ABORTION AND THE LAW; PERSONAL OBSERVATIONS AND THE REAL EXPERIENCE.

by David Grundmann MD
President, International Society of Abortion Doctors
Planned Parenthood of Australia

Good morning and thank you for inviting me to talk to you this morning. I hope that this presentation will be informative and a little controversial and that it will stimulate some vigorous debate about abortion law and how it affects providers, patients and the legal system as a whole.

What I am going to do is give a short synopsis of the religious, legal and historical background of our current abortion laws, how they have failed us and what remedy we can take. The framework I have used is based on a comprehensive booklet produced by the Childbirth by Choice Trust in Canada of 1995, from which many of my references are taken, and from some excellent and constantly evolving work done by Children by Choice in Brisbane. I have both documents with me and will make them available to you. I believe that between these two documents you will get as complete an understanding as possible of the genesis and changes of abortion law and practice worldwide. In 1993 I gave a paper to the Law, Medicine and Criminal Justice Conference on the Gold Coast. The opening paragraphs went something like this:

"At 2.30 am on a Saturday morning on the last week in October in 1969, a 23 year old woman was brought into the emergency section of the Royal Women's Hospital in Melbourne. She was very ill and in a great deal of pain. Her blood pressure was 80/40, per pulse was rapid and week. Her temperature was 39.4 degrees Celsius, and her breathing was shallow. A foul smelling and bloody discharge came from her vagina. She was clinically in septic shock. Emergency resuscitation procedures were started immediately. An intravenous line was set up and very high doses of broad spectrum antibiotics were commenced. She was admitted to the ward for observation and stabilisation prior to surgery. It was thought that she would need a hysterectomy. 24 hours later she was dead.She was a victim of an illegal backyard abortion.

At 10am on Monday 20 May 1985, in a precisely timed and military like raid, with TV cameras and reporters poised, more than 100 Queensland police officers raided two abortion clinics - one in Brisbane and one in Townsville. Equipment was seized and over ten thousand patient files were confiscated. Two doctors were charged with conspiracy to perform illegal abortions.

The young woman's death in 1969 and the clinic raids in 1985, although separated by over 15 years and almost 4,000 kilometres had two things in common. They were both the result of Australian abortion laws and they both involved me.

In 1969 I as a fifth year medical student I saw for the first time, the horrors of illegal, backyard abortions and in May of 1985, I was the Medical Director of a clinic in Townsville that had since 1983 been trying to eliminate those very same horrors.

In the time that it took me to make these opening remarks, somewhere in the world, another woman has died as a result of an illegal, unsafe, backyard abortion." (1) (Grundmann. 1993)

Over the last 10 years many things have changed. Some for the better and some for the worse. So, why are we still talking about abortion and the law ? There are three main reasons for this.

1: Abortion medicine is the only area of health care that is still subject to proscription under the criminal laws of this country.

2: The existence of these laws has a direct and negative impact on the ability to provide health care to a significant number of people in Australia.

3: The existence of these laws has a significant and negative influence on the ability to obtain information about and to gain access to safe and affordable abortion health care services.

The History of Abortion.

Abortion is not a modern aberration, but a practice common to human communities throughout history. In 1955, anthropologist George Devereux demonstrated that abortion had been practiced in almost all societies since the dawn of civilisation.(2)

The use of abortion world wide since before recorded history, has been frequent and similar. Women faced with unwanted pregnancies have always turned to abortion with scant regard to religion, legal sanction, safety or consequence.(3)

Abortion has always been used to deal with drastic changes in personal, family and community life. In fact, abortion has been called a "fundamental aspect of human behaviour".(4)

Evidence from forensic archaeologists have shown us that many primitive societies used various means to induce abortion. These include herbs, poisons, sharp sticks and abdominal pressure. The oldest known medical texts describe abortion methods.(ibid 3.)

Abortion techniques have been described by the ancient Chinese, Egyptians, Greeks and Romans. All of these societies considered abortion as an integral part of maintaining a stable population, and ancient instruments such as those found at Pompeii are not unlike modern surgical instruments. Socrates, Plato(5) and Aristotle (ibid 3) all suggested various abortion techniques and even Hippocrates - who condemned abortion for fear of injuring the woman - recommended it on some occasions.

The Churches' View.

