Category: Law

This article originally appeared on Hoyden About Town.

NSW Parliament is sitting in March, and after Crimes Amendment (Zoe’s Law) Bill (No. 2) 2013 passed the lower house after a conscience vote late last year, it is before the upper house. The campaign opposing it is Our Bodies Our Choices (see also @OurBodiesChoices on Twitter).

I attended a forum on 26th September 2013 hosted by Greens MLC Dr Mehreen Faruqi with speakers opposing the law and hope to transcribe and share them with you this week. The first speaker, shown in the video below, was health lawyer Julie Hamblin, opposing the bill on the grounds that even limited recognition of fetal personhood, combined with the legal grey area of abortion access in NSW, would allow someone to challenge access to abortion in NSW.

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Note: as with Philippa Ramsey, the following speaker, I think most members of the Hoyden community will be concerned by Hamblin’s positioning of abortion on the grounds of fetal anomaly as a special case concerning. In 2009 Lauredhel wrote the following:

As a feminist, I believe that we can have the abortion-rights conversation without marginalising, othering, and disparaging people with disabilities. I believe we can talk about abortion within that broader framework of reproductive justice, and that we can confront the ableism that creeps into some abortion-rights conversations head-on. This takes effort; we must think clearly, write carefully, read closely.

As I recall, Ramsey in particular was challenged on this in question time, Leslie Cannold, who spoke third, agreed with the question and wanted the pro-choice movement to stop relying on this argument.

Transcript

Mehreen Faruqi: Good evening and welcome everyone. I’m Mehreen Faruqi and I’m a Greens MP in State Parliament. I have the carriage of the Portfolio for the Status of Women for the Greens and I also have the privilege tonight of being your MC. I’ll start by acknowledging the traditional owners of the land we’re meeting on the Gadigal people and pay my respect to the elders past and present. This land always has been and always will be Aboriginal land.

I’d also like to acknowledge a couple of my colleagues from NSW Parliament: Greg Piper, who’s an Independent in the lower house and Dr John Kay, who’s a Greens in the upper house. Thank you both for coming. And thank you all of you for making time tonight to come and participate in this community forum which really is about helping us unpack some of the implications of this fetal personhood law which is also known as “Zoe’s Law” that we have in front of Parliament at the moment.

This law is being debated in NSW Parliament at the moment so I think it’s really timely that we talk about it discuss it and get enough information about it to see why it is actually inappropriate and dangerous for women’s rights. The media has given quite a bit of coverage the last couple of months also NSW Bar Association and the Australian Medical Association Family Planning NSW and the Greens have come out and clearly stated their position in opposition to this Bill. There’s also a coalition, a group formed by a coalition, of women’s groups called Our Bodies Our Choice who are running the campaign also to provide information to the community to lobby the MPs, to provide information to them about the implications of the bill.

And tonight we’re really fortunate to have three excellent speakers with us who will take us through the legal, health and medical implications as well as the consequences for women’s rights of this particular bill. Each of our guests is going to speak for about 10 to 15 minutes and then we’ll open up for about 30 minutes to 40 minutes to have a discussion and also to ask questions of our speakers.

We will be recording tonight’s session and we’ll make a Youtube and put it up on our website so if you have any issues being recorded it will mainly be the speakers but we might record you when you’re asking your question if you have any issues with that just let us know and we’ll edit you out.

OK, so our first speaker for tonight is Julie Hamblin. Julie is a lawyer with more than 20 years experience advising the public and private health sectors on health law, medical negligence, clinical risk, bioethics and public health. She has held a number of government appointments in the health sector including the Australian Research Integrity Committee, the Australian National Council on HIV/AIDS and Related Diseases, and the board of the former Central Sydney Area Health Service. In December 2012, Julie was appointed to the NSW Clinical Ethics Advisory Panel. Julie has a long standing interest in sexual and reproductive health, and has undertaken consultancy work with HIV and related sexual health issues in more than 20 countries, in Asia, the Pacific, Africa and Eastern Europe. So please warmly welcome Julie Hamblin.

