Who’s confused?

Davidson was subsequently found not guilty on all counts.

In his statement of law, Judge Menhennitt drew on the 1939 English case of R v Bourne, which concerned the prosecution of a surgeon for performing an abortion on a young woman who had been the target of a ferocious rape. In that case, Justice Macnaghten had given what he considered a “reasonable” interpretation of the meaning of preserving the life of the mother in these terms: if “the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother” (R v Bourne [1939] 1 KB 687, at 694).

The phrase “preserving the life of the mother” has, on the basis of this precedent, been interpreted in a broad sense. For example, Justice Macnaghten noted that it was not always easy, or even necessary, to draw a line between health and life as being endangered, and he carefully noted that it was not necessary to wait until the woman’s death was imminent before action became lawful on the stated criteria.

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 stressed that the reasonableness of a doctor’s belief as to necessity is a matter for a jury to decide, and phrased the test of lawfulness in these terms:

... it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health (R v Wald (1971) 3 NSWDCR 25, at 29).

Judge Levine added that the reasonable expectation of serious danger to mental health if the pregnancy continued was also relevant. The distinctive contribution of Judge Levine to the clarification of the legal position on abortion is generally held to be his addition of “economic” and “social” considerations into the formula.

In the absence of any more precise statutory directions, the Davidson and Wald formulas are generally taken to form the basis of the understanding of lawfulness in regard to abortion. There is some debate about whether Davidson and Wald clarify the constituent parts of the offence, or outline a defence to the charge. But nobody has ever suggested that the common law “forgives” offences in this area (or in any other). Indeed, it would be quite improper for the common law to elicit pleas for forgiveness, or to grant such pleas.

Cannold’s second main claim is that the confusion she sees in the system makes criminal prosecutors eager to lay charges, and hence makes doctors nervous.

She argues, “The retention of statutes only rarely enforced makes the law an ass. It also allows anti-choice crusaders wedged at various points in the legal system to prosecute whenever they choose.”

This is a very odd view of how Offices of Public Prosecutions work in Australia. And it is actually not at all clear why the infrequent enforcement of laws would allow the officers in such places to “prosecute whenever they choose”. In fact, the relative infrequency of prosecutions under abortion laws could conceivably just as well be adduced as evidence for a claim that the law is working well in restraining criminal behaviour.

Moreover, the examples Cannold uses to illustrate her thesis of over-zealous prosecutors do not serve her case. In 1986, Drs Bayliss and Cullen were acquitted of criminal charges, with the judge following the precedents of Davidson and Wald in directing the jury (R v Bayliss & Cullin (1986) 9 Qld Lawyer Reps 8). In 1998, the charges against Drs Chan and Lee were dropped after the law was reformed in Western Australia. And Dr Lachlan de Crespigny was not prosecuted at all, despite Cannold’s implication that he was: he was not “cleared” because he was never charged. (Moreover, the claims made by Senator MacGauran in regard to that case concerned “child destruction”, not the unlawful procuring of a miscarriage.)

Cannold offers no evidence for her assertion that “when one doctor is prosecuted the rest get nervous, reducing the services they provide and so undercutting women’s access to timely, professional care”.