Women with the law on their side

Abortion in Victoria is still a crime but that situation is about to change.

VICTORIA moved this week to legalise abortion, a development that frankly surprised many people. Isn't abortion legal, and hasn't it been for years? As it happens, no. In Australia's three most populous states -- Victoria, NSW and Queensland -- abortion is a crime. That is to say, it is part of the Crimes Act, and has been for more than 150 years.

Women in all states and the Northern Territory can get a legal abortion, but only if a doctor agrees that the woman will come to some kind of ill-defined physical, social or mental harm if she continues with the pregnancy. Only in the ACT is abortion available on demand. That is, to any woman who wants one, pretty much on request.

That, at least, is the law.

Now the practice: there are about 83,000 abortions a year in Australia and many are subsidised by Medicare. It is claimed that one in three Australian women will have an abortion in their lifetime (figures are ill-defined, since data is rarely kept).

The move to legalise abortion in Victoria came shortly after John Brumby became premier. He asked the Victorian Law Reform Commission for advice on how to "modernise" abortion law, saying he did not think women should have to fear the law when making an already difficult decision.

The commission in March put forward models A, B and C.

Model A was modest reform. Abortion would be removed from the Crimes Act, but women would still have to say - that is, often to pretend - that they may come to some type of harm if they continued their pregnancy, and a doctor would have to agree.

Model C was the most radical: abortion on demand, at any stage of a pregnancy, for any reason at all.

Model B strikes middle ground. It allows for abortion on demand up to 24 weeks gestation. Beyond that, abortion may still be legal, provided two medical practitioners sign off on it. In adopting Model B, the Victorian Government aims to make legal a commonplace procedure.

Writer Gideon Haigh, whose elegant history of that law, The Racket will next week be published by Melbourne University Press, says "women who want an abortion have always been able to get one".

He recounts the years between Victorian settlement and World War II, when abortion was mainly self-administered, with a sharp instrument the method of choice: the skewer, the knitting needle, the hat pin. Then, too, there were potions, purgatives, enemas, emetics, and uterine douches, or perhaps the disinfectant, Lysol, squirted into the cervix.

Death was possible. Haigh says of the more than 3000 women admitted to one Melbourne hospital between 1933 and 1934, 22 per cent were infected and not quite 2 per cent died (50 women).

By the late 1940s, abortion was changing. Penicillin made it simpler and cheaper but no more legal than it had previously been. Haigh says, "the chief beneficiaries of the illegality of abortion" were sub-standard doctors and corrupt police.

Haigh argues that the illegality of a service that is bound to be sought anyway usually means super profits for providers. He describes some of Melbourne's most famous, and flamboyant abortionists, all of whom worked outside the law: Lewis Phillips, "an indolent man devoted to music and the punt (who) operated with a lit cigarette at his lips singing snatches of Gilbert and Sullivan"; William Fenton Bowen in Lonsdale Street, who aborted women across the road from the Supreme Court and next door to the Australian Broadcasting Commission; and Charlie Wyatt, who wore pork-pie hats and carried abortion instruments in the back of a Holden. Most paid kickbacks to GPs, and to corrupt police.

"Those providing abortion had a vested interest in it remaining illegal," Haigh writes. "Legality ... endangered the racket."

Change came with R v Davidson, or the case against Melbourne doctor Charles Davidson, before Supreme Court justice Cliff Menhennitt, who in May 1969 ruled that abortion could be lawful when there is a danger to the woman in continuing the pregnancy.

Over time, the danger has been extended to cover not only her physical and mental wellbeing but her social and economic wellbeing. In other words, provided a woman can get a doctor to say that she needs an abortion, she can get one.

Still, abortion remains illegal and abortionists can be charged with a crime. It happened in NSW as recently as 2006, when Suman Sood was convicted of procuring an illegal abortion after giving an abortion drug to a woman who was 23 weeks pregnant.

In Victoria, too, there was a harrowing case in 2000 of a woman aborted at 32 weeks gestation of a fetus afflicted with dwarfism. That case came before three courts, including investigations by the hospital, a coroner, the police and a medical board. (No doctor was found guilty of wrongdoing.)

In other words, the risk for abortionists and the women they abort is there, as is the risk that Menhennitt's ruling might be appealed.

The Victorian Government believes its new legislation will provide law that it is "clear, widely understood, and reflective of current community standards".

