04 March 2008
Joe Napolitano Room, fourth floor, Union House.

Wendy Larkin

Wendy is a lecturer in the law school at the University of Melbourne. She is currently teaching a new subject called Reproductive Rights and the Law (?) -- also Women, Violence and the Law.

  • In terms of liability, it is the one who procures the abortion who is liable. So if the woman procures it, she is liable, however if she employs someone else, the liability falls on them.
  • The criminal act states that it is illegal to UNLAWFULLY procure a miscarriage.
  • This is with or without child. It is the intent which matters. For example, if one were to prescribe a morning after pill, no-matter whether they were pregnant or not, there would still be INTENT to procure a miscarriage.
  • The exception is if procuring a miscarriage is necessary to save a mother's life.

Menhennitt ruling:

Vic 1969 Davidson-set standard for `lawful abortion'.
bq. Lawful to procure miscarriage if the person carrying it out reasonably believes there is a serious bq. threat to the woman's health (mental or physical health)
bq. This law does not recognise the standard dangers surrounding pregnancy and childbirth. They bq. must be serious dangers on top of that.

  • The criminal law around this matter as it stands is about the same as it was 150 yrs ago
  • There have been no prosecutions recently
  • As the law stands, it does not consider social and economic dangers as reason enough to have an abortion.
  • No case law since the mid 70's
  • Jurisdiction is different in each state as is the form of the law itself
  • Western Australia's crimes act is codified while most other states have common law which is case based law which the statute overrides.
  • Judges in code states rely solely on standard principles of legal interpretation and cannot draw on precedent.
  • There is a distinction between abortion and child destruction in section 10. They are separate criminal offenses but they overlap in relation to abortion.
  • Debate on whether there should be a distinction between early and late pregnancy/cut off point.
  • Should be a woman's right at the discretion of a medical practitioner.
  • The current law is out of step with womens' health needs and medical practises
  • The legislation is not representative of the current situation
  • Women should not have to fit certain boxes and descriptions to be eligible for an abortion.
  • Abortion should be regulated like other medical services, by the health act
  • Once there is more legal pressure on states, there will be more responsibility to provide better services for women which are affordable, accessible and non-denominational.
  • Women in rural areas have limited access to appropriate services
  • There is still much work to be done around honesty of advertising.
  • The health act does not have any stipulation around a medical practitioner performing the abortion with appropriate facilities, experience and care.
  • Decriminalisation means more services will become affordable and accessible-all part of the package ().
  • From a perspective of criminal law, it is not appropriate to use this to enforce private moralities. No woman will be forced to have an abortion, it will be an option for those who want to pursue it. This is an argument in relation to anti-choicers.
  • Australia has a "global gag rule” -- i.e, policy is that foreign aid comes with the condition that it cannot be used for an abortion, cannot be given to a service that provides abortions (even if they do this with money from a different source), cannot be given to a clinic that refers for or even mentions abortions. This was part of a deal between the former (!!) Howard government and independent conservative senator Brian Harradine in exchange for his support for the full sale of Telstra.

Shanelle ? and Trisha Hayes

Shanelle ? and Trisha work with the pregnancy advisory service at the Womens'
Their advice is based on womens' experience in relation to terminations.
They work within a small department with only three women each day and a manager.
They are the first point of contact for women with unplanned/unwanted pregnancies.

  • Aprox 9000 women contact their service each year, for this amount they are well understaffed
  • They run mainly a phone service
  • They talk about the woman's situation, her safety, who knows about her situation, who she can talk to, if she has support, what conditions she lives in.
  • They are outwardly pro-choice
  • Of the 9000, 3000 terminations are accessed each year on social grounds
  • Medicare only covers a small amount, not nearly enough of costs.
  • 50% of women who call the service are on youth allowance or some form of centrelink payment
  • The demand exceeds what they can provide
  • The cost of an abortion ranges from $300 to in the thousands depending on the nature of the pregnancy and the gestation.
  • Many women who call are extremely distressed and upset. Many are exposed to stigma and shame.
  • Women can be in abusive, coercive relationships where they can not request contraception, therefore have no power over their own reproductive rights.
  • Appointments are prioritised to women who are disadvantaged, come from a non-English speaking background, have alcohol or drug abuse problems, or are homeless.
  • Trish and Chanel have put in a submission to the law reform commission. Here are some of the things they included in their submission:
    Before the Menhennitt ruling, there used to be many backyard abortions in desperation.
    Women would come to the hospitals, dying of things like septicaemia and gangrene.
    Backyard abortionists would dump their patients at the hospital.
    Eg. In the 1950's a 15 yr old who had tried to perform an abortion on herself using an umbrella rib, came in very sick with septicaemia, and had to have a hysterectomy.
    In 1972 after the Menhennitt Ruling, admissions to the hospital of self-inflicted/backyard abortions declined.
    Before the ruling, 30 curettes were performed a day on failed abortions, which dropped to 8 a day after the ruling.
    Early research in to why women wanted to end their pregnancies found poverty, and family planning (too many children) which are still the main reasons today.
    Common reasons for unwanted/unplanned pregnancies are: failed contraception, lack of knowledge, lack of education resources and lack of domestic control.
    For a long time, women have known to come to the Womens' if they are in need of abortion.
  • Small discussion on current political climate.
  • In July last year, Candy Broad put in a submission to try and remove abortion from the crimes act but as usual it was withdrawn after pressure from Brumby to have the Victorian Law Reform Commission investigate reforms and current law. This is to clarify how the law works.
  • Current practises need to be modernised and clarified, and reflect current practises and community standards.

