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Thursday, 9 February 2006
Page: 21

Senator BRANDIS (10:04 AM) —I have decided to vote against the Therapeutic Goods Amendment (Repeal of Ministerial responsibility for approval of RU486) Bill 2005. I have not been influenced by the vigorous lobbying which has taken place on both sides of the issue. I have arrived at my decision purely on the basis of my own careful thought and reflection, and I want to take this opportunity to place on the record the considerations which have led me to this position.

Let me begin by dealing with three fallacies which have bedevilled this debate. The first is the suggestion that, because this issue directly affects women, it is an issue on which the point of view of women carries greater weight than the point of view of men. But women are sharply divided on this issue, just as men are. There is no ‘female’ point of view about abortion. More importantly, the moment the question of abortion is raised, it necessarily entails the question of the status of the embryo—I avoid the use of the term ‘unborn child’, which is emotive and tendentious.

There are those who, like me, believe that human life begins at conception. There are others who believe that human life begins at some later time during pregnancy, whether at an arbitrarily defined period of weeks, at the time when—to use the old language of the law—the foetus ‘quickens’, at the time of viability or at some other stage of the pregnancy. And there are those who believe that human life does not begin until actual birth. I do not wish to enter into the argument about which of those propositions is correct, beyond stating my own personal belief. Nor is there any point in doing so, because this is, for most people, a question so fundamental that seldom is it likely that anyone will be swayed by argument from the belief to which they adhere.

I do not for a moment doubt the good faith and reasonableness with which each of the different beliefs about when life begins is held. On this, above all things, I respect the right of others to have a view which is not mine, and I expect them to respect my right to have a view which is not theirs. My point is that, simply because such a multiplicity of views does exist, opinions about the circumstances in which abortion is morally defensible necessarily entail a view about the point at which human life begins. And that is not a women’s issue. It has nothing to do with gender. It is a philosophical issue for women and men alike.

The second fallacy which has bedevilled the debate is the mischaracterisation by some of the legal status of abortion in this country. I have heard several colleagues—some of them, I regret to say, lawyers—assert that abortion is legal in Australia. That statement is careless and misleading. Every Australian state and territory other than the Australian Capital Territory places legal prohibitions of some kind upon the termination of pregnancy and makes it a criminal offence to perform a termination or to be a party to a termination unless the termination takes place in defined circumstances of excusal. For instance, in Queensland the principal provision is section 224 of the Criminal Code, which provides:

Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.

That is the prima facie position. However the operation of section 224 is qualified by section 282, which creates a defence in the following terms:

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient’s benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.

Both the offence-creating provision and the defence in my state are substantially similar to the law in the other Australian states, notwithstanding that some of them are common-law jurisdictions and in others the law is codified.

The circumstances of excusal were interpreted in the landmark decision of the Supreme Court of Victoria in the Davidson case in 1969, the so-called Menhennit ruling, to mean that a termination is permissible whenever it is necessary to preserve the mother from serious danger to her life or physical or mental health and the circumstances are not out of proportion to the danger to be averted. The language of the Menhennit ruling, which has been followed in other Australian jurisdictions, has itself been liberally interpreted. In Queensland, the law was settled by the decision in R v Bayliss and Cullen in 1988, where Judge McGuire of the Queensland District Court adopted a very liberal interpretation of the Menhennit ruling, in particular of the circumstances in which the continuation of a pregnancy might be dangerous to the mental health of the mother. Since that time, there has not been a prosecution brought in Queensland under section 224 of the Criminal Code. Bayliss was, to the best of my knowledge, the last occasion upon which a prosecution for performing an abortion was brought in Australia.

Those who claim that abortion is legal in Australia are trying, I suppose, to say that, given the liberality of judicial interpretations, for all practical purposes terminations of pregnancy are lawful because the grounds of excusal are so broad and the criminal provisions are no longer enforced. But, as any competent lawyer knows, there is a great deal of difference between saying that conduct is lawful and saying that conduct is unlawful unless justified or excused by law—however liberally the circumstances of excusal may be interpreted.

The third fallacy which besets this debate is the offensive suggestion that those who do not wish to see the circumstances in which abortion is available further extended are seeking to impose their religious prejudices on others. I am very suspicious of politicians who wear their religion on their sleeves, who practise the politics of ostentatious piety. When it comes to liberal democracy, I am a resolute secularist. Liberal democracies are not religious constructs; it is of their essence that they are equally hospitable to people of all religious faiths and of none.