Haigh says: "From a practical standpoint, I don't think it will have a huge effect. In fact, the general attitude of people to the resurfacing of debate about abortion is: 'Oh, abortion? Didn't they fix that years ago?'

"What they actually did, in a kind of very Australian way, was jury-rig a solution that seemed to reflect a majority view while also reflecting a residual ambivalence."

Debate on the law is due to begin on September 9 and it is expected to be passionate. Brumby has said he will allow a conscience vote, and at least one MP has already rejected the bill.

Labor backbencher Christine Campbell says the proposed law "is a gift to the abortion industry". Campbell started doing pregnancy counselling 20 years ago and says: "I was conscious then mostly of the unborn child, but after 20 years' experience, having talked to many women who've had abortions decades ago, the more significant issue is the effect on women.

"Just as it's cruel to pretend that stillbirth and adoption didn't change a woman, the motherhood is as real, for those who've had abortions." Campbell wants "the offer of counselling to be compulsory, and it should be independent counselling, not counselling that pushes women towards abortion".

She is at odds with others in her party, but says: "I think there are a lot of women in the Labor Party who have personally had abortions and don't want to feel they are criminals.

"And I don't want to make them feel like criminals. I want them to be able to acknowledge that abortion is not a clump of cells."

Colleen Hartland is a Victorian Greens MP who 30 years ago had an abortion when she found she was pregnant to her then-boyfriend. Hartland says abortion is "the final taboo, the thing we don't talk about, and I think the damage comes from the guilt".

"I don't regret for one second what I did. The damage is done by other people who want to make it a massive secret, and make it a crime.

"My family weren't aware ... My mother ... I could never have told her."

Hartland is lobbying for Option C, abortion on demand. "We don't think there should be a cut-off point," she says.

"There's a tiny number (of late-term abortions): 21 done in Victoria last year, and 300 done post-20 weeks. These are very much wanted pregnancies that go hideously wrong. The testing isn't done until 20 weeks, so there can't be that cut off."

Also close to the debate is Lachlan de Crespigny, who injected the potassium chloride into the heart of the 32-week-old fetus with dwarfism in 2000.

He did so believing the mother was suicidal, and that he was therefore saving her life. In his submission to the Victorian Law Reform Commission, he says: "Safe legal abortion is essential. Parliament should not legislate on issues of private morality. It is for women to make their personal decisions according to their conscience.

"Doctors need no longer fear that they will unexpectedly be subject to investigations, adverse press and possible criminal charges."

It isn't yet clear why the commission settled on 24 weeks as a cut-off point, when a fetus can be viable at 20, or certainly 23 weeks. Premature babies born at 24 weeks regularly survive, and thrive.

It may be because testing for serious abnormalities, those that are incompatible with life, normally does not take place until the 20th week of pregnancy, but this is the part of the new legislation that is most likely to be amended when debate begins.

Socialist Judy McVey, who is organising a nationwide rally for September 9, says age of the fetus should be irrelevant. She supports abortion at any stage of a pregnancy, for any reason, regardless of whether a fetus is viable.

"We want the Government to vote for Model C so women have complete control," McVey says. "It is up to a woman whether she wants to have a baby or not.

"Abortions that are late are only done in the most extreme circumstances, but it really doesn't matter if it (the fetus) can survive or not.

"You have to start with the premise that it's a woman's right to decide. If a woman doesn't have that right, she will abort anyway."

The Anglican Church, normally silent on abortion, asked eight women in a "think tank" to prepare an opinion on the new law. It said: "We believe abortion is a serious moral issue, but we do not believe abortion should remain a matter for criminal law."

Pro-life campaigner Bill Muehlenberg took the alternative view, saying "reading the report leaves the clear impression that this could have been penned directly by the abortion industry itself. It reads like a pro-death wish list".

Louise Keogh of the Key Centre for Women's Health in Society at the University of Melbourne said the legal prohibition on abortion "has been a real impediment to debate, and to best practice".

"It's given a lot of air space to the anti-choice brigade. They are dealing with something that is illegal so they can get upset and angry about it.

"These changes will pave the way for some sensible debate. Once abortion is legal, we will be able to say: OK, how can we improve it?

"We will be able to collect data. Who has abortions? Why do they have them?

"The service will improve. It's a grey area in the law, so doctors aren't attracted to it. I can understand why a doctor would not want to get into it, so we may not have best practice."

As for Hartland, she recovered from her abortion, and went on to marry her boyfriend. They never did have children.