Historically, early abortion was tolerated by the Church, and although early Christians condemned abortion, they did not view termination of the pregnancy to be an abortion before "ensoulment". Early Christians defined "ensoulment" as the beginning of "life in the womb" and interestingly, this was considered to occur 40 days after conception for a boy and 80 days after conception for a girl. Canon law, accepted by the Church in the year 1140 did not view abortion as homicide. (6) This opinion was widely used by priests around the world until the new code of Canon Law of 1917 and carried great influence.( 7)

In the early thirteenth century Pope Innocent III opined that "quickening", the time when foetal movements are first felt, was the time at which abortion became homicide. Prior to this, abortion was a less serious sin. Abortion was not considered to be a ground for excommunication by the Catholic Church until 1869. The Roman Catholic Church had adopted a very tolerant attitude to abortion until the end of the nineteenth century.(8) In 1869 Pope Pious IX determined that abortion at any stage of pregnancy required excommunication. Many interpreted this change of attitude by the church as a counter to the rising birth control movement, particularly in France where the Catholic population was declining.

In Italy between 1848 and 1870, what had previously been the Papal States shrank from one third of what is now Italy, to the Vatican City. Some have argued that in the face of it's declining political power, this much stricter view on abortion was necessary to reinforce the Church's spiritual and political control.(9)

Evolution of the Law.

For centuries, abortion was not punished under English common law. British society in general regarded abortion as a moral issue.(10) Punishment for abortion was rare, and until after the mid nineteenth century, the State did nothing to regulate abortion. (11) (12)

In 1670 the question of whether or not abortion was murder came before an English Judge, Sir Matthew Hale. His decision clearly indicated that if the woman died as a result of an abortion, the crime was murder. The foetus however was not mentioned.(13)

In 1803,the tolerant approach to abortion ended when Lord Ellenborough codified a law that made abortion of a "quick" foetus a capital offence.(14) In 1832, an article in the London Legal Examiner, maintained that much stricter abortion laws were essential because abortion was very hazardous and often fatal for the woman, but that the destruction of an embryo was not a crime.( 15)

These very restrictive abortion laws were imported from Great Britain to all of the countries she colonised. However, the impetus for restricting abortion was not a public movement. Physicians were the driving behind the move to criminalise abortion, in England(16), the United States(17) and Canada.(18) Their concern was principally for the health of women, but secondly for the destruction of foetal life. However, many references suggest that the main reason for doctors' opposition to abortion was to further establish their professional status and to remove midwives (the traditional abortion providers), herbalists and "quacks" from the practice of medicine.(19)(20)

Demographic concerns were also a powerful stimulus to reduce the incidence of abortion and at the end of the nineteenth century, expanding colonial nations, recognised the importance of large populations.(21)(22) Despite the criminalisation of abortion, women continued to use this form of birth control, considering it entirely ethical and remaining remarkably ignorant of it's illegal status.(23) The incidence of abortions changed little despite it's criminalisation, however the laws did manage to drive the practice underground and made it a clandestine and therefore much more hazardous procedure for women.

As a British colony, these laws were imported to Australia and both Spanish and American influence in South America, China and Japan, caused criminalisation of abortion in those countries for the very first time. The American historian James C. Mohr makes it very clear that the nineteenth century's wave of restrictive abortion laws were a deviation from the norm, a very uncharacteristic interruption of the tolerant attitude toward abortion worldwide until then. (24)

The Liberalisation of Abortion Laws Abortion was highly restricted almost everywhere in the world from the second half of the nineteenth century to the end of WWII. The countries of Eastern and Central Europe were the first to liberalise their abortion laws in the early 1950s. This trend to a more liberal attitude extended to the developed countries during the 1960s and 1970s. Several developing countries, particularly China and India also relaxed their restrictions on abortion during this period. More liberal attitudes toward sexuality and a lessening of the influence of the church were partially responsible for these changes. (25)(26)

The ravages of rubella epidemics and the thalidomide disaster increased the realisation that a more liberal attitude toward abortion laws was essential. Burgeoning post war populations and the serious health hazards of illegal abortion, gave added impetus to the need for decriminalisation of abortion. Simply put, the number of women dying from, or being seriously injured, by illegal and unsafe abortions had become a significant public health issue in the developed world. The need for access to safe abortion services worldwide was becoming very apparent. It should not be forgotten that these changes were also occurring against a background driven by the social and political movements of the sixties and seventies.(27)

The Law in Queensland

With this brief synopsis of the political, legal and religious history of abortion behind us, let us now take a closer look at the abortion laws in Queensland. We will see how they affect the government, we the providers and practitioners, you the lawyers, and most importantly the people who employ us all: the citizens of Queensland. Until recently, all states and territories in Australia, have had laws that make performing an abortion a criminal offence. The sole exception is the ACT and this change is literally only weeks old.