Liberalism and democracy are not religious doctrines, and my own church, the Catholic Church, is neither democratic nor liberal. It is no business of politicians who are adherents of a particular religious faith to impose the tenets of that faith on other citizens who do not share them. But, whether you are the most conservative opponent of abortion or the most vigorous advocate of its ready availability—wherever you stand on the spectrum in this debate—you cannot have a view about the morality of abortion in isolation from a view about when human life begins. It is just not logically possible. A view about when life begins is not necessarily a religious view—although it may be that, for many people, it is informed by the teachings of their church. There are many atheists who believe that life begins at conception, and there are many religious people who, in the exercise of their informed conscience, do not accept their churches’ teachings about the matter. The question of when human life begins is, to me, a philosophical question, not a theological one.

If a person holds the view, as I do, that human life begins at conception, that view may or may not be informed by religious beliefs or teachings. But even if that view is informed by religious beliefs, that does not mean that to act upon that view is to impose one’s religious values on others. It merely means that, from a belief about when life begins, certain conclusions about the consequences of terminating a pregnancy necessarily follow. Are we to say that people are entitled to hold a belief about when life begins if that belief is not based upon religious values but not entitled to hold such a belief if it is? Those who oppose abortion are no more seeking to impose their values on others than are those who support it.

Let me turn to the substance of the bill. It is very simple. If enacted, it would make the abortifacient drug RU486 subject to the ordinary approval processes of the Therapeutic Goods Administration under section 25 of the Therapeutic Goods Act whereby, before any pharmaceutical drug or medicine can be marketed in Australia, it must first be evaluated and approved by the TGA against the criteria of quality, safety and efficacy. The drug would cease to be within the class of ‘restricted goods’, and thus subject to the special regime provided for by section 23AA under which certain drugs may not be evaluated by the TGA, registered or listed for sale without the approval of the minister for health.

The TGA’s processes are technical processes. What the TGA does in evaluating new drugs is an exercise in science. If RU486 were nothing other than a medicine, if the purpose for which it is prescribed were nothing but a medical procedure, if this were only a medical question, there could be no rational reason for excluding it from the ordinary approval processes of the TGA.

I cannot see how any consideration of the availability of abortion can ever be purely a medical question. Since, for the reasons I have explained, the consideration of abortion necessarily entails consideration of the status of the foetus and therefore inevitably opens the question of when a human life begins, it cannot fail to be an ethical question, a philosophical question, as well. And, while no-one should doubt the competency of the TGA to make scientific determinations based upon technical skill and knowledge, equally no-one would be so foolish as to suggest—and to the best of my knowledge no-one has suggested—that the TGA is competent to make determinations on the ethical and philosophical issues which the abortion debate inevitably raises. The RU486 debate raises both types of issues: philosophical, not just scientific; ethical, not just technical. Because the TGA can only deal with the latter, its processes can never be sufficient to determine the appropriateness of this drug entering the Australian market.

 I have not, in the course of this contribution, touched on the question of the medical efficacy of RU486. I do not have the professional expertise to assess the medical literature and I question whether anyone other than a professionally qualified doctor or pharmacologist has the capacity to do so. I note that the only senator who has spoken in this long debate who may be considered to have appropriate professional expertise, Senator Eggleston, has been an opponent of the bill. My own inexpert impression of the medical literature is that the overwhelming weight of it supports the view that RU486 is a safe drug, within the acceptable parameters of medical risk, but that a significant minority of medical opinion challenges that view. Having said that, it is clear that much of the medical literature supporting the drug is propounded by the pharmaceutical companies, which might be thought to have a vested interest in its wider use. Be that as it may, once it is accepted that this is more than merely a medical question, the medical literature cannot determine the issue.

I have no doubt at all that, were this drug generally available for prescription by GPs, its use would rapidly become extensive, and the circumstances and occasions upon which abortions occur in this country would significantly increase. It flies in the face of commonsense and the ordinary experience of mankind to imagine that, by providing an apparently easier, chemically induced method of termination, that procedure would not be readily recommended by doctors and resorted to by their patients. At the same time, the degree of medical superintendence of the termination would be lessened.

The desirability of such a development, having regard to the moral and ethical issues to which I have referred, cannot be left merely to a technical approval process, insusceptible to public scrutiny and accountability, which may not have regard to those issues. For that reason, I believe that responsibility for the authorisation of this drug must be taken by a decision maker who is publicly accountable for his decision. It both raises the profound philosophical and ethical issues of which I have spoken and demands a judgment on a matter of social policy of the first magnitude: how readily available do we wish abortion to be in this country?

Because this is inescapably an ethical and a policy question as well as a medical question, I maintain that this is a matter for politicians, not technicians, discharging their high public duty to make serious and grave decisions for which they must take responsibility and for which they are publicly answerable.