Australian Journal of Political Science, Vol. 32, No. 1, pp.

93 110

Is Abortion Illegal? *
H ELEN P RINGLE
University of New South Wales

W hile waiting to see a doctor recently, I read an article on abortion in an old copy of Cleo. The article was published som e time after the 1994 trial of CES v. Superclinics Australia. 1 This case involved a civil action by a woman against doctors who had initially failed to diagnose her pregnancy and who had then failed to comm unicate to her the correct diagnosis a pregnancy for which she said she would have sought an abortion had she known at that time. Justice Newman in the NSW Supreme Court ruled that the woman could not recover damages for a missed opportunity to perform what he said, on the available evidence, would have been an illegal act. Justice Newman was m uch criticised in the press for his (alleged) contention that abortion is illegal, and renewed calls were made for the rem oval of references to abortion from the crim inal law. The Cleo article mentioned this case, and went on to note that most of the estimated 80,000 abortions performed in Australia each year are ` technically illegal (Os eld 1995, p. 125). I do not want to claim that we should take Cleo as an authoritative source on what is the law in NSW or in Australia. But of course, thousands of young women (and m en) who read it will do just that. 2 Nor do I want to condescend to those readers. However, it is important to be clear, especially at this level of popular perception, about just what is the legal position on abortion. There are after all some areas of politics and the law where a m isunderstanding or error presented by Cleo m ight not matter m uch at all to the lives of its readers. But perhaps one out of three female readers of Cleo will at some point in their lives have at least one of these ` technically illegal abortions,3 and probably all of its fem ale as well as its male readers will be asked for their advice and counsel by a friend, sister, mother, partner etc. considering an abortion. Although the legal status of abortion does not exhaust the range of advice one might give or expect to receive in the m aking of
* I would like to thank for their help in various ways Alison Foreman, Lang Goodsell, Anne Marie King, Larry King, Georgina Napier and Kevin O Rourke. An earlier version was presented to the StaffStudent Seminar of the School of Political Science at the University of New South W ales on 30 April 1996. Since the original subm ission of the paper, I have revised and updated it to take account of new developments and publications in the area. 1 CES v. Superclinics Australia, unreported, Supreme Court of NSW , 18 April 1994, Newm an J. The appeal against the decision was upheld by the Court of Appeal: see CES v. Superclinics (Australia) Pty Ltd (1995) 38 NSW LR 47. For ease of reference, I shall refer to these cases as CES {1} and CES {2} respectively. The case was settled in October 1996. 2 According to the Audit Bureau of Circulations, Cleo s (paid) circulation gures for the six months ending 31 December 1995 were 290,471 (down 11.5%): see Sydney Morning Herald 1996 (` Cleo editor resigns after 7 m onths ). 3 See Sweet 1996, citing a study published in the Australian and New Zealand Journal of Public Health, and also Gutkin (1996), citing a report of the UN Population Fund on global gures. I have seen other estimates that one in two Australian women will have an abortion at some point in their life, but I am unable to evaluate their reliability. 1036-1146/97/010093-18 $7.00

1997 Australasian Political Studies Association

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such a decision, it is surely a m ost important consideration in constructing the context of such decisions. It is also the case that the view expressed in Cleo is one that is widely shared and presented both by journalists in other m ass media and by academics (respective examples are Rothwell 1996 and Richters 1996). M oreover, it is crucial that doctors, GPs and specialists both, who are consulted by women considering abortion have a clear understanding of this legal context (see Law 199495 for discussion of the character of doctors obligations of advice and referral). Indeed, in the CES case, the defence of the doctors rested in part on the position that abortion is illegal.4 Self-serving as such a position m ight have been, it is unlikely that one could even contemplate raising such a defence unless there were some uncertainty about precisely what is the law on abortion. M y aim in this article is very limited: to explore whether abortion is illegal in Australia. I am not concerned here with assessing the moral or other merits of the existing legal and political position on abortion, although I do not in any way deny the importance of such an assessment. Brie y, my argument is that abortion as such is not illegal in NSW , as also in other states, m ost notably and perhaps surprisingly in Queensland. Further, my argument is that abortion as such is not ` technically illegal either. (In its more general usage, m oreover, the notion of ` technical illegality seems to m e to lack any precise m eaning at all.) As I shall set out, what room for legitimate controversy that exists as to its legality only concerns how wide the ` right to abortion is, not whether there is such a thing at all. (I am using ` right here in the sense of legal right, not in the broader m ore philosophical sense.) And I shall argue that that ` right is very wide indeed, and that it is almost certainly much wider than it would be if abortion were to be ` legalised through the parliamentary process, in relation to which I shall use the examples of South Australia and the Northern Territory, where abortion has been so ` legalised and clari ed by statute.5 In this context, I also want to dispel the idea that Justice Newman s decision amounted to a rede nition of the scope of legal abortion (even leaving aside the success of the appeal against his judgment). I indicate that Justice Newman made no such claim as to say that abortion is illegal. Moreover, it is hard to see how such a claim could anyway be tested in or founded on this speci c case, because the circumstances of the case are quite peculiar in relation to the legality or otherwise of abortion. This peculiarity was also noted, in different ways, when the decision was appealed in the NSW Court of Appeal. Although I argue that abortion as such is not illegal in Australia, obviously this does not m ean that it is readily available in all regions. The problem of ready availability and access is a different question from the legality of abortion, and falls outside the scope of my argument here. However, what I say does have some
4

There is some ambiguity on this point, however. Justice Newm an noted that the defendant doctors only raised the question of the illegality of any proposed termination on the second day of the trial, without speci cally pleading this defence (although he did not also note that the question was raised at his suggestion: see APFA 1996, p. 2). Because the alleged illegal act had not been performed, Justice Newm an determined that the defendants were not obliged so to plead under Supreme Court Rules. At appeal, Justice Kirby argued otherwise, but thought that no miscarriage of justice had resulted on this count (CES {2} per Kirby P, pp. 546). 5 Unlike Bob Carr, I think that there is an important distinction to be made between the notion of ` legalisation and that of ` decriminalisation .In my view, the former is more likely, for various reasons, to be the outcome of any change by parliament in abortion law.