All Australian abortion laws were, in the past based on the old English law of 1861, the Offences Against the Person Act. This law made headlines in England in 1939 in R -v- Bourne 1 KB 687, when a well respected London obstetrician, Dr Bourne openly performed an abortion on a young rape victim and was subsequently charged under s.58 of the Offences against the Person Act UK. This Act is substantially a combination of our Sections 224 and 225 of the criminal code. The word unlawfully is used in that section as it is in the Queensland criminal code, and this clearly means that some abortions must be lawful. The presiding judge, Macnaghten J. had to decide what justifications would render an abortion unlawful. He drew on section 1 of the Infant Life (Preservation) Act 1929 UK. This Act provides: "...any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act, (unlawfully) causes the child to die before it has an existence independent of its mother, shall be guilty of a felony...of child destruction..." That section provided a defence where the act which caused the death of the child was "done in good faith for the purpose only of preserving the life of the mother". This, of course, is virtually the same terminology as is used in Section 282 of the Criminal Code.

One interesting difference is that the Criminal Code does not include the world "only" and therefore it may be that the defence provided by the code is broader than the defence provided by the Infant Life (Preservation) Act. Macnaghten J. formed the view that the defence provided in the Infant Life (Preservation) Act was available to Dr Bourne in respect of the charge under the Offences Against the Person Act. Therefore it was necessary to interpret the term "preserving the life of the Mother".

In his direction to the jury, Macnaghten J. used words that have now become famous: "...Those words ought to be construed in a reasonable sense, and, if the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are entitled to take the view that the doctor... is operating for the purpose of preserving the life of the mother."

In Queensland the relevant laws are sections 224, 225 and 226 of the Criminal Code 1899. These laws were mirrored by similar laws in the rest of Australia. Basically these statutes forbid the performance of an unlawful abortion, being the patient in receipt of an unlawful abortion, and finally providing drugs equipment or instruments to perform an unlawful abortion. All three laws provide for gaol sentences of between 3 and 7 years. The defence to these criminal charges in Queensland are found in section 282 of the Criminal Code. In the celebrated Bayliss/Cullen trial of 1986, the defence in section 282 was used. That defence was upheld by Justice Maguire, who interpreted this law in the same way that Menhennit J. and Levin J. did in their respective cases in Victoria and New South Wales in the late 1960s and early 1970s.

At the end of this presentation I intend to open Justice Maguire's decision for discussion. One thing is very clear. Restrictive abortion legislation does not lead to a lower abortion rate. The data from Romania when it prohibited abortion, from Italy before its liberalised abortion law, and from Latin America, the Middle East, Africa and other developing countries show that the abortion rate is as high there as in countries where abortion is legal.

Paradoxically, and demonstrated by numerous examples in the United States, in the jurisdictions (States), where abortion rights have been most seriously eroded, availability of contraception and sex education are limited. Child abuse is high and the rights of women, particularly those women at the lower end of the socioeconomic scale, are extremely compromised.

A similar situation exists in Australia where, despite ongoing liberalisation of attitudes and laws about abortion, women in remote communities and/or of indigenous background, low socioeconomic status, poor education, and/or women from non English speaking countries are similarly disadvantaged in their ability to access safe and affordable abortion services. Whether legal or not, every year millions of women around the world- of all cultural, religious, and economic backgrounds- seek out abortion when they cannot carry a pregnancy to term.(28)

History has shown us that restrictive laws do not stop abortion. It is the number of maternal injuries and deaths, not abortions, that is most affected by restrictive legal codes.(29) Abortions performed outside the law have a higher rate of complications and deaths, the majority of which are entirely preventable.

