Another threat to women's right to choose

Wednesday, October 16, 1996

By Lisa Macdonald

Few people are aware of the existence of the Model Criminal Code Officers' Committee (MCCOC), yet it may be about to change many women's lives.

Established in 1991, this standing committee of attorneys general of Australia recently issued a discussion paper which proposes legal changes which would further limit women's access to abortion nationwide.

Currently, the legal status of abortion is set by state crimes acts or criminal codes. While abortion is technically still illegal in all states, various common law cases over the last 25 years have liberalised, to varying extents, women's legal right to abortion.

The MCCOC's discussion paper, titled Non Fatal Offences Against the Person, sets out a "model" criminal code which not only maintains the criminalisation of abortion, but also brings the legal status of abortion in all states into line with the most restrictive of the current state laws.

Since only women have the need to access abortion services, the continued inclusion of provisions relating to abortion in a so-called model criminal code will enshrine discrimination against women. As Women's Abortion Action Campaign spokesperson Margaret Kirkby points out, this "is a serious breach of clause 2(f) of the Convention for the Elimination of Discrimination Against Women, which requires that states 'modify or abolish' legislation which discriminates against women".

The paper proposes that two doctors' approval must be obtained before a woman can be referred for an abortion, and that the doctors' opinions must be formed "in good faith and after both have personally examined the woman". This proposal, currently law in South Australia, is more restrictive than the current situation in the other states and the ACT, where only one doctor's referral is required.

Such a change would make abortion access more difficult and time-consuming for women (especially in rural areas, where there is often only one doctor), and is also an unnecessary imposition on abortion providers. Medically, there is no case for singling out abortion, a relatively simple procedure, to require the opinion of two doctors.

The wording of this section in relation to the grounds on which abortion is permitted is also more restrictive than the current law in NSW, Victoria and Queensland. The paper proposes that an abortion is justifiable if two doctors form the opinion that either: "there is substantial risk that, if the pregnancy were not terminated ... the child ... would suffer from such physical or mental abnormalities as to be seriously impaired" or "the continuance of the pregnancy would involve greater risk to the life of the pregnant woman, or greater risk of serious harm to the pregnant woman, than if the pregnancy were terminated" (italics added).

Had current law limited the legality of abortion to these grounds — foetal abnormality or "serious harm" — thousands of women who have been able to have an abortion, on the grounds of the 1971 Levine ruling in NSW, the 1969 Menhennitt ruling in Victoria or the 1986 McGuire ruling in Queensland, would have been forced into illegal "backyard" abortions, with all the health risks, emotional trauma and financial costs that they entail.

These common law rulings, while still delegating the decision to a doctor rather than leaving it to the woman herself, nevertheless set a fairly broad range of circumstances in which abortion is legal, including the effects of economic or social stress if the woman is forced to continue the pregnancy.

If the wording of the MCCOC proposal is adopted, there is little doubt that the anti-choice forces will pursue more charges against abortion providers and patients, and lobby the courts to make the narrowest possible interpretation of "serious harm".

The MCCOC also proposes legislation to impose an upper limit on the stage of pregnancy at which a woman can have an abortion. An upper limit has never been before been legislated, and would result in even greater hardship for the small percentage of women who require late term abortions.

WAAC is calling on pro-choice organisations and individuals to make submissions to the MCCOC urging it to remove all provisions relating to abortion from its final report. This is "a code which is self-described as a 'model'. Such a self-definition implies aiming for an ideal, yet the entire sections regarding abortion cannot, by any definition, be described as ideal for women", Kirkby says.

It is possible for the attorneys general to propose to further restrict women's access to abortion, when an overwhelming majority of the population support women's right to choose, only because laws relating to abortion exist, whether liberal or not.

Like the current attempt by the Catholic Church to have common law precedents on abortion overturned in the Superclinics v CES case in the High Court, the MCCOC proposals underline that no law, however liberal, comprehensive or often tested in court, is permanently safe from the efforts of the small but politically powerful conservative forces when they go on the offensive against women.

The removal of all references to abortion from all state and federal laws is a precondition to successfully defending and extending women's access to safe, legal abortion.
[Submissions to the MCCOC should be sent, by October 31, to the MCCOC Secretariat, Criminal Law Division, Attorney General's Department, Robert Garran Offices, National Circuit, Barton ACT 2600.]