[applause]

Julie Hamblin: Thank you Mehreen, thank you everyone for coming along tonight to talk about this really important issue it’s something that’s very close to my heart and I, um, think it’s so important that we all understand exactly what is at stake with the bill that is before NSW Parliament at the moment.

What I wanted to do in my comments is to talk first of all very briefly about how the law currently regards fetuses and why a legal person — a fetal personhood law would be such a significant change to the existing law. And then I want to spend a little bit more time talking particularly about the legal status of abortion in NSW because this is one of the things that I am particularly concerned about in relation to Zoe’s Law because we have a really uniquely precarious position with abortion law in NSW. And i think we all need to understand the fragility of lawful abortion in this state in order to realise just how risky it would be if this bill goes through.

So just to give a little bit of a background about how the law has traditionally regarded fetuses. In short, the law in NSW has always adopted what is known as the ‘born alive’ rule. And what that says is that until a child is born and takes a breath the child is not to be regarded as a legal person. And so there are some situations around the edges where the law has had to look at should there be changes made to the born alive rule?

Let’s say for example, there have been cases where a pregnant woman has been involved in a car accident and has had, has sustained injuries which has included an injury to her fetus. And the courts have held that if that fetus goes on to be born alive, hence the born alive rule, goes on to be born alive, the fetus as a person, as a legal person after birth, will have the right to claim damages, to be compensated for the injuries sustained while in his or her mother’s womb. But that legal right only crystallises, and this is a really important point, that legal right only crystallises once the child is born alive.

And so although there is a recognition of injuries sustained while a fetus, the principle of the born alive rule is maintained. And there are numerous examples of that. There was one I was reading about just a couple of weeks ago in relation to the coroner’s jurisdiction. Because under the coronial legislation certainly in NSW and I think in most states in Australia the coroner has jurisdiction only to investigate deaths. So if it’s a stillbirth, under the Coroner’s Act, the coroner doesn’t have jurisdiction, because you haven’t had a person who has been born alive. And there has been some debate about whether it would be appropriate for the coroner’s jurisdiction to be expanded so that the coroner could investigate circumstances surrounding stillbirths as well as circumstances surrounding the deaths of children who have been born alive.

But that hasn’t happened, and even in the literature about a possible extension of the coronial jurisdiction to stillbirths which would be much less concerning than a full recognition of fetuses as a person there has been opposition to that on the basis that that would encroach upon the born alive rule which is considered to be a very important dividing line as to why—, when and in what circumstances the law should recognise someone as an individual person.

So that’s a starting point. We have in NSW the born alive rule, it is a very strong and very well established legal principle. And I am certainly not aware of any other case, and an example of a court decision or of legislation, which has departed from the born alive rule.

So that’s the background that we have when we look at Zoe’s Law. Because Zoe’s Law would be a radical departure from the born alive rule. And all those who support it say but it’s only limited to the particular circumstances of grievous bodily harm offenses that it would relate to but none the less, in legal terms, it would be a very significant development because it would be the first time that NSW law
has recognised a fetus as a legal person. And that is a very significant change to the law.

Why does it matter? As I’ve said all those people who are supporting Zoe’s Law say but it’s limited to the circumstances of these particular grievous bodily harm offences, it won’t affect other areas of the law such as abortion. I believe that is simply an incorrect legal analysis.

I just wanted to spend the second part of my time um, going over a little bit of the background what is the legal position of abortion in NSW. And why given that background having a provision that recognises a fetus as a person even if it’s only in the context of these particular sections of the criminal code why that would a threat to lawful abortion in this state.

So, what is the current abortion law in NSW? Um, I can guarantee you, because I’ve done this a million times, if you take a straw poll against your friends and colleagues, and you say “Is abortion legal in NSW?” The overwhelming majority of people will say “of course it’s lawful in NSW.” People simply don’t realise that abortion is still a crime in NSW.