Worldwide, more than one third of the estimated 50 million annual abortions are illegal and with the notable exception of Ireland occur mainly in the developing world. Researchers estimate that each year, between 70,000 to 200,000 women around the world, die from illegal and unsafe abortions.(30)

Doing away with such purposeless human suffering has been one of the main motives behind the movement to liberalise abortion laws. At present almost two thirds of the world's women live in countries where abortion may be legally obtained for a broad range of social, economic or personal reasons. When abortion is made legal, available and safe, women's reproductive health improves. Abortion-related mortality is reduced by at least 25% and related illness by far more. When abortions are safe and affordable, the vast majority of women terminate their pregnancies in the first trimester.(31) When women can avoid births that are unwanted, mistimed, or too numerous, their children are more likely to survive and be healthy.(32) The incidence of infanticide and child abandonment typically go down when abortion is legalised. However, even in countries where abortion laws seem "liberal", it cannot be assumed that every woman has an equal chance of getting an early, safe abortion if she needs one.

Changes in laws, while necessary, are not themselves sufficient for widespread access to family planning and safe abortion services.(33) Recent changes to the day surgery regulations and accreditation processes in Queensland have made abortion access more limited and far more expensive.

At the U.N. International Conference on Population and Development (ICPD) in Cairo, held in September 1994, representatives from over 180 nations met and developed the ICPD Program of Action, which had this to say about abortion: "All Governments and relevant intergovernmental and non-governmental organisations are urged to strengthen their commitment to women's health, to deal with the health impact of unsafe abortion as a major public health concern and to reduce the recourse to abortion through expanded and improved family planning services."(ibid. 10)

It has long been recognised that the number of abortions can be effectively reduced by educating people on human sexuality and family planning, and by making safe, appropriate and effective contraception available. Empowering women in society, as well as involving men more in reproductive issues, are also vital in reducing the rate of unwanted pregnancy, and hence abortion.

I am reminded of this quote from the Women's Encyclopedia of Myths and Secrets so eloquently put by Barbara Walker: " Each woman must be free to make her own choice, No man may safely decide for her; She must give life gladly To be able to give it well."

David Grundmann Brisbane September, 2002

DISCUSSION The Maguire decision. Perhaps I do not give Maguire, J enough credit for being an astute jurist and perhaps his decision was coloured by his deeply held Catholic beliefs. Maybe his decisions were not his alone, but strongly influenced by the politics of the day. In any case, it is my firm belief that in using the second arm of s.282 as a defence against the charge of illegal abortion as was done in Bourne, Wald and Davidson to provide a limited defence for cause and proportion " to preserve the life of the mother" and " that this should in no way give carte blanche for abortion on demand" Maguire could have simplified matters greatly and given Queenslanders what they really wanted by using the first arm of s.282 only. That is, "a person is not guilty of a crime if he/she operates upon someone for their benefit". This would have indeed made abortion on request legally available to the people of Queensland. Maguire, a devout Catholic would have been horrified by this out come and it is likely, but purely speculative of me to suggest that political pressure was exerted to bring about this outcome. Look at the second arm of s.282 and see what it says and what it really means. " A doctor is not guilty of a crime if he/she operates upon an unborn child to preserve the life of the mother".

There are two vital points to make here.

Firstly, it must be understood when this law was introduced, and why. As stated before, s.282 of the criminal code was introduced in 1899. It was needed to protect Obstetricians of the day because caesarean section was a dangerous and often fatal (for the woman ) operation and destructive procedures on the foetus were often carried out to save the mother's life when natural vaginal delivery was impossible.

Secondly, it is my firm belief that a suction evacuation of a six to 12 week uterus is an operation on a woman, and not an operation "upon an unborn child". Such operations are done these days, but with the aim of saving the baby. Intra uterine cardiac surgery, repairs of diaphragmatic hernias and many others are now routine surgeries. They are operations on an unborn child. They are successful and they are essential. But they have nothing at all to do with abortion. It was clear that the time had come to substantially liberalise (or remove completely) abortion laws in this State, and also to take steps to make abortion available in remote and rural areas and at state cost through the public hospital system. Decriminalisation of abortion by legislation ( as has recently occurred in the ACT ) was a further option that successive Labor Governments, elected by very healthy majorities ( and whose major social platform included abortion law reform ) had. Neither the Goss nor the Beattie governments have had the stomach for such radical change.