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implications for this problem of access. At least in sm all part, the problem of availability of abortions is related to the question of the estimation of its legality by doctors (and others). 6 In that sense, a proper appreciation of the legal position, and its widespread understanding, may m ean greater access, for example, in non-m etropolitan areas. However, it may be that some aspects of the problem of access will remain intractable for similar reasons as the lack or scarcity of other medical services in country areas. The structure of m y argument is as follows. First, I set out the statutory provisions and judicial rulings that form the basis of the legal position on abortion in Australia. Secondly, I consider the legal weight of those rulings, that is, whether they constitute ` good law in the sense of being authoritative. I then explore whether there are any abortions that would be ` prima facie illegal. M y central example in this section is the CES case, concerning as it does the legality of a hypothetical abortion. I conclude with m ention of the m ost recent developments in the area, the High Court appeal in the CES case and the relevant provisions of the proposed Model Criminal Code, and their signi cance for the law and public policy on abortion. Throughout the article I have assum ed that to consider the question of the illegality of abortion is as m uch a political as a legal m atter, and that a proper resolution of that question has very important implications for those who practise and study the art of politics. Abortion: The Legal Landscape In the case of CES v. Superclinics, Justice Newman found that there had been a breach of duty by the doctors consulted by the woman, but did not award damages, on the basis that her loss concerned the opportunity to perform an illegal act (case law supports such a refusal of damages in some other circumstances on this principle, the example used by the High Court in the case of Gala v. Preston concerning a bank robbery). As I noted above, Justice Newman subsequently came in for criticism in the press and elsewhere on the basis either that he was not up to sniff on the law, or that he had revealed som ething that everyone already knew but that courts and legislators turn a blind eye to: that is, that abortion is still a crime, and that m ost if not all abortions that are perform ed are legally dodgy. In a number of preliminary ways, this criticism m isses the m ark. Justice Newm an in fact m ade no such claim that ` abortion was illegal in NSW . His argum ent concerned only this (unperformed) abortion. To be exact, his ruling concerned the claim on an opportunity to have this (unperformed) abortion. The contention of the defendants certainly seems to have been wider, their position as phrased by Justice Newman being that the woman s claim was for the loss of an opportunity to perform an illegal act, on the basis that abortion in NSW is still a criminal offence (CES {1}, 5). But Justice Newman himself did not endorse this contention. 7
6

A report coordinated by Lyndall Ryan, based on interviews with 100 women who had sought abortions in South Australia, Queensland and Tasmania since 1985, found that some women were discouraged from having, or were denied, abortions because of doctors confusion about its legality. This seems to be particularly so in Tasmania, where 40% of Tasmanian women having abortions travel to the mainland (Ryan et al. 1994, pp. 245). Note that I have used this report with caution given the extremely limited sample on which its conclusions are based. 7 Cf. ` Judgmentmay be very dangerous ,Sydney Morning Herald, 19 April 1994, in which David Fraser is quoted as saying that `it seems by implication that { Newman} is saying that all abortions are illegal .

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Of course that is not necessarily the end of the matter, because Justice Newm an s decision m ight be taken to have implications for the law on abortion more generally. In fact, the potential for the drawing of such implications is limited, even leaving aside the incomm ensurability in various aspects of civil and criminal law, because the case itself is rather peculiar. Before turning to look at this peculiarity, I shall brie y survey the state of the law on abortion preceding Justice Newm an s ruling. I claim no originality in identifying relevant statutes and cases, and in doing this I have been m uch helped by reading Cica (1991), although I differ from her in various points of interpretation and in her analysis of the weaknesses of abortion law. In NSW , the relevant statutory provisions are in ss. 8284 of the Crimes Act 1900. These provisions are as follows, set out under the rubric ` Attempts to procure abortion :
82. W hosoever, being a woman with child, unlawfully adm inisters to herself any drug or noxious thing; or unlawfully uses any instrument or other m eans, with intent in any such case to procure her miscarriage, shall be liable to penal servitude for ten years. 83. W hosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing; or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to penal servitude for ten years. 84. W hosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the m iscarriage of any woman, whether with child or not, shall be liable to penal servitude for ve years.

Similarly worded provisions form part of the crim inal law in every Australian state and territory. 8 Such provisions correspond to ss. 58 and 59 of the UK Offences against the Person Act 1861, on which they were modelled. A few things are imm ediately clear from these provisions. First, no rationale (such as, say, reference to the rights, interests or life of the foetus, or to the privacy of the woman) is given for such provisions. Secondly, in none of these provisions is there any suggestion that the procurement of a m iscarriage is homicide. And perhaps m ost importantly for my argument here, abortion per se is not a crim e. This is so in the obvious sense that only unlawfully performed actions are identi ed as punishable. That is, the very inclusion of the word ` unlawfully would suggest, and has been taken by courts to m ean, that actions to procure a m iscarriage can be
Footnote continued

Also see the report of the CES appeal in J. Scott (1995), in which she says that Justice Newm an had dismissed the woman s claim ` because abortion was still a criminal offence in NSW . The only place in which words similar to those quoted appear in Justice Newm an s judgment is where he sets out the position of the defendant doctors (` Central to the contentions of the defendants is that abortion in New South Wales is still a criminal offence. ). 8 See Crimes Act 1958 {Victoria}, ss. 65, 66; Criminal Code Act 1924 {Tasmania}, ss. 134, 135; Criminal Code {WA}, ss. 199, 200, 201; Criminal Code Act 1899 {QLD}, ss. 224, 225, 226; Crimes Act 1900 {ACT}, ss. 42, 43, 44; Criminal Law Consolidation Act 1935 {SA}, ss. 81, 82; Criminal Code {NT}, ss. 172, 173. Section 165 (` Causing death of child before birth ) of the Tasmanian Criminal Code also arguably applies to the procurement of abortion.

IS ABORTION ILLEGAL?

97

undertaken lawfully, and that not every attempt to perform an abortion is criminal (see Exshaw 1959 for discussion of this point). Less obviously, what quali es as crim inal is not the abortion itself, but actions unlawfully undertaken with the intent of procuring a m iscarriage. That is, these provisions do not serve to enable us to categorise a completed abortion as lawful or unlawful, but rather to categorise the actions of one who procures a miscarriage as lawfully or unlawfully done. Strictly speaking, for example, it does not really make sense to say ` I had a legal abortion (or ` I had an illegal abortion ). In such terms, however, it does make sense to say, ` The doctor acted lawfully (or unlawfully) in perform ing an abortion on m e . I realise that this may sound like a (very) pedantic distinction, and it is true that most people would understand what I m ean if I say, in everyday speech, ` I had a legal abortion . For most purposes at any rate, the distinction is of little importance. However, as I shall note later, the distinction is one that is crucial in the proper legal resolution of the CES case. Hence if not all persons who procure miscarriages are guilty of unlawful actions, criminal sanctions will hinge on what is de ned as unlawful. The statutory provisions to which I have just referred offer little or no help in de ning the quality of lawfulness in the context of abortions. There are three other areas that do have a bearing on this de nition. The rst of these areas com prises other statutory provisions in the criminal law of Tasmania, W estern Australia and Queensland, provisions of a general kind ensuring the ` reasonableness of surgical operations. 9 In W estern Australia and Queensland, these provisions make speci c m ention of surgical operations ` upon an unborn child for the preservation of the mother s life . For example, s. 282 of Queensland s criminal code, under the heading of ` Surgical operations , reads as follows:
A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient s bene t, or upon an unborn child for the preservation of the mother s life, if the performance of the operation is reasonable, having regard to the patient s state at the time and to all circumstances of the case.

