The right to choose to terminate an unwanted pregnancy is under heavy attack again from conservative forces.
On September 11 the Australian Catholic Bishops' Conference and Australian Catholic Health Care Association were admitted as "friends of the court" to the long-running case of a Sydney woman whose pregnancy was repeatedly not diagnosed by Superclinic doctors until it was too late for her to have an abortion.
In 1994, NSW's Justice Newman ruled that her damages suit against Superclinic was invalid because the abortion she'd wanted was illegal. Then, in January 1995, Newman's decision was overturned by the NSW Court of Appeal, which gave the woman the right to pursue damages. The current High Court hearing is Superclinic's appeal against that decision.
While much of the argument for being admitted to the case involved the claimed potential legal liability of Catholic hospitals refusing to perform or refer women for abortions, the bishops' conference was clearer about its interest in the case after it was admitted: the church was "extremely pleased to have the highest court in the land possibly consider the fundamental issue of the right of the unborn". It sees the case as a chance to strike out common law rulings by judges in NSW in 1971, Victoria in 1969 and Queensland in 1986, which set out a fairly broad range of circumstances for legal abortions, while abortion remains in the state crimes acts.
In response, the Abortion Providers' Federation of Australia sought and was granted admission to the case on September 12. It will be arguing in defence of the common law rulings, which have not been directly challenged by either party to the case, but will be attacked by the Catholic bodies.
The ruling under challenge in NSW, made by Justice Levine in October 1971, states that an abortion is lawful if the doctor believes that "the operation was necessary to preserve the woman involved from serious danger to her life or physical or mental health — including the effects of economic or social stress — which the continuance of the pregnancy would entail". He also ruled that two doctors' opinions were not necessary and that abortion did not have to be performed in a public hospital, allowing the opening of feminist and other abortion clinics.
The current case highlights the inadequacies in the existing regime of abortion provision to women. It is now clearer that relying on common law judgments to liberalise abortion access while abortion remains a criminal offence is a strategy vulnerable to attacks by the right.
As well, while the Levine and similar rulings gave thousands of women access to abortion, it delegated the decision on the legality to doctors rather than to the woman concerned.
This case also underlines the problems highlighted in the recent furore over the NSW Labor government's decision to hand St George public hospital over to the Catholic administration running St Vincents hospital in Sydney. The government was forced to abandon its plans after significant community opposition, not least to the closure of abortion, contraceptive and other reproductive health services provided by the public hospital.
The Catholic Church's position on this issue contrasts with that of a majority of Australians who, according to repeated polls, support the availability of surgical and chemically induced abortions.
Currently, 13% Australia's hospital services are provided by Catholic hospitals. Given the pro-privatisation policy of all Australian governments, this share will almost definitely increase, with the result that women's access to safe, legal abortion and other reproductive health services — especially in regional areas — will deteriorate from very unsatisfactory to downright impossible.
To ensure women's right to choose to terminate an unwanted or unhealthy pregnancy, abortion must removed from the crimes acts, and public hospitals which provide a full range of health services must be maintained and developed throughout the country.
By Jennifer Thompson