Abortion dilemma a polictical problem
The Australian, Friday, July 14, 1989
Abortion is the most serious moral dilemma commonly faced in our society. It also presents a legal dilemma which has been nudged out of sight (and out of mind) for almost two decades - until this week. The legal dilemma is set to become a political dilemma. Politicians who have avoided the issue and their responsibilities now have to face them squarely.
What has changed is that Judge Travis bindenmayer of the Family Court has held that the court can ride on matters arising during a marriage (and not past at its breakdown), including disputes about unborn children.
He refused to grant a man’s application to restrain his estranged wife from having an abortion because in "all the circumstances of this case the unborn child has no legal right to be born which this court can protect".
Judge Lindenmayer said his decision did not condone, encourage or otherwise permit abortion. If the wife went ahead, she had to take the consequences "so far as the application of the criminal law is concerned".
His ruling underscores several unsatisfactory elements of the law surrounding abortion. Abortion, in most States remains a criminal offence. Yet the Family Court is unable to restrain what maybe a criminal act. It is also unable to allot any rights at all to the father or the foetus.
This may be as society wants. But the evidence of vocal campaigning by pro- and anti-abortion groups, plus opinion polls showing support for abortion in some circumstances but not others, suggests this is not the case.
The heartache of abortion, of giving up a baby or of caring for an unwanted child is usually (and too often) borne by the woman alone. Abortion is a women’s issue: nothing is closer to the being of a woman than bearing or not bearing a child. But it is more than that. It is also a question of human rights and human potential. Every year, 80,000 abortions are performed in Australia. Not even the most outspoken pro-abortionist can rest happy with this human waste.
From the inid-1960s on, abortion moved from the backyard to the public hospital and specialised clinic. As it became a safe, simple procedure the number performed skyrocketed. But in all States, except South Australia, this move was accomplished by judicial interpretation, not by parliamentary decisions to change the law.
Since 1901, the NSW Crimes Act, for instance, has stipulated 10 years’ imprisonment for procuring unlawful abortion. In 1970, a judge of the District Court held that abortion to preserve the physical or mental health of the mother was not unlawful. Since them in practice, not wanting a baby - for reasons ranging from the most serious to the most trivial - has been enough. In every State any woman who wants an abortion can get what the law (except in South Australia) still says she should not have.
The only way to close the gap between the law and reality is for parliaments to confront the difficult questions. Is a women absolutely entitled to control her body? Do fathers and unborn children have any rights? May these be negated by the inconvenience of an unwanted pregnancy or by weightier. matters, such as threats to a woman’s health and mental well-being?
The problem will not go away. The Family Court decision virtually invites further litigation. But the gulf between condoned practice and prohibitive legislation is far too wide to be resolved judicially. If abortion on demand is to be legal, parliaments should say so. If abortion is to be permitted but regulated, the rules should be clarified. If the law is to remain, it should be enforced. Parliaments are elected to resolve divisions in society. Here is one division which demands their attention, one which they cannot evade.