One of the major problems that we have doing abortion advocacy is to convey to people that there is a problem. Because the majority of people think that it’s all been sorted that we have abortion on demand in NSW.

Sadly, the truth is a long way from that. Abortion is still a criminal offence in NSW. It always has been for as long as the Crimes Act has been in place, which is now well over 100 years and the offence has not changed over that time. Ah, it’s imported from the original British criminal code provisions. And it’s an offence, I put up the wording of the offence on the slide there, it’s an offence both for a woman who does something to herself to procure her own miscarriage which is the wording that they use and it’s also a criminal offence for another person to administer something, to perform a procedure that brings about a woman’s miscarriage.

But the critical word, which you can see there in both those offences is “unlawfully”. Because it says “whosoever unlawfully administers to herself” or if you’re a doctor or someone else “whosoever unlawfully administers to a woman”. And so the interpretation of a lawful abortion in NSW hinges on this one small word, “unlawfully”. And it’s quite an unusual provision in the context of the Crimes Act
because the Crimes Act doesn’t define what “unlawfully” is. In most of the other offences in the Crimes Act it says “well, these are the elements of the offences, and these are the things that might be a defence to a particular criminal offence.” It doesn’t say that in relation to the abortion offences. So that’s a really significant problem to start with in terms of getting clarity as to what the legal position is.
So what the law says is “if you do something unlawfully it’s a criminal offence.” Particularly unhelpful.

And so in terms of deciding and determining what really is lawful and what is not lawful we have to look to how the courts have interpreted that one word “unlawfully”. Um, there have not been many court decisions but the ones that there have been—

[Hamblin was interrupted here by troubles with the projector]

So the definition of unlawfully and the way unlawfully has been interpreted by our courts goes back to two very old decisions one in 1969 in Victoria and one in 1971 in NSW. And what they’ve said in short, I’ve put up the precise wording there, what they have said in short is that it will be lawful if the abortion is considered to be — is reasonably considered to be — necessary to preserve the woman from a serious danger to her life or her physical or mental health and in the circumstances is not out of proportion to the danger.

So in short what you need to show in order to establish that an abortion is lawful is that it’s necessary to prevent a serious risk to the life or health of the woman. It’s known as the Menhennitt rules, the test. And in NSW we had a case in 1971, R v Wald, where that test was adopted.

Actually a very interesting background to that case. It was, it was, quite a shocking set of circumstances that gave rise to it. Dr Wald was a doctor who ran a termination clinic in Clovelly I think, somewhere in the eastern suburbs, and there was a police raid on that clinic, without notice one day, with women on the operating table in the middle of having terminations. And Dr Wald was charged with unlawfully performing an abortion. And the main statement that we have of the law in NSW comes from that case, and it’s not even from an actual decision by the judge. It’s from directions that the judge, in the criminal trial of Dr Wald, gave to the jury. But what the judge did was to adopt the test of serious risk to the life or health of the woman.

Since then we’ve only had a very very small number of cases. And that I guess is a good thing, it shows there isn’t a lot of appetite to bring criminal prosecutions to court. And the cases that we have had by and large have upheld the test in Wald, which says that an abortion is lawful if it is necessary to prevent a serious health to — er, serious risk to the life or health of the woman. And it’s been expanded to acknowledge that there might be economic and social grounds on which the continuation of the pregnancy might pose a serious risk to the woman’s health or life.

And so everything seemed to have a sort of uneasy equilibrium until 2010 where in Queensland as you may have read there was a prosecution brought against a young woman who had a medical abortion at home
using RU486, that she administered to herself. And she was criminally charged under the Queensland criminal code which was very similiar at that time to our code. It’s since been amended to make it a little bit better, not much but a little bit. And so she was charged with unlawfully procuring her own termination.

She was acquitted by the jury we don’t have reasons so we don’t know exactly what the thinking was of the jury. We have some hints from the directions that the judge gave to the jury. And I can talk more about that later I don’t really have time to go into that now.