The submission from the Womens' includes: – Removing the ambiguity because the current law is as `clear as mud' in terms of what women can access – Make abortion and reproductive rights a women's health issue not a crime – Women should have access to their own rights and health – Provide framework for quality health care – Not too prescriptive – 1 in 3 women will be faced with an unplanned pregnancy in Australia – Supported by legal and health systems for full rights

  • Reform is timely-law has been reformed in other countries decades ago eg. The UK in the 70's
  • Aus is archaic in our laws
  • Part of mechanism in improving health care
  • The current hotline offered by the government as a reaction to last year is a hotline run by centre care by catholic women. They will not offer abortion as an option.
  • The service has been known to actively talk women out of having an abortion and leaves women anxious
  • There should be a non-judgmental option, fully funded by the government.
  • The manor of the hotline makes women aggravated and stressed about their situation so that if they finally go to the women's, they have an even harder time coming to terms with their situation.
  • The contract was awarded to a group who then contracted out to religious organisations.
  • There should be an effective procedure in terms of abortion-in South Australia, there is a requirement for two doctors to sign off for a woman to have an abortion. This is time-wasting and causes delays so the gestation period is longer which can create problems.
  • Many women want to draw on their own resources to make decisions. Counselling should be provided but not compulsory.
  • RU486- Medical as opposed to surgical. At the moment it is not being advocated in preference to the procedure because of the political climate. There are no drug companies in Australia currently producing the drug.
  • There should not be a limit stated in the law in terms of abortion, it should be case by case
  • In WA there is a limit of 20 weeks and then it goes to a tribunal (wonderful hey).
  • This is in compromise with the anti choicers.
  • Abortions after 20 weeks are very rare and usually because of foetal abnormalities or extreme social circumstances.
  • The bulk of abortions happen under 12 weeks.
  • If there is a limit placed, women will be more inclined to carry out the procedure unsafely. These women are often from a disadvantaged background with no access to facilities and information.
    Eg-a woman in an outer suburb Christian school did not want to access her counsellor because of the religious background.
  • Social factors such as income, class, culture.
  • There is sometimes more protection for a child in gestation than there is for one of the same age which has been born prematurely.
  • In Victoria, there should be no cut off point.
  • At The Women's, there is an informal cut off point of 18 weeks for social reasons. After that they are referred to a particular clinic.
  • ACTION- Support YWCA campaign
  • Radical women forum next week.

Third speaker — Debbie Brennan from Melbourne Radical Women.

Radical Women are a socialist feminist organisation that does a lot of pro-choice activism, particularly clinic defence. They are associated with the Campaign for Women's Reproductive Rights.

  • Conjures up images of Vera Drake and the Old Melbourne Gaol
  • Criminal legislation comes down heavy
  • We need compassionate women helping women not and overstatement of the law
  • Crimes law is barbaric
  • The current law is based on one from 1862.
  • There are limits
  • The gatekeeper is the doctor
  • Precarious situation-crimes act
  • The Menhennitt ruling provides no security for the woman or the doctor
  • Anyone can pull the law off the shelf at any time
  • It is 39 yrs after this ruling and we are still living under the same law despite all that has changed
  • No state government has done anything to change/improve the situation until now
  • Caroline Hirsch and Candy Broad have both made an effort to put the cards on the table but from pressure by Bracks and Brumby, have withdrawn.
  • We are dealing with a bizarre situation where religion has more power over the law than the majority of Australian opinion
  • Capitalist system- women have to play a role in society
  • Baby machines, nannies and lifelong nurturers
  • All of this for free-who benefits? The minority who dictate the situation.
  • Therefore a myth has to be perpetuated.
  • Turning a foetus in to a person with more rights than the woman
  • Social thinking not just laws
  • Women with plans, education to pursue, occupations, jobs, does not count, foetus rights supersede those of the woman
  • Misogynist behaviour. Foot soldiers of a bigger game. Twisting of reality
  • Sat of each month-anti choice protest. They are a minority-but the 80% of us who believe in a woman's right to choose are unheard.
  • Women can't rely on the system, the system has failed us.
  • Menhennitt Ruling came out of feminism and coalitions on the street.
  • The right wing are very well organised with bankrolls, supporting businesses and resources.
  • We have to organise bigger and better than them.
  • With the reform and the report, we don't know what the outcome will be. What is clarity? What will the recommendations be? Whatever they are, it should be based around a women's right to choose
  • Ideas for action include: petitions, discussions, physical presence.
  • There should be free abortions available at all levels of pregnancy
  • There should be a removal of the child destruction clause
  • Unconditional recognition of women to make their own reproductive choices.
  • We need to be ready to hit the streets
  • This law is not just about abortion, it is about many other silent battles and battles with a voice- free 24 hr childcare, paid maternity leave, equal pay, economic independence are all needed to bring genuine reproductive choices.
  • Relates to stolen generation -- the right to keep your children is also a reproductive right
  • We need a multi-issue perspective, to link up movements around issues which affect the whole working class because the same system can not deliver.

New Pro-Choice website. Check it out:
http://prochoicevic.org.au/

Bookmark and Share Bookmark & Share. Posted Monday 17 March, 2008. Updated Thursday 10 April, 2008.