The abortion debate: what a fizzer!

It is unclear exactly what is driving the current controversy over abortion in Australia. The major proponents of the controversy, almost to a man, claim that their object is not to make abortion illegal. For example, Senator Ron Boswell says that he simply wants a debate, a debate based on knowledge of the numbers of abortions performed each year in Australia.

Many MPs and others have claimed that this information on abortion numbers is not available to them. Senator Boswell believes that “there is no information out there”, and has placed 16 questions on notice to the Minister for Health in order to get the information he thinks has been hidden from him. Labor MP John Murphy says that he has been unsuccessful in “pursuing former health ministers since April 2000, to get to the truth about the number of abortions in Australia each year”, and has foreshadowed a private member’s bill requiring more information on abortion figures.

The Parliamentary Library has recently put out an excellent research brief detailing what is out there in regard to abortion numbers, and the reasons for difficulties in estimating numbers. However, it seems to me that the project of men like Senator Boswell and Mr Murphy goes beyond wanting to know numbers. I do not think that their object is to change the law in order to restrict access to abortion - an object that would at any rate be difficult for the federal parliament, as abortion is almost entirely a state matter. It would seem that their immediate object is to limit Medicare funding of abortions.

But we’ve been here before. In March 1979, MP Stephen Lusher moved a motion in the House of Representatives to restrict the payment of medical benefits for termination of pregnancy under Item 6469 by Medibank (as it was then), “unless the termination was performed to protect the life of the mother from a physical pathological condition and that the life could be protected in no other way”. Lusher’s motion was defeated by a margin of 65 to 47.

Medibank benefits were made payable for termination of pregnancy in 1974, but discontent among parliamentarians had led to a review by Health Minister Hunt in 1977. Mr Lusher in his turn claimed to be motivated by concern at the rising number of abortions, and put forward his motion in the spirit of “a rational and unemotional” debate.

However, debate over Lusher’s motion in the House went beyond the payment of Medibank benefits to focus on the legal status of abortion. In speaking to his motion, Lusher criticised the two leading cases on abortion law, the cases of Davidson and Wald. In R v Davidson (1969), a Victorian doctor faced criminal charges for performing abortion. Judge Menhennitt’s statement of law in that case explained that the lawfulness of the doctor’s actions depended on whether he honestly believed on reasonable grounds that his act was necessary to preserve the woman from “a serious danger” to her life, or physical or mental health.

In 1971, Judge Levine in the NSW District Court followed the precedent of Davidson in R v Wald, a case again involving the criminal prosecution of doctors for performing abortions. Judge Levine explained that “serious danger” could encompass economic and social grounds. Lusher argued that the judicial reasoning in these two cases was faulty, and he flourished a legal opinion that neither decision would be confirmed by a full or superior court if appealed.

One of Lusher’s major opponents in the House was Billy McMahon, who throughout the 1970s had supported abortion law reform that was, in his words, “sympathetic to the cause of women”. I suppose few people would stereotype Billy McMahon as a flaming radical or a dogmatic feminist. But McMahon firmly castigated men in the House for their “savage judgements” on women, which he found “strange and unacceptable”.

On the question of the legality of abortion, McMahon was even more blunt in response to Lusher, saying, “It has been stated rather foolishly, by a member not very closely attuned to the law - that there has been no appeals. But there could have been an appeal. There was no restriction in either State, Liberal Country Party or Labor government as to appeal.”

Similar arguments to those of Lusher on abortion’s legality are still heard from voices on both sides of the abortion debate, and McMahon’s cautions bear reiteration. Notably, even some supporters of abortion maintain that it is “technically illegal”, a meaningless category in law.

At any rate, Lusher lost the day, and an alternative motion was passed by the House to the effect that the Commonwealth would continue to pay medical benefits for terminations where done “in accordance with the law of a State or Territory”.

Anyone who now thinks that a similar motion to restrict Medicare benefits for abortion would pass through the House of Representatives simply doesn’t know much about history. When Lusher put forward his motion in 1979, all 124 members of the House of Representatives were men. Of those men, only four remain in the current parliament: John Howard, Philip Ruddock, Alan Cadman and David Jull, all of whom voted with Lusher. Philip Ruddock’s opposition to late-term abortion runs so deep that in regard to his deportation of an 8 ½ months pregnant asylum seeker in 1997, he remarked that it had not been established whether her abortion on return to China was forcible or not. Alan Cadman’s most recent contribution to informed debate about abortion was to wonder why older women were having abortions; he added, “I can’t believe that women in this day and age are so dumb to get pregnant willy-nilly”.

But this group of men with their “savage judgements” weren’t able to muster the numbers in 1979 in an all-male House. And they don’t have the numbers now. This debate is a fizzer. What is more, its proponents must know that it is, unless they are as ignorant of arithmetic as they are heedless of the principles of bodily integrity and autonomy that lie at the heart of the rule of law. So just what is their object in this debate?