So she was acquitted and that’s a good thing. But it certainly was a very stark reminder of just how precarious a position we have in NSW and Queensland where we still have these outdated offences in our criminal code that can be brought into life at any time if the circumstances come together such that uh, either a woman or a medical practitioner, could be criminally charged.

So just briefly, and to sum up, why is the existing abortion law so unsatisfactory?

Well, you know, where do you begin? There are so many reasons.First of all, it remains a criminal offence, and as I’ve said that’s obviously a problem. Because this, the lawfulness depends upon how the courts interpret this word “unlawfully” on the facts of a particular case. It’s a very unstable foundation for lawful abortion in this state. It’s subject to particular facts of the case, it’s subject to the personal inclinations and beliefs of particular judges, and we have had a case that was overturned in appeal in NSW — the Superclinics case — where the particular personal beliefs of a judge clearly intervened in his decision in declaring a particular abortion had been unlawful.

And as I’ve said, we know from the case in Queensland that while prosecutions are rare, they’re certainly a very real possibility. In practice what it means of course is that abortion is in a grey zone. It is not fully legal like other mainstream medical procedures. In NSW terminations are performed overwhelming in the private sector, not in the public sector, and there are really concerning issues about cost and access as a result of that.

Fetal anomaly is not a relevant consideration to the test of unlawful abortion except to the extent that a child, if born disabled, might have an impact upon the psychological health of the mother. And that’s just ridiculous. You know, we know that the overwhelming majority of public opinion supports access to abortion at least in that — in those circumstances. Indeed the majority supports it in an even broader set of circumstances. But certainly to have a law that doesn’t recognise serious fetal anomaly as grounds in itself for a lawful abortion is quite concerning.

And so we’re left with a disconnect between what the law says, what most people think it says, and what is actually happening in practice. Because we have clinics who— that are operating where terminations are performed but where it’s done with a concern constantly to be able satisfy this very limited test of serious risk to the life or health of the woman that doesn’t really accord with the motives and with the reality of what’s happening with a lot of terminations.

And so finally just to bring it back to the concern about Zoe’s Law: because we have this fundamental instability and a lack of a secure foundation a secure legal foundation for abortion in NSW, any law that recognises a fetus as a living person — which is what Zoe’s Law will do — however limited it is to the particular section of the Crimes Act that the amendment relates to — however limited it is — it provides ammunition for someone who wishes to challenge the lawfulness of an abortion the next time a case comes to court. And that’s an issue that I think should be of serious concern to all of us.

Thanks very much.

This article originally appeared on Hoyden About Town.

The NSW Legislative Assembly (lower house) will shortly be voting on Crimes Amendment (Zoe’s Law) Bill (No. 2) 2013, a private members bill introduced by Liberal MP Chris Spence in the lower house and (if passed) to be introduced by Christian Democratic Party leader and MP Fred Nile in the upper house. This Bill proposes to insert Section 8A into the Crimes Act 1900 No 40, where Section 8A would read in part:

8A Offences in relation to the destruction of or harm to the foetus of a pregnant woman

(1) In this section… unborn child means the foetus of a pregnant woman that:
(a) is of at least 20 weeks’ gestation, or
(b) if it cannot be reliably established whether the period of gestation is more or less than 20 weeks, has a body mass of at least 400 grams.

(2) For the purposes of an applicable offence:
(a) an unborn child is taken to be a living person despite any rule of law to the contrary, and
(b) grievous bodily harm to an unborn child is taken to include the destruction of the unborn child.

(3) For the purposes of an applicable offence, the destruction of the foetus of a pregnant woman (not being an unborn child) is taken to be grievous bodily harm to the woman, whether or not the woman suffers any other harm.

(4) This section does not apply to or in relation to:
(a) anything done in the course of a medical procedure, or
(b) anything done by, or with the consent of, the pregnant woman concerned.

