion laws just prior to the purges he led. Convicted murderers are still hanged and wars still fought by governments who proscribe abortion. When there has been no comparable organised campaign against the atrocities committed in Vietnam, against capital punishment, against nuclear testing in the Pacific or against an infant mortality rate amongst Aborigines that is 17 times higher than for the general community, one can be excused for thinking that among those who now campaign so strongly against abortion law reform there are many who have a great feeling for foetal life but once it stops being a foetus their respect for human life stops well short of that concern. One would also be excused from thinking that extremists of both sides of the argument sadly lack compassion for all those involved in the matter of abortion.

The State that can confer the right to life and honour that right without question, such as to the viable foetus, will also honour that right at all times. The obligation is such that the principle be enshrined in law and capital punishment repealed and euthanasia continued to be made illegal. For, once the right to life has been conferred, life should not be taken unless by consent or when it can be proven beyond doubt that the taking of life was essential to protect the equal rights of another. The principle of right to life should not be granted cheaply and unless the right life can be protected, its consistent application is the greatest legal protection against a government or a society developing a disrespect for all life. There is no credibility in the moral domino theory.

I believe the Bill shows more understanding of the totality of the issue of abortion and its legality than any other comparable Bill. It provides a unique advice clause that ensures that every woman who requests an abortion is made fully aware of all the private and government family support programs available to her during and after her pregnancy, and of adoption facilities. This procedure will allow a woman a meaningful choice and help to ensure that abortion is truly a last resort. It will place the responsibility on the government to provide all clinical, medical and social and financial assistance possible to the woman so that she may bear her child whether that pregnancy was planned or not. No government should command a social or economic system that does nothing to prevent the need for abortions.

The Bill ls an attempt to rationalise the law on abortion, eliminate the back-yard abortionist, reduce the number of abortions and recognise that an abortion is, first and foremost, a matter between a woman and her doctor. Perhaps John Stuart Mill best put the essence of our proposal when he said:

Anyone who causes a life to come into being without the means to guarantee it normal expectations of happiness commits an offence against that being.

This Bill aims to ensure that happiness.







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