VCE LEGAL STUDIES Unit 3
CASE STUDIES IN MEDICINE AND TECHNOLOGY
Abortion Law Reform Act 2008 (Vic)
Assisted Reproductive Treatment Bill 2008 (Vic)
CASE STUDY ONE:
ABORTION LAW REFORM ACT 2008 (VIC)
The passage of this legislation represented a significant and historic change in the way abortion is regulated in Victoria. It was the final step in a process the Victorian Parliament commenced in August 2007 when it announced that it would seek advice from the Victorian Law Reform Commission about options to clarify the law of abortion.
In providing this advice the Commission was asked to provide options that would remove abortion offences from the Crimes Act 1958 where performed by a qualified medical practitioner, reflect current clinical practice and reflect community standards. Many individuals and groups contributed to the Commission’s investigations, which highlights the dynamic nature of policy development and law-making by parliament.
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· Strengths of parliament as a law-maker:
- can act swiftly to change the law where the need arises.
- can change an entire area of law with one piece of legislation.
- can seek out public opinion and expert advice (via its committee system), which enhances the notion of representative government.
· The nature and role of formal law reform bodies.
· The nature of informal pressures for a change in the law.
Previous legislative framework
Prior to the Abortion Law Reform Act 2008 (Vic), abortion was prohibited under the Crimes Act 1958 (Vic). Section 65 of the Crimes Act provided that unlawful termination of pregnancy at any stage during pregnancy was prohibited. Section 66 also prohibited the supply of an instrument or substance knowing it will be used to unlawfully terminate a pregnancy. Between 1864 and 2008, versions of section 65 and 66 have formed part of the Victorian criminal law.
The Menhennitt ruling
In 1969, a Supreme Court judge, Justice Menhennitt, outlined the circumstances in which an abortion was lawful. This changed abortion law in Victoria. Justice Menhennitt called this a 'therapeutic abortion' and his ruling set out the matters the prosecution must prove to satisfy a jury that a termination of pregnancy was unlawful. He said a therapeutic abortion is lawful in the following circumstances:
“For the use of an instrument with intent to procure a miscarriage to be lawful 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 mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuation of the pregnancy would entail; and (b) in the circumstances not out of proportion to the danger to be averted. “
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· The relationship between parliaments and courts in law-making. In this case, the parliament created the legislation to outlaw abortion, while the courts created the defence of a ‘therapeutic abortion’.
· The strength of the courts as a law-maker in responding to situations in society as they arise, without having to focus on community pressures and popular opinion.
However, the Menhennitt ruling did not provide the Victorian community (and especially doctors and other health care professionals) with a clear statement about when a termination of pregnancy is permissible. The common law is not designed for that purpose.
The Victorian Supreme Court had not considered these provisions in the Crimes Act since the Menhennitt rules were formulated and no one had been charged under the criminal law with performing an unlawful abortion in Victoria for 21 years. It should be noted that doctors have appeared before the Medical Practitioners’ Board for alleged misconduct over the performance of an abortion. A recent case involved a doctor who performed an abortion on a woman with a severe intellectual disability; the doctor had not obtained consent from the VCAT to conduct the procedure, instead relying on permission from the girl’s parents to perform the abortion.
The Menhennitt ruling did not give guidance as to the matters that should be taken into account by the doctor when determining risk of harm to the woman, or the means for determining whether an abortion was the appropriate response to the woman's particular circumstances.
The courts of other states, which have subsequently expanded upon the Menhennitt ruling, provided more authoritative guidance. In 1995, the majority of the NSW Court of Appeal, in CES v. Super Clinics affirmed and clarified social and economic factors, both during and after pregnancy, could be considered when assessing risk to the pregnant woman's health. This operated as persuasive precedent in Victoria until the passing of the Abortion Law Reform Act 2008.
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The weaknesses of the courts as a law-maker, in that:
· Courts only create legal principles – the ratio decidendi – to meet the demands of the specific facts of the case in question. The role of the court is not to issue broad policy initiatives; this role is played by parliament. Unless parliament acts in response to the development of the common law, then uncertainty will arise.
· The Menhennitt ruling from 1969 has not been subsequently reviewed through a further case appearing before the courts. Therefore, a precedent that may have been entirely appropriate in 1969 may no longer be socially or legally appropriate.
The purpose of the Abortion Law Reform Act 2008
According to supporters of the legislation, modern laws that reflect current clinical practice and community standards with regard to abortion were long overdue. By introducing this law, the government allowed that women should be supported in their health choices, and provided with legal certainty when making these choices. Over the past 30 years, medical and health practitioners and lawyers argued for legal certainty on the circumstances in which an abortion is legal. Indeed a wide range of individuals and groups campaigned for reform.
According to the second reading speech for this bill (delivered by Minister for Women’s Affairs, Ms Maxine Morand): “The government has committed to the development of legislation that provides clarity for women, health practitioners and the community about the circumstances in which the termination of pregnancy can be performed. In recognising the sensitivity and complexity of this issue, detailed advice was sought from the Victorian Law Reform Commission. “
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· This highlights the strengths of the parliament as a law-maker, in that the parliament can repeal existing legislation and codify the common law to provide an entirely new legal framework that meets community values.
· The ‘dwarfism case’ also highlighted the urgent need for clarity in the area of congenital abnormalities. In that case, the Royal Women’s Hospital performed an abortion on a woman at 32 week’s pregnancy. She was severely distressed after learning, through an ultrasound scan, that her baby may have been born with dwarfism.
Victorian Law Reform Commission advice
To explore the key issues associated with this reform, the commission undertook widespread consultation with organisations and individuals:
· Responses were obtained from 36 meetings and over 500 written submissions were received.