Such statutory provisions may provide a defence to charges of unlawful actions in the procurem ent of miscarriage, and/or provide elucidation of what ` lawfully involves. Note that the provision does seem quite restrictive (being limited to ` the preservation of the mother s life ), and som e m ight compare it to the Texas state laws ruled unconstitutional in the US Suprem e Court decision of Roe v. Wade. 10 In fact, this comparison is not m erited, partly because s. 282 does not specify ` only for the preservation of the m other s life (as in other formulations such as that of
9

Criminal Code Act 1924 {Tasmania}, s. 51; Criminal Code {W A}, s. 259; Criminal Code Act 1899 {QLD}, s. 282. 10 The Texas criminal statutes ruled unconstitutional in 1973 are set out in Roe v. Wade 410 US 113, 117118 fn 1 (1973). Roe v. Wade is the case on which American public policy in relation to abortion rests, although its width has been much eroded by the Rehnquist court. The right to an abortion in Roe is usually said to be founded on a right of privacy implicit in the due process clause of the 14th Amendment. However, there is some ambiguity as to the exact location of the right of privacy in the Constitution in regard to abortion, with Roe s supporters often as much perplexed in this regard as its detractors. For example, Tribe (1973, p. 7), notes, ` One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found .

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the Northern Territory noted below), and while this may seem like (yet more) nitpicking, it is in fact not so in practical terms. Moreover, what ` preservation of the mother s life involves has not been interpreted narrowly in the courts, at least since the 1939 English case of R v. Bourne, which courts in Australia have followed.11 The second area with a bearing on the meaning of ` unlawful in terms of abortion comprises statutory provisions with speci c reference to the circum stances under which abortions may be performed. W here abortion has been ` legalised in South Australia and the Northern Territory, distinctive statutory provisions relating to the medical termination of pregnancy, which are absent from other criminal codes, give m ore detailed m eaning to the conception of lawfulness.12 To be lawfully perform ed, the medical termination of pregnancy in these two jurisdictions must be based on the opinion formed in good faith of two doctors that the continuance of the pregnancy poses greater risk to the woman s life or greater risk of injury to her physical or m ental health than if the pregnancy were terminated, 13 or that there is ` a substantial risk that, if born, the child would ` suffer from such physical or m ental abnorm alities as to be seriously handicapped .14 In the Northern Territory, further, more restrictive conditions apply to terminations between 14 and 23 weeks, that is, the requirement of the opinion in good faith that it is ` imm ediately necessary to prevent grave injury to her physical or mental health or that it is ` for the purpose only of preserving her life . In South Australia, there is a time limit of 28 weeks for abortions otherwise than to preserve the life of the mother. Abortions in South Australia must take place in prescribed locations to be lawful (in a similar way, the ACT Termination of Pregnancy Act 1978 required that registered m edical practitioners carry out pregnancy terminations at Board of Health hospitals). Som e other conditions also apply in South Australia, notably residence requirements. It seems that where abortion has been ` legalised by statute (in South Australia, as part of the liberal Dunstan reform s), both legal and de facto access are more restricted than in other states. The third area relevant to the de nition of lawfulness is case law. The speci c criteria of lawfulness in most Australian states are set down not by statute but by case law. The m eaning of ` unlawfully in this area was elaborated in 1969 by Judge Menhennitt in R v. Davidson, a case in which Davidson, a doctor, faced criminal charges in connection with procuring the miscarriage of a woman. 15 In a statement
11 12

R v. Bourne {1939} 1 KB 687, which I discuss further below. See Criminal Law Consolidation Act 1935 {SA}, s. 82A; Criminal Code {NT}, s. 174. The wording of these provisions is modelled on the UK Abortion Act 1967. 13 Note that it is not legally speci ed that the woman must give consent to the termination, or hold a similar opinion to the doctors. In the English case T v. T {1988} 1 All ER 613, the court approved an abortion (and sterilisation) of a young intellectually disabled woman without her consent, with reference to the provisions of the Abortion Act 1967 concerning a doctor sbelief of the danger posed by a pregnancy. Some cautionary tales on the use of m edical discretion in reproductive matters, especially against the disabled and the poor, are presented in Gallagher (1985). 14 Martha Field has argued, with reference to the American context, that the of cial speci cation of risk of handicap as legitimate reason for abortion in such terms amounts to unlawful discrimination (Field 1993, esp. pp. 120, 123). In the case of Veivers v. Connolly {1995} 2 QdR 326 in the Queensland Supreme Court, Justice de Jersey appeared to recognise characteristics of the foetus (in this case, rubella embryopathy) as clear evidence of danger to the woman s mental health. For contrasting views of the signi cance of this judgment in respect to treatment of the handicapped, see Fitzgerald (1995) and Crowley-Smith (1995). 15 R v. Davidson {1969} VR 667.

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of law during the trial, Judge M enhennitt explained the meaning of lawfulness in terms of the principle of necessity, a principle embracing the two elements of necessity and proportion. Judge Menhennitt ruled that lawfulness involved the following conditions:
the accused must have honestly believed on reasonable grounds that the act done by him was (a) necessary to preserve the woman from a serious danger to her life or her physical or m ental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; and (b) in the circum stances not out of proportion to the danger to be averted. (R v. Davidson, p. 672)

Judge M enhennitt carefully emphasised that belief as to serious danger to the woman s life was too restrictive a ground on which to decide lawfulness (ibid., p. 671). (The accused was subsequently found not guilty on all counts.) In his ruling, Judge Menhennitt drew on the 1939 English case of R v. Bourne, which concerned the prosecution of an (eminent) surgeon who performed an abortion on a young woman who had been the target of a ferocious rape. In that case, Justice Macnaghten gave what he considered a ` reasonable interpretation of the meaning of preserving the life of the mother in these terms: if ` the probable consequence of the continuance of the pregnancy will be to make the wom an a physical or m ental wreck, the jury are quite entitled to take the view that the doctor who, under those circum stances and in that honest belief, operates, is operating for the purpose of preserving the life of the m other (R v. Bourne, p. 694). As I noted above, ` preserving the life of the m other has, on the basis of this precedent, been interpreted in a broad sense. Justice M acnaghten noted that it was not always easy, or even necessary, to draw a line between health and life as being endangered, and moreover noted that it was not necessary to wait until the woman s death was imminent before action became lawful on the criteria given. I should note, however, that Justice Macnaghten did not explicitly base his position on the principle of necessity. In 1971, Judge Levine in the NSW District Court in turn followed the precedent of Davidson in R v. Wald, a case again involving criminal prosecution of doctors for performing abortions. 16 Judge Levine stressed that the reasonableness of a doctor s belief as to necessity is a m atter for a jury to decide,17 and phrased the test of lawfulness in these terms:
it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health.

