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A Bill of Rights and implications for women's reproductive freedoms.

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A Bill of Rights and implications for women’s reproductive


Author: Cait Calcutt of the Australian Reproductive Health

Alliance & Children by Choice

Presented to the Women’s Constitutional Convention 11-13 June

2002 Canberra

In this short presentation I will provide a quick overview of the

implications that a Bill of Rights has for women’s reproductive

freedoms, in particular access to legal abortion. I won’t be arguing

about the merits or otherwise of entrenching a Constitutional Bill of

Rights in Australia or an alternative legislative model. Rather, I will

discuss and speculate on the how a Bill of Rights has been, and

could be, used for and against women’s right to access abortion



Issues around reproduction, fertility control and reproductive rights

continue to be key aspects influencing women’s participation in civil

society. Being supported as parents in the workplace and/or in the

private arena, as well as the ability to choose when, or even if, to

parent - have been issues of concern for women since the first wave

of feminism over a century ago.

In Australia, women’s legal access to abortion is generally the

responsibility of State governments. The body of law around abortion

in Australia is a mixture of legislation introduced over the last thirty

years and liberal judicial interpretation of nineteenth century law.

None of this law refers to a basic right of women to make decisions

around reproduction.

The Australian High Court is yet to have the opportunity to make a

direct judgement around the issue of abortion. In 1996, the CES vs

Superclinics case came before the Court. This case, which had

begun in the civil courts of NSW, revolved around a woman who was

denied the opportunity to access abortion, due to the failure of her

medical practitioner to diagnose an unplanned pregnancy. A decision

by the High Court on this matter would have had significant influence

on the future of case law and legislation around abortion in Australia,

as a precedent by the High Court would have far greater power than

the individual jurisprudence between the states. Fortunately, or

unfortunately depending on your point of view, the CES case was

settled out of court, so no judgement could be made.


The position of the High Court of Australia on abortion will be crucial

for women’s reproductive freedoms if there is to be a Bill of Rights in

Australia. Some of the expansions of women’s legal access to

abortion around the world have occurred due to liberal judicial

interpretations of the provisions of various nations’ Bill of Rights. In

particular, this has occurred in the USA and Canada over the last 30


As many of you are aware, the legal basis of abortion in the US is the

landmark Roe vs Wade decision. IN this case the US Supreme Court

determined that restricting legal abortion interfered with a woman’s

constitutional right to make decisions about her private life. The court

found that the State did not have a compelling interest in the

pregnancy until the third trimester when the rights of the foetus

became equal to those of the pregnant woman. The basis of this

decision was an interpretation of a section of the US Bill of Rights,

which guarantees the liberty of an individual and security of person.

In Canada, a similar clause exists in Section 7 of that nation’s Charter

of Rights and Freedoms, which was entrenched in 1982. In 1988 the

Canadian Supreme Court considered a criminal case against Dr

Morgentaler - a doctor in private practice who was providing

terminations outside the boundaries of the law, which required all

abortions to be approved by a hospital “Therapeutic Abortion

Committee”. Morgentaler regarded this requirement as offensive as it

placed both practical and symbolic barriers in the way of women’s

access to safe abortion in Canada. In a 5-2 decision, the Supreme


Court struck down Canada’s restrictive abortion law as

unconstitutional, for as in the US, it violated the women’s right to

liberty and security of person. There are now no criminal sanctions or

legislation on abortion in Federal Canadian law.

This case also provides us with an insight on the implications of an

entrenched bill of rights versus a legislative model.

The Canadian Supreme Court had considered a similar prosecution

against Dr Morgentaler in 1975. At the time, the Canadian Bill of

Rights was not entrenched and was regarded as “quasi-constitutional”. The Supreme Court argued in the judgement of that

case that it was for the parliament to deal with parliamentary

legislation and not for the court to interfere. So despite the fact that in

1975, there was a Bill of Rights that contained similar provisions

around liberty and security of person, the position of the Supreme

Court in relation to both the upholding of the Bill of Rights and the role

of the Bill of Rights in the constitutional and legislative system was

limited. Seven years later the new Canadian Charter of Rights and

Freedoms was entrenched and the previous requirement for judicial

restraint when reviewing parliamentary laws was removed.

Many pro-choice advocates have looked towards the Bill of Rights in

the 1996 constitution of South Africa as the model for ensuring

women’s legal right to fertility control and abortion. Section 12

provides for the right to bodily and psychological integrity, which

includes the right to make decisions concerning reproduction. The


South African constitution was developed at time when the struggle

for equality for all Africans was at its height. There was strong and

unified women’s movement that pushed to ensure that reproductive

rights were guaranteed in the new South Africa. (This also included

the passing of liberal abortion laws.) However some women’s

advocates have now reflected that the unique context of the

development of the South Africa’s constitution was such that if the

debate around the inclusion of an explicit section on reproductive

rights occurred a year or two later when the unity of the struggle

movement had begun to dissipate, this section may not have been


If Australia was to develop a Constitutional Bill of Rights it is likely

that it will become a lightening rod in the debate about abortion. It can

be expected that any Bill of Rights will contain the basic provisions of

liberty and security of person, as well as the right to life.

Anti-choice forces would seek extend the provision of the right to life

to explicitly define human life as beginning from conception. Given

that this view is held by ascendant sections of the Coalition parties

and the ALP, anti-choice groups would have powerful allies in any

debate around any clauses that may have implications for women’s

reproductive freedoms.

Following the successful placement of a Bill of Rights, anti-choice

groups, given their current attachment to using the judicial process to

restrict access to abortion services, will likely seek to push and


identify relevant court action in order to test the Bill of Rights

provisions in relation to pregnancy termination.

It could also be expected that a pro-choice group would be in the

courts attempting to use the Bill of Rights to obtain a ruling from the

High Court, which would expand a woman’s legal right to abortion in


It would be hoped that our High Court judges would approach any

judicial decisions on this issue with same clarity and understanding of

women’s human rights as that of Madam Justice Wilson of the

Canadian Supreme Court in the Morgantaler case.

In her judgment she wrote:

“This decision is one that will have profound psychological, economic

and social consequences for the pregnant woman. The

circumstances giving rise to it can be complex and varied and there

may be, and usually are, powerful considerations militating in different

directions. It is a decision that deeply reflects the way the woman

thinks about herself and her relationship to others and to society at

large. It is not just a medical decision; it is a profound social and

ethical one as well. Her response to it will be the response of the

whole person.

It is probably impossible to a man to respond, even imaginatively, to

such a dilemma not just because it is outside the realm of his

personal experience (although this is, of course, the case) but

because he can relate to it only by objectifying it, thereby eliminating


the subjective elements of the female psyche which are at the heart

of the dilemma.

... The more recent struggle for women’s rights has been a struggle to

eliminate discrimination, to achieve a place for women in a man’s

world, to develop a set of legislative reforms in order to place women

in the same position as men. It has not been a struggle to define the

rights of women in relation to their special place in the societal

structure and in relation to the biological distinction between the two

sexes. Thus, women’s needs and aspirations are only now being

translated into protected rights. The right to reproduce or not

reproduce, which is an issue in this case, is one such right and is

properly perceived as an integral part of a modern women’s struggle

to assert her dignity and worth as a human being.”1


1 McLellan, A. Anne, Abortion Law in Canada in Abortion, Medicine, and the Law, Butler, J. Douglas & Walbert, David F. (eds) 4th ed 1992, p351