Who’s confused?

Some doctors in Tasmania claimed to have developed nerves for a short period after a complaint was made by a medical student to police in 2001. But there is no evidence that abortion services were reduced after the prosecution of Dr Sood (see further links to this case at the end of the article) in New South Wales in 2006, for example. Indeed, apart from the case of Dr Sood, there seems to have been no successful prosecutions of doctors for unlawful procuring of miscarriage since the early 1970s, and in Victoria, not since 1969. (A possible exception is the 1981 case of Dr George Smart in NSW, where the facts resembled those in Sood’s case; Dr Smart died before his appeal was heard.)

What is more, in both criminal and civil cases in regard to abortion since the 1970s, no doubt has been expressed by any party as to whether the Davidson and Wald cases represent the law in this area.

So where is the confusion?

There is no legal provision or authoritative understanding specifying that abortion, of itself, is illegal in Victoria, or elsewhere in Australia. Moreover, there is no provision in the law specifying that all actions in procuring a miscarriage, terminating a pregnancy, are unlawful, criminal or illegal.

As to the approximately 80,000 medical abortions actually performed by doctors in Australia each year (Australian Parliamentary Library, How many abortions are there in Australia? Research brief, February 14, 2005), none is a crime by definition because nobody has been successfully prosecuted in relation to any of them, with the exception of the Sood case. Actions that are not presented to courts for prosecution, but which are nevertheless claimed or rumoured by some person to be illegal or criminal, fall outside the province of judicial deliberation.

The law on abortion is what the law is interpreted to be at present, it is in force, and it is not confused. The law on abortion might be complex, but no more so than any other area of the law where complexity is the price of precision.

There is indeed much confusion in the public, and its educators like Leslie Cannold, about the legality of abortion. But to claim, as Cannold does, that procuring an abortion is in itself a criminal offence in Victoria or elsewhere in Australia, simply adds to that confusion.