Judge Levine added that the reasonable expectation of serious danger to m ental
16 17

R v. Wald (1971) 3 NSW DCR 25. Note that there is an assumption in the cases from Bourne on that to be lawfully performed, an abortion should be done by a quali ed medical practitioner. This assumption is made explicit in South Australian and Northern Territory legislation. It is assumed in the judgments of CES in the Court of Appeal: Justice Kirby for example describes the Wald test as ` a test addressed to the lawfulness of an abortion conducted by a legally quali ed medical practitioner (CES {2}, 53).

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health if the pregnancy continued was also relevant (R v. Wald, p. 29). 18 The distinctive contribution of Judge Levine to the clari cation of the legal position on abortion is generally held to be his addition of ` econom ic and ` social considerations into the form ula. The Davidson and Wald rulings are widely taken to form the basis of the understanding of lawfulness in regard to abortion where there is an absence of any more precise statutory directions. W hile a range of criticisms has been made of these rulings as the basis of abortion law (for example, Cica 1991, pp. 4568; and Tricker 1995), I shall con ne myself here to noting those criticisms that concern the legal status of those rulings. That is, I shall look at the widespread view that the rulings are not entirely ` good law, in the sense that their authority and stability are weak. A related argument is that judicial solutions have a fragility that makes them inferior to legislative and political solutions in the area of abortion (and perhaps m ore broadly). For example, Beatrice Faust claims that ` judge-m ade law is not a guarantee like statute law (Faust 1994, also Faust 1996). I cannot see that either type of solution has a prima facie strength or stability, in the sense of not being open at some point to being overruled or reformulated, although ` judge-made law does operate under at least som e constraint of stare decisis not generally suffered by the m akers of statute law.

Are the Judicial Rulings on Abortion ` Good Law? A central claim that has been made in assessing the authority of the Davidson and Wald rulings is that both are ` lowly decisions. For example, Natasha Cica in her comprehensive survey of Australian abortion law has drawn attention to what she sees as the quality of uncertainty in abortion law, noting that these decisions were made by single judges, that they lack appellate consideration, and that in general, the judgm ents ` lack weight as judicial precedent . But on the same page as she does this, Cica notes that one of the m ain reasons that criminal prosecutions of doctors perform ing abortions have largely ceased is rather the unlikelihood of success because the Davidson and Wald tests cast ` a very heavy burden of proof upon the prosecution (Cica 1991, p. 47). Graycar and M organ in their legal textbook also call the M enhennit (sic) and Levine rulings ` rather imsy since, they say, neither ` has been subjected to appellate scrutiny (Graycar & Morgan 1990, pp. 2001). Yet they go on in their next sentence to write, ` However, the judgments seem well established and have been effectively approved in other Australian decisions {K v. Minister for Youth and Community Services and R v. Bayliss & Cullen} (ibid., p. 201; see below for discussion of these cases). Perhaps the strongest rebuttal of this criticism, however, has come from what
18

Justice Kirby (CES {2}, 60) ampli ed these comments by noting, ` There seems to be no logical basis for limiting the honest and reasonable expectation of such a danger to the mother s psychological health to the period of the currency of the pregnancy alone it is illogical to exclude from consideration, as a relevant factor, the possibility that the patient s psychological state might be threatened after the birth of the child, for example, due to the very economic and social circumstances in which she will then probably nd herself . Justice Kirby here followed the approach of Justice de Jersey in Veivers v. Connolly, and thought that Justice Newm an had erred in not taking this consideration into account (Justice de Jersey, p. 329, had said that ` continuing with a pregnancy which would so likely result in the birth of a severely affected rubella baby, entailed a serious danger to the {woman s} mental health, albeit a danger which would not fully af ict her in a practical sense until after the birth ).

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may seem the unlikely source of Sir W illiam M cM ahon. In 1979, Stephen Lusher MP m oved a m otion in Federal Parliament to ban the payment of bene ts by Medibank (as it was then) for pregnancy terminations ` unless the termination was perform ed to protect the life of the mother from a physical pathological condition and that the life could be protected in no other way (Hansard, 21 M arch 1979, p. 963). In introducing his motion, Lusher noted the lowly status of the Davidson and Wald decisions and ourished a legal opinion that neither decision would be con rmed by a full superior court if challenged (ibid., p. 965; see also the docum ents tabled by F. E. Stewart MP, pp. 9736). M cMahon, the then member for Lowe, voted against the Lusher motion, but took particular issue with this point m ade by Lusher, saying bluntly, ` It has been stated rather foolishly, by a member not very closely attuned to the law that there has been no appeals. But there could have been an appeal. There was no restriction in either State, Liberal Country Party or Labor government as to appeal (ibid., p. 981). M oreover, in view of the universal approbation of the Davidson and Wald rulings in other and higher courts, I concur with the point m ade by M cM ahon here as to the state of the law not being unstable or non-binding because of the absence of appellate consideration. This pattern of approbation has to be made out largely in terms of civil law, as criminal prosecutions of abortion providers have been rare since 1972. There is some dispute as to the causes of rarity of prosecutions. For example, form er judge Jimmy Staples claims that prosecutions ceased not because of the Wald ruling itself, but because of a deal he and a NSW state Labor politician reached with the police ` in the early 1970s ; Staples further claims that the Newm an ruling threw the ` truce he had negotiated into doubt (Jopson 1994). There is som e evidence for the Staples view on causative priority in the fact that another (unsuccessful) prosecution was launched one year after the Wald ruling (see M ylchreest 1994), presumably preceding the deal made ` in the early 1970s . However, I do not think that my argum ent here rests on deciding the relative importance of this deal as against the Levine ruling as causative factors in the rarity of prosecutions. The foremost case on abortion in the criminal law approving the W ald decision is R v. Bayliss & Cullen, heard in 1986 in the District Court of Queensland, in which two doctors were charged under s. 224 of the Queensland Crim inal Code. 19 Judge M cGuire in this case sought to declare the law on abortion, to give ` some authoritative guidance to the public and the medical profession (R v. Bayliss & Cullen, p. 10). He held that the case of Bourne and its ` offspring of Davidson and Wald ` substantially represent the law of Queensland (ibid., p. 45). To conclude his statement of the law, Judge M cGuire noted that the Bourne doctrine ` is a humane doctrine devised for humanitarian purposes . But he also cautioned:
It would be wrong indeed to conclude that Bourne equates to carte blanche. It does not. On the contrary, it is only in exceptional cases that the doctrine can lawfully apply The law in this State has not abdicated its responsibility as guardian of the silent innocence of the unborn. It should rightly use its authority

19

R v. Bayliss & Cullin (1986) 9 Qld Lawyer Reps 8. For a pro le on Dr Bayliss and his view of the repercussions of the trial, see L. Scott (1995).

