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Time to abort the law

By James McConvill - posted Friday, 24 February 2006


The Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for the approval of RU486) Bill 2005, which proposed to remove the Federal Health Minister’s veto power over the availability of the abortion drug RU486 was recently passed by the Senate, with a vote of 45 to 28 in support of the Bill. The Bill proceeded to the House of Representative for a vote where it was passed with 95 for and 50 against.

Prime Minister John Howard has said that the vote on the Bill should be removed from the broader issue of whether abortion is right or wrong, but most commentators - and indeed Senators who considered the Bill, including Barnaby Joyce, acknowledge that it is hard to divorce the two.

The Bill provides us with an opportunity to lay our cards firmly on the table as to how, as a community, we should deal with the question of abortion. There are of course two contrasting views, with supporters on either side resolute.

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This is all fine, and will continue to be the case. Debate is healthy, and you cannot change human nature.

But much more precarious is the role of the law in all this. Should the law restrict the availability of the drug RU486? Should we impose a penalty on individuals involved in an abortion in certain circumstances, or in all circumstances?

No doubt readers will hold some view on these questions. This is because each of us is directed by a moral compass, and accordingly we behave in a certain way. But this is morality, not law.

While it is impossible to separate the availability of RU486 from the broader issue of whether abortion is right or wrong, it is absolutely essential that we separate morality and law. The two are not the same, and should not be treated as such.

While it is often the case that what society considers to be morally repugnant becomes legally impermissible, and laws also help in shaping and refining morals, we should get away once and for all from the practice of filling our statute laws with fluffy moral principles.

It is all very well for cushy lobby groups, academics and parliamentarians squealing for this or that moral principle to be enshrined in law, but responding to the crow calls comes at a cost. Law is expensive. There is a cost in drafting the laws, a cost in administering the laws, and a cost in enforcing the laws.

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On the other hand, morality costs little. Rather than requiring sandstone buildings, marble staircases and fat salaries which is the foundation for a system of regulation by formal laws, with morality we can simply sit little Mary on our lap and explain to her what is right and wrong.

A properly functioning society does not depend upon formal legal rules. Rather than legislate in an attempt to solve every problem, we should devote more time to informing members of the community, particularly young people, about moral issues and basic principles of morality that have developed over time. This should start in the home, and extend to schools, universities, and workplaces. Of course, different people will put a different spin on what is right and wrong, but that occurs now anyway.

If the ivory tower of formal legal regulation that sits at the centre of our modern society is influenced by moral principles which percolate in our homes and schools, why not just go straight to the source and save the train fare?

Regulation is a broad concept which, as a host of literature explains, extends beyond formal rules to include a range of mechanisms which work to control the way in which we behave as individuals. Formal legal rules should be reserved for the most extreme circumstances when, for some reason, it is difficult or impossible to act according to basic moral principles.

So how does this discussion apply to RU486 specifically, and abortion generally? Well, if we go back to little Mary for a moment, our task is to explain to Mary what RU486 is, the health risks associated with taking the drug, and the moral issues associated with aborting the fetus by taking the drug. This does not require a slick advertising campaign, but rather caring people with the information.

We then let Mary decide, based on the information she has received, and her own moral values which she has acquired simply by getting up each day and living her life. If Mary meets a nice (or not so nice) guy, gets pregnant and then wants the drug, no problem - she can have it.

Now to abortion more generally. If the decision is to be made based on the moral values of the person deciding whether to have the abortion or not, again things become simple. The person should do what is in their heart. This will have something to do with the information society has provided, as well as the person’s own values.

But isn’t there an issue as to when human life begins? Surely the woman cannot have an abortion at any time during the pregnancy? Doesn’t abortion become murder at some stage?

All interesting questions, but again they are based on an assumption that the law inevitably has some role to play. It shouldn’t. Once educating individuals about moral issues and the basic principles of morality, as a society we should let go and whatever happens, happens. Regulation comes from the education, not from the legislation.

In most cases, the individual will make the choice which is right for them, and they will come away from the experience positive and enlightened. Yes, in rare cases, some individuals will make the wrong choice, such as terminating too late or based on inadequate information, but - to put it frankly - that is their problem. It is only in the most extreme circumstances, such as when the woman is mentally impaired, that there should be some role for external intervention.

People need to lie in the bed they have made for themselves, rather than have the community fork out to fluff their pillows, warm their blankets, and have milk and cookies placed on the bedside table.

Bad decisions are made every day with the myriad of laws and regulations that Parliament has churned out over the last century. Legislating to solve every problem and address every concern would be an inefficient and unsuccessful endeavour. Human nature is not a distortion which we can rid from the market.

Human beings will never be perfect. Human nature can, however, be refined and improved through the development and reinforcement of sound principles of morality. Sound principles of morality are built and best maintained at the grass roots.

Whether we are talking about RU486, abortion, or other things which are the subject of formal regulation, it is time to trust individuals to make the right choices. Controlling individuals through formal rules will not get us there.

Trust develops from just letting people make the decisions. As a matter of human nature, individuals who are trusted want to be trustworthy, and this leads to a society which really functions properly. What becomes of formal laws? Aborted.

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About the Author

James McConvill is a Melbourne lawyer. The opinions expressed are his personal views only, and were written in the
spirit of academic freedom when James was employed as a university lecturer.

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Creative Commons LicenseThis work is licensed under a Creative Commons License.

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