Australia's abortion laws are conflicting, hypocritical, and poorly enforced

A 2007 West Midlands study of termination of pregnancy for foetal anomaly (published in the British Journal of Obstetrics and Gynaecology) concluded that about 3.5% of abortions after 16 weeks' gestation resulted in a born-alive infant. At 23 weeks' gestation, the born-alive number reached 9.7%. The born alive rate fell over the period of the study from 4.0% in 1995 to 1.7% in 2004 due to the impact of new guidelines that feticide should be offered to ensure that live birth does not occur following termination after 22 weeks.

In the US, a Philadelphia doctor, Dr Kermit Gosnell, accused of performing illegal late-term abortions was found guilty of first-degree murder following the deaths of three babies born alive. Former clinic employees testified that Gosnell routinely performed illegal abortions past Pennsylvania's 24-week limit, that he delivered babies who were still moving, whimpering or breathing, and that he and his assistants dispatched the newborns by "snipping" their spines.

There have been no prosecutions of this nature in Australia despite anecdotal information that babies born alive after abortion have been left to die (even with legal and professional obligations in at least some states/territories that the doctor render assistance).

Queensland has foetal protection laws, as do around 40 states in the US. Section 313 of the Queensland Criminal Code states that "Any person who, when a female is about to be delivered of a child, prevents the child from being born alive by any act or omission .... is guilty of a crime, and is liable to imprisonment for life. Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to....the child before its birth, commits a crime. Maximum penalty imprisonment for life".

Foetal protection laws had been proposed for NSW ("Zoe's Law"), and also for WA, SA, and the NT. One of the key features of moves to introduce such protections (which have tended to stall in parliament) has been a lukewarm response from women's groups and the Left generally. Such groups would normally be expected to be strident supporters of laws that increase penalties for crimes involving women or child victims. The obvious reason for lack of support is that it would look hypocritical to criminalise the killing a foetus by a third party (e.g. by assault) while at the same time supporting a mother's legal right to terminate that same foetus using medical abortion.

Another issue for jurisdictions such as NSW, Queensland, South Australia, Western Australia and the NT (and also the UK), where abortion is still a crime except for certain circumstances, is the risk of paying only lip service to the law's conditional approval of abortion. This particularly arises where the law requires one or more doctors to certify that grounds justifying an abortion exist.

Prosecution of doctors for performing "unjustified" abortions are rare in Australia. (It is claimed that over the past 20 years there have been only two successful such convictions.) In the UK surprise inspections of more than 250 abortion clinics found evidence of blank forms being pre-signed (in anticipation of patients seeking a termination), suggesting that (for many clinics) certification by doctors is only a formality.

Many jurisdictions permit an (often late) abortion in cases when the unborn child is likely to be born with a handicap, raising difficult practical and ethical issues. Justifying abortion in such cases firstly implies that the lives of disabled people are less worthwhile than the lives of "normal" people. A second (practical issue) also relates to how serious an expected handicap needs to be to justify a lawful termination. Abortion seems less problematic in instances where the foetus is considered unlikely to be able to survive long after birth.

The presence of Down syndrome is a commonly accepted justification for a termination. This is despite studies indicating that the vast majority of parents with such children report that their outlook on life was more positive because of their child, and 99 percent of those with Down syndrome feeling happy with their lives. In the UK, a parliamentary committee has suggested tightening the rules because parents are being "steered" towards aborting babies with disabilities without proper information on the alternatives. In extreme cases foetuses have been aborted purely because screening had detected a cleft lip or club foot, conditions which can be dealt with surgically after birth.

Belief in the "right to choose" is logically incompatible with expressed opposition by some women's advocates to selective abortion of female foetuses. As a matter of logic, if there is no moral objection to abortion per se, and if a mother has an absolute right to choose, it is hard to raise any moral objection to selective abortion of females (though one might raise a public policy argument).

So where does all this lead in the abortion law debate?

Moral argument seems incapable of resolving the seemingly intractable abortion law debate. Instead, conscience votes by politicians, which ultimately should reflect majority community opinion, ought to prevail and give us laws supported by the majority or citizens. For this to happen politicians must be prepared to grasp the abortion law "nettle". The problem is, however, that many politicians seem to prefer to avoid the topic entirely, if possible.

It seems a matter of reality that abortion in the first trimester of pregnancy has majority support and (whatever the merit of "right to life" arguments) is almost certainly here to stay.

Late-term abortions, however, seem little removed from infanticide in many cases, and raise clear moral concerns for the majority of citizens. Is it is ethical to deliberately end such pregnancies if a live birth is an alternative at that point in gestation? With late term abortions, it is now not uncommon for the foetus to be given a lethal dose of Digoxin or Potassium Chloride early in the procedure. While this will prevent the embarrassment of a live birth following an abortion (a satisfactory outcome perhaps for the doctor and the parents of an unwanted child?), many will not consider this an acceptable moral outcome.

In my view, the general public and legislators need to reclaim the abortion debate from activists, and politicians need to have the backbone to open their eyes and comprehensively sort-out this issue. Politicians (conveniently) seem to ignore issues related to late-term abortions and to the integrity (or lack thereof) of doctor certification of the need for an abortion. It also seems cowardly for legislators to allow core law on abortion to be determined (by default) through common law judgements, such as Levine, or to allow enacted legislation to go unenforced.