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to see that abortion on whim or caprice does not insidiously lter into our society. There is no legal justi cation for abortion on demand. (ibid., p. 45)20

It is unclear just what this caution amounts to in terms of practical legal consequences, particularly in light of the acquittal of Drs Bayliss and Cullen (and at any rate the caution would seem to count as dictum). As I noted above, however, most cases that have cited the Davidson and Wald rulings with approval since 1972 have not been criminal proceedings, but have concerned the granting of injunctions against the procurement of a m iscarriage. 21 The foremost example of such civil actions is the 1983 Queensland case of K v. T, where a man sought an injunction to prevent a woman from having an abortion consequent to their casual affair.22 The only grounds the woman gave for wanting an abortion were that it would be best for everybody. (I am not implying a belittlem ent of her claim, simply noting that it was not phrased with any reference to the terms of Judge Menhennitt s criteria. As I note below, however, it is neither the objective situation of the woman nor her assessment of her situation that form s the test of lawfulness, although these may be evidence in a jury s assessm ent of the reasonableness of the doctor s belief.) In this case, Justice G. N. W illiams reiterated that the question of crim inality in relation to an abortion is one triable by jury, a jury who would, he said, be properly instructed in accordance with Bourne as applied in Davidson. Justice W illiams noted that to presume the criminality of the woman s proposed course of action would be to determine the m atter of the reasonableness of the (putative) doctor s conduct beforehand, and would also contravene the principle that courts do not usually give advisory opinions on the possible criminality of proposed actions (K v. T, p. 398). Justice W illiams also denied that the man had the necessary standing to bring his action; on appeal, the Queensland Attorney-General was added as plaintiff, but the m an s claim was again rejected on m ore or less similar grounds as at rst hearing.23 In the nal stage of the case, Chief Justice Gibbs rejected special leave to appeal to the High Court and an interlocutory injunction, the m an s application being at that stage based on the entitlement of the Attorney-General to prevent a crime via the civil courts, and in consideration of the position of an unborn child as specially protected by the court.24 The Chief Justice ruled again, that the determination of whether a serious crime is about to be committed is one left by law to a jury, but otherwise he thought, it unnecessary to consider the lawfulness or otherwise of the wom an s proposed course of action. And citing the English case of Paton v. BPAS, the Chief
20

See also CES {2} per Priestley JA, p. 82, where a distinction is made between the ` limited circumstances set out in Wald and abortion on demand. 21 This seems to be the pattern also in England, although legal provisions differ from those in most states here: see for example Paton v. BPAS Trustees {1979} 1 QB 276, and C v. S {1987} 1 All ER 1230 (heard by {Mrs} Justice Heilbron). 22 K v. T {1983} 1 Qd R 396 (Supreme Court). Justice G. N. Williams however noted that his approach would not govern in all circumstances a situation involving a husband seeking an injunction against his wife s having an abortion. Other related cases are In the Marriage of F (1989) 13 Fam LR 189 (Family Court), in which a husband applied for an injunction to prevent his estranged wife from terminating her pregnancy, and K v. M inister for Youth and Community Services {1982} 1 NSW LR 311, in which a state ward applied to have an abortion for which permission had been refused by the minister administering the Child Welfare Act. 23 A-G (ex rel Kerr) v. T {1983} 1 Qd R 404 (Full Court). 24 A-G for QLD (ex rel Kerr) v. T {1983} 57 ALJR 285 (High Court).

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Justice denied that the unborn had any rights enforceable at law. Interestingly, the one thing added by Chief Justice Gibbs to the reasoning of the previous stages of the case was the following comm ent:
There are lim its to the extent to which the law should intrude upon personal liberty and personal privacy in the pursuit of m oral and religious aims. Those limits would be overstepped if an injunction were to be granted in the present case. (A-G for QLD (ex rel Kerr) v. T, p. 286)

The general conclusion that can be drawn from this brief survey of the foremost criminal and civil cases on abortion is that Australian courts have approved the rulings in Davidson and Wald without reservation. That is, the wide understanding of ` lawfully given in those rulings governs the legal position on abortion in New South W ales, Victoria and Queensland, and would almost certainly be persuasive if tested in Tasm ania and W estern Australia. M oreover, the rulings entail that a heavy burden of proof falls on the prosecution in establishing that the actions were ` unlawfully undertaken, to the satisfaction of a jury. The fact that these rulings have not been appealed by state governments does not m ean that they are fragile as a claim to represent what the law is, or as to what counts as ` lawfully . In the case of CES, no doubt was expressed at any stage by any party about whether the Davidson and Wald rulings represented the law.25 I may have given the impression in the above that there are very few if any abortions that would attract criminal charges and fewer still that would be successfully prosecuted. 26 And this is precisely the impression I wanted to give. I now want to broach the question of whether there are any abortions, or to be more precise, any actions taken in procuring a m iscarriage, that would count as ` prima facie illegal (keeping in m ind the absence of any understanding in the comm on law that would presume conduct to be unlawful unless it is speci cally authorised by law, as noted for example by Exshaw (1959, p. 51), and that purportedly criminal conduct is a matter for the state prosecuting authority). In the face of the paucity of prosecutions over the last 25 years, this will be an inquiry mainly about hypotheticals, which is anyway the status of the abortion at issue in the CES case. Prima Facie Illegal Examples To begin this part of m y argument, I want to raise what is perhaps the most comm on (mis)understanding of abortion law and policy, and that is at once also the
25

The possible hold-out is the dissenting judgment of Justice Meagher, who while noting the ` exception made in W ald, nevertheless stipulated: ` The position is perfectly clear: s. 82 and s. 83 of the Crimes Act 1900 make abortion illegal (CES {2}, 85). Note that in 1994, the NSW Right to Life Association s action in the Federal Court to stop trials of the ` morning after pill RU486 on the basis of their illegality in terms of Justice Newm an s allegedly ` stricter view on abortion law failed, primarily on the basis of the organisation s lack of standing. See Right to Life Assn v. Dept of Human Services (1994) 125 ALR 337, and decision upheld at Full Court (1995) 128 ALR 238 (the report by Scott 1994 of this case is inaccurate). Finally, the submissions to the High Court on behalf of the ACHCA and ACBC (1996), as I read them, accept that Davidson and Wald do represent the law, but argue that these cases were wrongly decided and should be set aside. 26 An exception seems to be where a criminal assault to a pregnant woman causes her to miscarry, as in R v. Lippiat, unreported, District Court of Queensland, 24 May 1996, Judge Hoath, as noted in Roberts (1996a, b), and Australian (1996). In this context, also see the references mentioned in the submissions on behalf of the ACHCA and ACBC (1996, p. 28).