· The Commission convened a panel of experts from relevant health professions to advise them on current clinical practice and a broad range of medical issues. People were invited to join the panel because of their high professional standing, rather than any direct involvement in the provision of abortion services.
· Key issues identified included the need for certainty and clarity in the law; and safe, quality services including a capacity for timely access.
· The Commission found that the rate of abortion is related to the rate of unplanned pregnancy, and the availability and use of contraception. The Commission also found that, according to community and medical standards, there was a desire for a reduction in the rate of abortion.
· The Commission found that the great majority of abortions are conducted in the early stages of pregnancy -- 94.6 per cent of abortions occur before 13 weeks, and 4.7 per cent occur after 13 weeks but before 20 weeks. A small percentage, less than 1.0 per cent, is performed after 20 weeks gestation.
· A 24-week gestational limit is common for more complex cases and is reflected in current clinical practice in Victoria, Australia and overseas.
· The Commission made a number of recommendations to improve the clarity of the law beyond the changes to the Crimes Act. These included that any new laws around termination of pregnancy should not contain mandated information provisions, requirements for mandatory counselling or mandatory referral to counselling, compulsory delay or cooling-off periods, and that any new law should not contain restrictions on where terminations may be performed. The Abortion Law Reform Act 2008 is consistent with the recommendations of the Commission.
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If students are required to discuss a formal law reform body, this would be an ideal, contemporary example. You must also be aware of the exact nature and structure of the Commission. This is contained in textbooks and study guides but can also be found at www.lawreform.vic.gov.au
The new legislative framework
This legislation drew on the recommendations of the Victorian Law Reform Commission’s final report on the law of abortion (March 2008), and reflected the two-staged approach based on 24 weeks’ gestation.
· Under this law, abortions are regulated like any other medical procedure where the woman is 24 weeks pregnant or less. Abortion where the woman is 24 weeks pregnant or less will be a private decision for a woman in consultation with her medical practitioner.
· After 24 weeks gestation, a registered medical practitioner may perform an abortion on a woman who is more than 24 weeks pregnant only if the medical practitioner reasonably believes that the abortion is appropriate in all the circumstances, and secondly, has consulted at least one other medical practitioner who also reasonably believes that the abortion is appropriate in all the circumstances. In considering all the circumstances the registered medical practitioner must have regard to all relevant medical circumstances and the woman's current and future physical, psychological, and social circumstances.
· The legislation also explicitly authorises the administration and supply of drugs by a registered pharmacist or a registered nurse in a hospital or day procedure centre for the purpose of causing an abortion in a woman who is more than 24 weeks pregnant where this is at the direction of a registered medical practitioner.
· As with surgical abortions the registered medical practitioner must reasonably believe that abortion is appropriate in all circumstances, and that opinion must be shared by at least one other medical practitioner.
· This framework provides Victoria with a regulatory framework through which abortions, like any other medical procedure, can be monitored.
· The Abortion Law Reform Act 2008 repealed parts of the Crimes Act that referred to the offences of unlawful termination of pregnancy (sections 65 and 66) and child destruction (section 10). The concept of 'serious injury' has been amended to include destruction of the foetus of a pregnant woman other than in the course of a medical procedure (section 5), and a new offence will be created for an abortion performed by an unqualified person. The law also provides that a woman, who consents to or assists in the performance of an abortion on herself by an unqualified person, is not guilty of an offence.
Passage of the bill through the Legislative Assembly
When the Abortion Law Reform Bill 2008 was debated in the Legislative Assembly, there was great controversy over the 41 amendments proposed to the legislation. Many of the amendments attempted to change the Bill by insisting counselling be offered to all women before and after an abortion, or introducing a panel to consider an abortion after 24 weeks. The Bill eventually passed the lower house in September 2008 without amendment.
An interesting aspect of the legislation was that a conscience vote was allowed. This meant that members could vote according to their personal views rather than the dictates of the party or their local constituents. This led to some interesting debates, which saw members of parliament who are usually party colleagues having open and public disagreements over the nature of the Bill.
For example, Sports Minister, James Merlino, opposed the Bill, introducing a number of amendments. He expressed concern that the legislation may increase the number of abortions in Victoria (currently about 20,000 per year). His opinions were opposed by Premier Brumby. The Liberal Party and the National Party also had members disagreeing over the Bill.
Passage of the Bill through the Legsilative Council
On 10 October 2008, members of the Legsilative Council voted 23 to 17 in favour of the Abortion Law Reform Bill 2008, without amendments. Once again, key members of the government, including Treasurer, John Lenders, opposed the legilsation which was widely supprted by his own party. In one of the toughest debates in parliament in decades, the President of the Legislative Council, Bob Smith, became upset after opponents of the Bill screamed from the public gallery. Four pro-life activists were evicted from the chamber. Also, all MPs who voted for the Bill were sent an email saying: "You have just condemned untold numbers of unborn Victorians to death … You are, each and every one of you, a disgrace to humanity."
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The nature of a conscience vote provides excellent grounds for discussing the strengths and the weaknesses of the parliament as a law-maker:
· Conscience votes allow for free and open expression of opinions by members of parliament. This often enhances community debate of the issue because members of parliament express a more diverse range of views in the media. The consequences of conscience votes in stimulating public debate were also seen in other examples (both from the Commonwealth Parliament) of legislation on the abortion drug, RU 486, and stem cell research/therapeutic cloning. This could be considered a strength of the parliament as a law-maker, because MPs tend to canvass widely and speak with lobby groups and their constituents. In this way, parliament is more representative than the usual situation where Members obey the dictates of their parliamentary leaders.