The stated intent of the bill is to allow separate prosecution of injury to a fetus, following the death of Zoe Donegan (stillborn at 32 weeks gestation) in 2009 after Zoe’s mother Brodie was hit by a van driven by Justine Hampson. Hampson was convicted of grevious bodily harm with regards to Brodie, but not with injuring Zoe or causing Zoe’s death.

However, the bill has been introduced by an anti-abortion politician, and there are grave concerns about its potential interpretation, particularly “an unborn child is taken to be a living person”. Concerns about fetal personhood in general include:

• potentially allowing the prosecution of abortion (or, in NSW, where abortion is already criminalised, extending the circumstances in which it can be prosecuted)
• potentially allowing the prosecution of pregnant people who do not act in the best interest of the fetus (which could include activities with a risk of physical injury, self-harm attempts, drug use, dietary choices, failure to follow medical advice)
• potentially exposing pregnant people who have a late pregnancy loss to the additional trauma of a legalistic investigation as well as any medical one
• potentially compromising the pregnant person’s medical care when it is at odds with the best interests of the fetus (say, in cases where early delivery might be beneficial for the pregnant person)
• potentially coercing the pregnant person into medical intervention against their wishes, if judged in the interests of the fetus (eg coerced hospital births or coerced Caesareans)

The fourth clause appears to try and answer these objections, but given the source of the bill and the outcome of fetal personhood laws elsewhere, we should be very worried. In addition, the media reports concerns and objections from many groups including the Australian Medical Association NSW; the NSW Bar Association; the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (previous three mentioned in SMH: Another minister to battle foetus bill); Family Planning NSW; Women’s Health NSW; Domestic Violence NSW; Rape & Domestic Violence Services Australia; the National Foundation for Australian Women; Reproductive Choice Australia; and Children by Choice (previous seven mentioned in Guardian: Abortion rights under threat from ‘Zoe’s law’, say Australian women’s groups). Coalition MPs opposed include Health Minister Jillian Skinner; Environment Minister Robyn Parker; and Nationals whip John Williams (SMH).

Commentary includes:

Legislative arguments that incorporate words like ‘personhood’, ‘viability’ and ‘fetal rights’ are code for anti-choice sentiments that are always used as an attempt to limit the fundamental right for those born biologically female to control their reproductive choices, if not reverse them entirely.

Clementine Ford: The bill that could criminalise abortion in Australia

Spence has repeatedly argued that the exceptions provided in the Bill, concerning anything done in the course of a medical procedure or with the consent of the woman, guarantee that his amendment would not infringe upon a woman’s right to terminate a pregnancy. However, the exceptions do not meaningfully buffer against the overarching conceptual change represented by the Bill.

Moreover, it is outrageous that a woman’s legal right to terminate her pregnancy could be threatened by the law telling her that she is at risk of criminal liability until she can prove that she falls into a narrow exception. Zoe’s Law further pushes lawful termination of pregnancies to the fringes of legal debate, where it shamefully already lies as an exception to sections 82-84 of the NSW Crimes Act[…]

The Bar Association also argues that there are “legitimate concerns” about the broader implications of the bill. Once we adopt a definition of a foetus as a living person for the purpose of this bill, “it would be difficult to resist its adoption in respect of other New South Wales criminal laws”

Mehreen Faruqi: Why Zoe’s Law Must be Defeated

Coalition and ALP MPs have been granted a conscience vote on Zoe’s Law, so if you are a NSW voter, today is a great day to contact your MP expressing your concerns and encouraging them to vote against the bill. One way to do this is through the Our Bodies Our Choices email form.

Note: when I was discussing this post with other Hoyden authors, they wanted to discuss fetal personhood in Western Australia, and extended recognition of stillbirths in South Australia. Since the vote on the bill is pending, I wanted to get this post up, but feel free to discuss fetal personhood and potential threats to pregnant people’s bodily autonomy in any Australian state in comments.