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most common popular criticism of it, whether from a ` pro-choice or a ` pro-life perspective. This understanding is that put forward in the Cleo article: that most abortions performed in Australia are ` technically illegal. The claim here is that by the letter of the law, abortion is illegal, but that, to use Cica s phrasing, ` the non-enforcem ent of the law has led to a situation where abortion is available virtually on demand (Cica 1991, p. 48). This understanding, functioning also as self-evident criticism, was voiced from many quarters at the various stages of the CES case. For example, an editorial in the Sydney Morning Herald around the time of the Newm an decision implied that the ` strict letter of the law was being outed.27 In a more academic context, Jane Swanton has argued that there is ` an imbalance between the letter of the law and its enforcem ent, in the case of early termination or pregnancy in New South W ales (1996, p. 8), an argument echoed by Lynda Crowley-Smith (1996, pp. 36970). The gist of such claims is that m any if not m ost abortions performed are in some sense prima facie illegal. That is, at least in abortion clinics, doctors who perform abortions do little m ore than endorse a woman s request for abortion, m aking the requirement of the doctor s honest and reasonable belief about serious danger to the woman amount pretty m uch to an empty form ality. Further, the idea is that governments have connived in this situation, through an expedient refusal to enforce the law. The answer to such criticisms of the state of the law is rather simple: the criminal law does not deal in hypothetical allegations or pronounce on rumours. (Nor, as far as I know, does the law itself as distinct from popular discourse recognise a category of technical illegality.) Perhaps the clearest statement in this respect was made by Justice Priestley in the appeal of the CES case, in noting:
as the law stands it cannot be said of any abortion that has taken place and in respect of which there has been no relevant court ruling, that it was either lawful or unlawful in any general sense. All that can be said is that the person procuring the miscarriage may have done so unlawfully. Sim ilarly the woman whose pregnancy has been aborted may have committed a com mon law criminal offence. In neither case, however, unless and until the particular abortion has been the subject of a court ruling, is there anyone with authority to say whether the abortion was lawful or not lawful. The question whether, as a matter of law, the abortion was lawful or unlawful, in such circumstances has no answer. (CE S {2}, 83)

This statement echoes the cautions issued by the courts in the various injunction cases discussed or alluded to above, where the plaintiffs attempted to foreclose a proposed, that is hypothetical, act. Actions that are not presented to courts
27

` Time to rethink abortion laws (Sydney Morning Herald 1994). It is to be regretted that even as to describing the ` strictletter of the law , journalists are very careless. For example, King (1993) wrote that abortion is illegal in Queensland under the Criminal Code, except if two doctors certify that the mother s health is at risk, before 26 weeks. Suf ce to say that none of these conditions apply in law. As Justice Williams noted in K v. T, p. 398, ` in Queensland there is no legal requirement that any particular number of doctors should hold the requisite opinion in good faith before the protection afforded by s. 282 is established, but, following dictates of prudence, the opinion of more than one doctor is usually sought . Also see Lyall (1996), who presents a farrago of errors, in particular on statutory age of consent provisions.

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for prosecution or deliberation by state prosecuting authorities, but which are nevertheless claimed by some party to be illegal or criminal, fall outside the province of judicial deliberation. It is this dif culty that in fact dogged the woman s claim in the CES case. It is fairly clear from the transcript of Justice Newm an s ruling that he was not pushing a personal barrow: he presented his decision as one to which he was driven by precedent in other areas of the law, and by the empirical evidence at issue in this case. 28 W hat is m ore, Justice Newman s explanation of the law explicitly cited and approved Davidson and Wald as the basis of the legal position on abortion. In his ruling, Justice Newman noted that in criminal cases the onus is on the prosecution to show that the tests of lawfulness were not ful lled, and that in the case at hand, that onus fell on the defendants.29 The problem with which he had to deal was partly of an evidentiary character, which in my view led him to take a certain position on the law that although perhaps uninspired does not deserve the criticism it has received from ` pro-choice advocates. The m ain evidence in the case came from the defendants, and that evidence seemed to establish that the pregnancy posed no serious physical or m ental danger to the woman (as M andy Rice-Davies m ight say: well they would say that, wouldn t they). W hat evidence was offered on behalf of the wom an, on the other hand, seems to have been badly prepared or presented. It could be argued however that the evidence from both sides was of the wrong sort. Both sides (as well as Justice Newm an himself), that is, focused on whether there was factual evidence of serious danger to the wom an s health, rather than attempting to satisfy the test of lawfulness, which is an honest and reasonable belief as to that serious danger on the part of an (in this case unnamed) doctor acting on that belief. 30 Factual evidence of the latter type in certain crucial aspects is in this case missing, because the abortion was not perform ed. That is, no prospective or actual performer of an abortion on her saw the woman at the time of her pregnancy, for the simple reason that the doctor consulted by the woman when she knew that she was pregnant deemed that it was then too late for a safe abortion to be perform ed (the accepted upper limit for pregnancy terminations in m ost NSW clinics is 18 to 20 weeks, as reported by Larriera 1994). The peculiarity of the case lies in the circumstance that there can be no evidence that would be of compelling bene t to the woman s case because the abortion did not in fact take place.31 Hence the case falls into a kind of limbo, where an abortion, this abortion, m ight have been illegal, but also might have been legal. W e simply cannot say with absolute certainty, although it nevertheless
28

See CES {1}, 10: ` Any decision which I arrive at in this case is one according to law and I wish to make it plain that I am not expressing any view relating to the moral issue which is of concern to the community . Such disclaimers of course form a trope in legal judgments generally, and can be found in virtually any of the injunction cases noted above. 29 Justice Kirby, in CES {2}, 61, stressed in this connection that it is not for the doctor to show the honesty and reasonableness of his or her belief, but upon the crown to negative it. 30 According to Justice Newm an (CES {1}, 6), ` To make an abortion lawful in New South Wales there must be an element of serious danger , in the absence of evidence of which the abortion would have been illegal. Justice Newm an seems to have used the assessments of doctors as evidence of the woman s objective condition, rather than using reports of the latter as evidence of the possibility of a doctor s forming a reasonable belief as to the danger to her health. 31 Zdenkowski (1994) argues that ` To speculate retrospectively about her physical and mental condition seems a imsy basis for concluding that a hypothetical abortion would have been unlawful . But also for concluding that it would have been lawful!