Geography, Demographics and Socioeconomic Issues.

The issues of distance in this large state, limited and often absent sex education, a diverse population with a broad educational and socioeconomic spectrum and ethnic and racial backgrounds still makes abortion services difficult to access. This needs to be addressed, and I believe that to do this abortion must be decriminalised and made more widely available either through the public system, or more liberally subsidised in the private sector. Queensland women, married and single, can have their babies for free through the public hospital system, why must they pay for and thus be punished for being responsible parents and planning their families.

References:

1. David Grundmann, "Abortion and the Law : A 25 year Personal Perspective". Paper prepared for the Australian Institute of Criminology. Law Medicine and Criminal Justice Conference. Marriott Surfers Paradise Resort, 6-8 July 1993.

2. George Devereux, "A Typological Study of Abortion in 350 Primitive, Ancient and Pre-Industrial Societies", in Therapeutic Abortion, ed. Harold Rosen, New York: The Julian Press Inc., 1954.

3. H.P. David, "Abortion Policies", in Abortion and Sterilization: Medical and Social Aspects, J.E. Hodgson, ed., Grune and Stratton, New York, 1981, pp.1-40.

4. Nan Chase, "Abortion: A Long History Can't Be Stopped", Vancouver Sun, May 1, 1989.

5. Wendell W. Watters, Compulsory Parenthood: the Truth about Abortion, McClelland and Stewart, Toronto, 1976, p.52.

6. Deborah R. McFarlane, "Induced Abortion: An Historical Overview", American Journal of Gynaecologic Health, Vo. VII, No. 3, May/June 1993, pp.77-82.

7. Jane Hurst, "The History of Abortion in the Catholic Church: The Untold Story", Catholics for a Free Choice, Washington, D.C., 1983.

8. Wendell W. Watters, p.79.

9. Ibid, pp.92-3.

10. Alison Prentice et al, Canadian Women: A History, Harcourt Brace Jovanovich, Canada, pg.165.

11. Donald P. Kommers,"Abortion in Six Countries: A Comparative Legal Analysis,in Abortion, Medicine and the LawFourth edition,J.D. Butler & D.F. Walbert, eds., Facts on File, N.Y.1992, p.312.

12. Janine Brodie et al, The Politics of Abortion, Oxford University Press, Toronto, 1992, p.9.

13. Jimmey Kinney.Ms., April 1973, p.48-9.

14. A. Anne McLellan, "Abortion Law in Canada", in Abortion, Medicine and the Law, op. cit, p.334.

15. Donald P. Kommers, p.317.

16. James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, New York: Oxford University Press, 1978.

17. Constance Backhouse, Petticoats and Prejudice: Women and the Law in Nineteenth Century Canada, Women's Press, Toronto.

18. Terry, "England", in Abortion and Protection of the Human Fetus 78, (S. Frankowski and G. Cole, eds., 1987).

19. James C. Mohr, p.244.

20. Wendell W. Watters, p. xv.

21. Boston Women's Health Book Collective, Our Bodies, Ourselves, 2nd ed. (New York: Simon & Shuster, 1971), p.216-7.

22. Angus McLaren and Arlene Tigar McLaren,The Bedroom and the State: The Changing Practices and Politics of Contraception and Abortion in Canada1880-1980, M & S,Toronto.,1986, p.38-9.

23. James C. Mohr, p.259.

24. Stanley K. Henshaw, "Induced Abortion: A World Review, 1990", Family Planning Perspectives, Vol. 22, No. 2, March/April 1990, p.78.

25. Stanley K. Henshaw, "Recent Trends in the Legal Status of Induced Abortion", Journal of Public Health Policy, Summer, 1994, pp.165-172.

26. Wendell W. Watters, p.98.

27. Jodi L. Jacobson, "The Global Politics of Abortion", Worldwatch Paper 97, July 1990, p.53.

28. Jodi L. Jacobson, pp.7 & 47.

29. Santi Conly et al, "Expanding Access to Safe Abortion". Population Action International. 1993.

30. Jodi L. Jacobson, p.56.

31. Jodi L. Jacobson, p.44.

32. Jodi L. Jacobson, p.12.

33. Rachael N. Pine, "Achieving Public Health Objectives through Family Planning Services, Reproductive Health Matters, No. 2, November, 1993, London, England.