Who’s confused?

In her article in On Line Opinion “High 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.

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.

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).