... and ain't i a woman?: A woman's right to choose

The Newman ruling, which last year affirmed that abortion is illegal in NSW, has been overturned on appeal, with much less fanfare than the original decision received.
Judge Newman ruled that a woman who was suing a medical clinic for negligence for failure to diagnose her pregnancy was not entitled to compensation for her inability to have an abortion, because he considered the procedure would have been unlawful. The woman attended the clinic five times and saw three doctors, two of whom failed to diagnose her pregnancy and one of whom failed to inform her that a pregnancy test had been positive.
By the time she discovered her pregnancy, she was informed it was too late for an abortion. Newman's decision upheld the negligence of the doctors involved, but denied the woman her right to compensation.
The case highlighted the problem of abortion laws remaining on the criminal code. In the ensuing debate advocates of abortion rights claimed that the decision made no difference to access to abortion, while the anti-choice movement heralded it as another step in restricting abortion rights.
Although the woman won her right to compensation on appeal on September 22, the judges involved in this decision could not reach consensus on the legality of abortion.
The court decided her termination would not necessarily have been illegal or legal — it was not possible for them to ascertain. Three senior judges held three differing views: Justice Kirby said her abortion would have been legal if she was facing serious danger to her mental health from continuing the unwanted pregnancy, Justice Meagher held that abortion was illegal, and Justice Priestley took a mediating view.
Confusion over the legal status of abortion is a direct result of the failure of governments to remove this surgical procedure from the criminal code. Abortion access is currently maintained through legal decisions which interpret extenuating circumstances under which it may be considered legal. The interpretation of these circumstances is at the mercy of the courts, lawyers and judges — not the woman herself.
Abortion is a woman's right to choose — not a doctor's, a lawyer's or a judge's. This is a fundamental aspect of women's right to control their own lives. Nuances of law and judge's interpretations may come down on the side of the woman, as in this case, or not, as in the earlier Newman decision.
There is only one way to avoid this ridiculous situation: all abortion laws must be repealed — now!
By Kath Gelber