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appeared necessary to decide one way or the other in order to resolve the claim at issue in the CES case. Strangely, the dif culties arising from this peculiarity were dealt with very easily in a somewhat analogous case in Queensland in 1995, which does not seem to have caught the attention of the media. In Veivers v. Connolly, Justice de Jersey in the Queensland Supreme Court dealt with a woman s claim for damages against a doctor for failing to follow a proper regime of blood testing to discover whether she had rubella. The woman claimed that if the proper testing had been carried out, she would have had an abortion on discovering the existence of a high risk of deformity in the foetus. Justice de Jersey appeared to accept both that this probability would constitute evidence of serious danger to the woman s mental health and that it could give rise to a doctor s acting lawfully in terminating the pregnancy, in reference to s. 282 of the Queensland crim inal code. The only objection dealt with at any length by Justice de Jersey was that the woman would only have been a ` candidate for an abortion; for the slight possibility that ` the opportunity to terminate the pregnancy would not lawfully have arisen , the damages payable were discounted by 5% (Veivers v. Connolly, p. 335).32 In his form ulation, however, even Justice de Jersey could be considered as giving too much legal weight to the objective state of the woman s m ental health. As Justice Kirby stressed in the CES appeal, to do so would be to misconstrue the test of lawfulness. Again, that is, the question is not whether a serious danger is posed to a woman s health, but it is a question subjective to the extent that it involves the doctor s assessment of danger. In terms of the CES case or in similar circumstances, then, the correct question would be, as noted by Justice Kirby:
whether the defendants had, by suf cient evidence and available inference, established that a jury would have been entitled to conclude, beyond reasonable doubt, that a hypothetical medical practitioner, performing the termination operation upon {CE S} could not have held an honest and reasonable belief that her mental or physical health was in fact gravely affected by her pregnancy warranting termination (CE S {2}, 61. {However, as Justice Priestley noted, in CE S {2}, 81, the wom an did not in fact phrase her case on this basis}.

Justice Kirby saw the dif culty of the CES case a arising not merely because it concerned a hypothetical act but a hypothetical act with, in his view, a subjective test (CES {2}, 66). This way of de ning the test of lawfulness m eans that in relation to an abortion, it is possible for the actions of a perform ing doctor to be unlawful while the woman whose pregnancy is terminated remains innocent of criminal complicity in the doctor s action. That is, even if the actions of the hypothetical doctor were construed as unlawful, the woman in the case of CES would not necessarily be precluded from recovering damages. She may not have had the necessary mens rea to render her a criminal participant in a (hypothetical) illegal termination. This is where it is important to recognise, as I noted above, that an abortion in a strict sense is neither legal nor illegal. As Justice Kirby argued of the use of the word ` unlawfully in the Crim es Act:
32

In my view, the focus on the issue of the legality of the abortion in the circumstances of the CES case in fact is a distraction from consideration of the rather more dif cult legal and ethical issues raised by a claim for damages of this sort, in relation to notions of ` wrongful birth . See on this aspect Graycar and Morgan (1996), Swanton (1996), and Crowley-Smith (1996).

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the unlawfulness is adverbial. It is directly connected with the commission of the act by an identi ed subject. It is not adjectival. The act will not itself be expressed by the Act to be unlawful in isolation. Far from stating the obvious, this observation highlights the problem of assessing the ` unlawfulness of the act in relation to the pregnant woman who may be alleged to be a party to an unlawful abortion. (CE S {2}, 62)

The suggestion that the wom an could be considered as a participant in a crime, and thereby precluded from claiming damages because of complicity in it, would not necessarily follow even if it were established that a doctor would have acted unlawfully. Justice Kirby noted that to be successful, the defendants in the case would have had to prove that the wom an herself knew the act was unlawful, in other words, that she did not know that the surgeon lacked the stipulated belief as to the danger posed by her pregnancy (CES {2}, 62). Justice Priestley agreed that a doctor could be convicted where the woman was not, that here there was a real possibility that CES would have gone to a doctor who would have agreed to her request and told her it was legal (CES {2}, 83). In terms of such understandings of lawfulness in relation to abortion, it would appear herculean to demonstrate that any abortions are prima facie illegal, and extremely dif cult to show that the actions of any ` participants in them could be categorised as ` unlawfully perform ed. At the time of the Newm an ruling, the then NSW Attorney-General Hannaford claimed that the law in NSW would continue to be enforced. This claim was reported in the Australian under the title ` State rules out legalising abortion (Dore & Junman 1994). By others, the claim was taken as an ominous warning that police raids were about to return in NSW . In fact, Hannaford meant exactly what he said: the law is what the law is interpreted to be at present and is in force.

Conclusion W hen I was preparing this article, I tried to think of examples of abortions that would surely count as illegal. I thought rst of terminations performed without appropriate m edical expertise or by those without proper medical quali cations, or miscarriages incurred as a result of criminal assault.33 I then thought, well what of very late abortions, especially late abortions for seemingly trivial reasons? I realised I was leaving the question of legality behind in doing so, and was looking at what is to me anyway the far more important question of ethical defensibility. To stay instead with the question of m y paper is abortion illegal my brief answer is no. That is, there is no legal provision or authoritative understanding specifying that abortion, of itself, is illegal. Nor is there any provision in the law specifying that all actions in procuring a miscarriage, perform ing an abortion, or terminating a pregnancy are unlawful, criminal or illegal. And as to the approximately 80,000 abortions actually perform ed by m edical practitioners in Australia each year, none of these is illegal by de nition because nobody has been
33

See Tom (1992) concerning a doctor answering to charges before the Medical Tribunal; R v. Salika {1973} VR 272, a case concerning charges of murder brought against a man performing a ` backyard abortion; and nally, note the exam ples mentioned in footnote 26 above.

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successfully prosecuted in relation to any of them.34 The dif culty in categorising the crim inality or otherwise of unperformed or proposed abortions relates to their hypothetical status rather than to some problem inherent in the law as it stands. Having said all of this, I want to conclude with a few rem arks about the broader political and legal strategy of continued reference to abortion as illegal. It is apparent that there is much confusion in the public and its educators about the legality of abortion. In my view, given this context, to claim that abortion is illegal is to act irresponsibly in adding to the existing confusion. I want to be quite clear, however, that I am not saying we should argue for or advocate a certain position because of the practical consequences of doing otherwise. I am rather pointing out the problems of a position to which I have objections independent of noting those consequences. It seems to me that when people speak of the illegality of abortion, they are in fact referring to som ething else rather different. That is, properly speaking, their objection is not to the lack of legality of abortion, but to the criteria on which abortion is legally available. For example, Natasha Cica argues that one of the reasons that abortion law is weak is because it does not set out a clear principle, such as the right of privacy and that the answer is for the legislature to bring ` authoritative clarity to this area (Cica 1991, p. 68; see also W aller 1987, p. 55). But this is clearly false: the Davidson and Wald rulings do set out a clear principle, that of necessity, and it is one that has been found persuasive throughout civil and criminal rulings since 1972. That principle m ay not be to everyone s liking (see for example, ACHCA & ACBC 1996), and it m ay not be extensively elaborated in the judgments, but it is a principle nevertheless. Hence, rather than calling for the legalisation of abortion, it would seem to be both more honest and responsible to call for a different basis to be supplied for its legality. It may be, however, that the philosophical, as well as the political, costs of founding abortion law on, say, a right to privacy, would be out of proportion to the bene ts of such a move, especially given the present availability of abortion. There have been two recent challenges to the present legal and political position on abortion. The more widely known is that presented in the application on behalf of the Australian Catholic Health Care Association and Australian Catholic Bishops Conference to be heard as an amicus curiae in the High Court hearing of the CES case on appeal (ACHCA & ACBC 1996). The case was settled on 10 October 1996 before the submissions made, which largely concerned the principle of necessity, could be considered in detail. The second challenge is posed by the formulation of the Model Criminal Code, whose discussion paper including examination of abortion was published in August 1996. Section 29 of the proposed Code is concerned with abortion, and is based on ` the basic policy decision to follow the South Australian legislation in this area as closely as possible (Model Criminal Code 1996, p. 80). There is some dif culty in seeing the proposed changes as having a great chance of being implemented. As the report itself notes, ` W ith the exception of South Australia and the Northern Territory, the political process in Australia has been unable to deal with the issue for a century, and that position is unlikely to change (ibid., p. 81). If the proposals were to be implemented however,
34

The only reference to a possible exception to this claim is the case of R v. Smart (1981), cited in the transcript of the High Court preliminary hearings on CES on 11 September 1996, p. 22. I have not been able to locate a report of or any other information on this case as yet.

