Under Victoria’s proposed abortion legislation, women will be able to demand abortion for any reason right through nine months of pregnancy, writes Charles Francis QC.
When Victoria’s Abortion Law Reform Bill 2008 was tabled in the state parliament’s lower house, the feminist lobby protested that the Brumby Labor Government had adopted Model B, as recommended in the Victorian Law Reform Commission (VLRC) report, which set a limit of 24 weeks’ gestation for abortion on demand.
Beyond that foetal age, a woman seeking an abortion had to get the approval of two doctors.
Emily’s List feminists wanted the more extreme Model C under which there were no gestational limits and women could demand abortion for any reason right through nine months of pregnancy.
However, the pro-abortion lobby has now gone quiet on this issue, probably because they realise that in effect they have been given Model C.
As a matter of reality, clause 5 of the Abortion Law Reform Bill 2008 will create a situation in which abortion can be performed at any time during the pregnancy. The loophole is fairly similar to that created by Victoria’s famous Menhennitt ruling of 1969. After 24 weeks’ gestation, a woman only needs to find a medical practitioner who is prepared to perform an abortion for her, even though there be no reason under clause 5. In Victoria, there are already abortion-providers who are prepared to perform abortions on demand at any time during the pregnancy.
The medical practitioner only needs a partner or colleague who is prepared to collude and say that he too believes it appropriate in all the circumstances to perform the abortion. If thereafter any questions are asked pursuant to some inquiry or otherwise, all that the two doctors need say is that they both believed the abortion was appropriate in all the circumstances.
Thereafter they can refuse to answer any further questions directed to the question of why they formed that belief, on the grounds that any answer to the questions would be a breach of medical practitioner-patient privilege under the Evidence Act 1958. Thus the genuineness of their belief could not be tested.
In these circumstances, there would be no evidence by which proceedings for professional misconduct could be brought under the Health Professions Registration Act 2005. Consequently, unless the patient or the abortion-provider’s staff were prepared to provide evidence that the abortion was performed without any reason at all, abortion-providers could perform abortions at any time without risk of facing proceedings before the relevant board.
As mentioned above, this obvious loophole in the law is somewhat like the situation which inadvertently developed after the 1969 Menhennitt ruling. Because the onus of proof was on the Crown, the abortion-provider could assert the abortion was performed for serious risks but refuse to identify those risks because of the medical practitioner-patient privilege under the Evidence Act 1958. The Crown was then unable to prove that there were no serious risks to the woman’s physical or mental health.
No doubt those who drafted Victoria’s abortion bill wanted to place some limitation on abortions after 24 weeks’ gestation, but, in my view, the bill will not be effective in producing that consequence. In reality, in Victoria, we will have abortion on demand at any time during pregnancy.
Increased risk of premature birth
The VLRC was provided with evidence from over 50 studies that abortion increases the risk of premature birth in subsequent pregnancies, which, in turn, increases the risks of a range of complications, including cerebral palsy.
The VLRC was dismissive of all these studies (para 3.34) and relied on a British parliamentary report which merely said there were conflicting opinions on the subject. The VLRC added that “a large well-designed 2006 study showed no links but other studies showed some links” and the “UK report found no causal connection”.
The “well-designed 2006 study” appears to be a Finnish study by K. Raatikainen and colleagues. Canadian researcher, Brent Rooney, MSc., says this Finnish study is irrelevant, producing no data at all in relation to very early pre-term birth, i.e., under 32 weeks’ gestation.
Cat out of the bag
Although the British Journal of Obstetrics and Gynaecology is loath to publish any material suggesting abortion elevates the pre-term labour risk, an e-mail by its editor-in-chief, Dr Philip Steer, to a colleague let the cat out of the bag when his e-mail inadvertently reached the public domain. He wrote that “the link between TOP [termination of pregnancy] and pre-term labour … none of us dispute, the evidence is already overwhelming”.
Many British gynaecologists would have performed abortions or referred patients for abortions without any warning of this risk. In these circumstances, one can understand the reluctance of the Royal College of Obstetricians and Gynaecologists (RCOG) to publicly admit this risk.
– Charles Francis AM, QC, is a retired barrister who has obtained settlements for women who sued abortionists for their failure to warn of the psychological and physical risks of abortion. He is a former Victorian state MP and a former chairman of the Victorian Bar.