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they would accom plish what challenges to judicial rulings have been ineffectual in doing: to accom plish a restriction on the legal availability of abortion, at the same time as supplying no more persuasive rationale for abortion than does the present legal and political position. References
ACHCA & ACBC (Australian Catholic Health Care Association and Australian Catholic Bishops Conference) 1996, Submissions to High Court. APFA (Abortion Providers Federation of Australasia) 1996, Submissions to High Court. Australian 1996, ` Nine Years for Karate Kick Foetus Killer , 2526 May. Cica, N. 1991, ` The Inadequacies of Australian Abortion Law , Australian Journal of Family Law, vol. 5, pp. 3768. Crowley-Smith, L. 1995, ` Veivers v. Connolly Revisited , Queensland Law Society Journal, vol. 25, no. 4, pp. 3913. Crowley-Smith, L. 1996, ` Therapeutic Abortions and the Emergence of Wrongful Birth Actions in Australia: A Serious Danger to M ental Health? , Journal of Law and Medicine, vol. 3, no. 4, pp. 35970. Dore, C. & Junman, R. 1994, ` State Rules out Legalising Abortion , Australian, 20 April. Exshaw, E. Y. 1959, ` Some Illustrations of the Application and Meaning of Unlawful in Criminal Law , Criminal Law Review, pp. 50317. Faust, B. 1994, ` Feminists Failed Us on Abortion , Australian, 30 April1 May. Faust, B. 1996, ` Abortion Always a Women s Fight , Australian, 1920 October. Field, M . A. 1993, ` Killing The Handicapped Before and After Birth , Harvard Women s Law Journal, vol. 16, pp. 79138. Fitzgerald, J. 1995, ` Selective Abortion and Wrongful Birth in Queensland: Veivers v. Connolly , Queensland Law Society Journal, vol. 25, no. 2, pp. 18997. Gallagher, J. 1985, ` Fetal Personhood and Women s Policy , in Virginia Sapiro (ed.), Women, Biology, and Public Policy, Beverley Hills: Sage. Graycar, R. & M organ, J. 1990, The Hidden Gender of Law, Sydney: Federation Press. Graycar, R. & Morgan, J. 1996, ` Unnatural Rejection of Womanhood and Motherhood : Pregnancy, Damages and the Law: A Note on CES v. Superclinics (Aust) Pty Ltd , Sydney Law Review, vol. 18, no. 3, pp. 32341. Gutkin, S. 1996, ` One Abortion for Every Three Births, says UN , Sydney Morning Herald, 16 February. Jopson, D. 1994, ` Ex-Judge Reveals Police Abortion Deal , Sydney Morning Herald, 25 June. Hansard (House of Representatives) 1979. King, M . 1993, ` Labor W omen to Embarrass Goss on Abortion , Australian, 2829 August. Larriera, A. 1994, ` Doctor Attacked over Late Abortions , Sydney Morning Herald, 28 October. Law, S. A. 199495, ` Silent No M ore: Physicians Legal and Ethical Obligations to Patients Seeking Abortions , New York University Review of Law & Social Change, vol. 21, no. 2, pp. 279322. Lyall, K. 1996, ` W omen s Group Fights to Limit Abortion Test Case , Australian, 1415 September. Model Criminal Code 1996, Chapter 5: Non Fatal Offences against the Person, Discussion Paper, Model Criminal Code Of cers Committee of the Standing Committee of Attorney-Generals. Mylchreest, I. 1994, ` The Abortion Statute will Remain a Dead Letter , Sydney M orning Herald, 28 April. Os eld, S. 1995, ` Abortion: Not as Legal as You Think , Cleo, no. 270, April, pp. 1248. Richters, J. 1996, ` Legalising Abortion: It s Time (editorial), Australian and New Zealand Journal of Public Health, vol. 20, no. 1, pp. 34. Roberts, G. 1996a, ` Abortion Law Row over Kick Death , Sydney Morning Herald, 25 May. Roberts, G. 1996b, ` Gentle Giant Kicked Unborn Son Dead , Sydney Morning Herald, 27 May. Rothwell, N. 1996, ` Abortion on Retrial , Australian, 1415 September. Ryan, L. et al. 1994, We Women Decide: W omen s Experience of Seeking Abortion in Queensland, South Australia and Tasmania 19851992, Adelaide: Flinders University Women s Studies Unit. Scott, J. 1994, ` Anti-Abortionists Fail to Prevent Pill Trials , Australian, 2425 September. Scott, J. 1995, ` Pro-Life Groups Slam Abortion Appeal Ruling , Australian, 2324 September. Scott, L. 1995, ` Born to Dissent , Australian Magazine, 2021 May, pp. 1114.

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Sydney Morning Herald 1994, ` Time to Rethink Abortion Laws (editorial), 20 April. Sydney Morning Herald 1996, ` Cleo Editor Resigns after 7 Months , 15 March. Swanton, J. 1996, ` Damages for Wrongful Birth CES v. Superclinics (Aust) Pty Ltd , Torts Law Journal, vol. 4, no. 1, pp. 112. Sweet, M. 1996, ` Third of Pregnancies End in Abortion: Study , Sydney Morning Herald, 8 March. Tom, E. 1992, ` Doctor Admits Lying about Abortion , Sydney Morning Herald, 24 November. Tribe, L. H. 1973, ` The Supreme Court 1972 Term Foreword: Toward a M odel of Roles in the Due Process of Life and Law , Harvard Law Review, vol. 87, no. 1, pp. 153. Tricker, C. M. 1995, ` Sex, Lies, and Legal Debate: Abortion Law in Australia. Note on CES v. Superclinics Australia , Sydney Law Review, vol. 17, no. 3, pp. 44657. Waller, L. 1987, ` Every Reasonable Creature in Being , M onash University Law Review, vol. 13, no. 1, pp. 3755. Zdenkowski, G. 1994, ` Through the Legal Maze of the Abortion Debate , Sydney Morning Herald, 24 October.