Weeks after the Abortion Law Reform Bill became an Act, a Ministerial response to a SARC query was published. It confirms that the Bill did not decriminalise all abortions performed by doctors in Victoria. Rather, the Minister says that the following scenario posed by SARC is ‘in theory possible’:
[I]f a doctor performed an abortion on a woman who was more than 24 weeks pregnant after unreasonably forming a belief that the abortion was appropriate in all the circumstances… such a doctor might be liable to prosecution under one of the “causing serious injury” offences in the Crimes Act, as a result of the extended meaning of “serious injury” introduced into that Act by the Bill.
The Minister claims that there is ‘little likelihood’ of this scenario actually occuring, because of the unlikelihood that two doctors will agree on something that is inconsistent with generally accepted medical practice. I’ll leave that issue to the health professionals, but the theoretical possibility raises a rights issue, because causing medical decision-making to be done in the shadow of a criminal charge for an offence attracting a twenty-year maximum sentence is arguably incompatible with the Charter’s right against unlawful or arbitrary inteferences in privacy. Alas, this significant rights issue for the pro-choice side of the debate was sidelined by the Charter’s savings provision:
48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.
Towards the end of the Abortion Law Reform Bill’s parliamentary debate, the pro-choice side responded to repeated references to the Charter by the pro-life side (in relation to the mandatory referral clause) by arguing that Charter s. 48 was, allegedly, sought by the Catholic Church. That’s a claim Rob Hulls made on the ABC, but I for one wonder if he was thinking of Charter s. 38(4), the exemption from the conduct mandate for religious bodies. At last week’s seminar, Pamela Tate revealed that the abortion issue ‘divided’ the consultation committee and that the view that abortion controversies should be resolved outside of the Charter stemmed from that. But, actually, the Committee favoured the narrower ACT approach, of only excluding the right to life, and its Report makes no mention of the rationale for the broader savings clause in the Bill itself. Tate insisted that Charter s. 48 was drafted to ensure that nothing at all in the Charter had any application to abortion. Strange that Charter s. 48 doesn’t quite say that (in comparison to, say, Charter s. 31.)
Anyway, the debate over the referral clause really demonstrates the stupidity of Charter s. 48, regardless of whose bright idea that clause was. Hulls’s main defence of the referral clause was that it did not require pro-life doctors to refer a patient to an individual pro-life doctor, but rather only required an ‘effective referral’, which presumably could be achieved by telling the patient to contact any public hospital. The problem with that defence is that it doesn’t fit the words of the clause:
8(1) If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must-… (b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.
If it wasn’t for Charter s. 48, the interpretation mandate would almost certainly achieve exactly the result that Hulls described. But, alas, s8 will be one of the few provisions of Victorian law that won’t get the benefit of the Charter’s regime for interpretation.
Or maybe not so few. The other response to SARC by Minister Maxine Morand contains some chilling news indeed:
The Committee has sought my advice as to whether, because the Bill extends the operation of these offences, and the extended definition of “serious injury” is a law relating to abortion and therefore exempt from the effects of the Charter, the offences contained in sections 16, 17, 21, 23, 24 and 319 of the Crimes Act are therefore now also to be considered to be laws relating to abortion and exempt from the Charter. I confirm that, to the extent that the laws relate to child destruction and abortion, they will fall within the exemption provided by section 48.
So, now Charter s. 48 exempts, not only laws that are specifically about abortion and child destruction, but also, to some extent at least, some general laws too. Indeed, these general laws are major criminal offences in Victorian law, carrying substantial penalties. And, indeed, they include the very offences that will now hang over the heads of any doctors who are contemplating a patient’s request for a late abortion (thus ensuring that the Charter cannot be used to interpret away this unfortunate threat.)
Whoever thought up and drafted Charter s. 48 has done an enormous disservice to both sides of the abortion debate. The section’s consequences were felt during the debate and will continue to be felt from now on. Moreover, they will also be felt in relation to any future changes in abortion or child destruction law. Indeed, Charter s. 48 will insulate even the apocryphal law requiring the killing of blue-eyed babies at birth from the Charter. The Abortion Law Reform BIll failed to deal with one last bad abortion law on Victoria’s statute books: the one in the Charter itself.
Charterblog 
Jeremy,
I have a hypothetical case for you to consider. Suppose that it is the year 2010. A woman who is 37 weeks pregnant decides that she wants her healthy foetus aborted. She is angry that her partner (who had wanted to become a father) has left her for another woman. She is also concerned about the impact a child would have on her social life and the expenses involved in raising a child. The woman visits her local GP who gives her the details of two doctors who are known to perform late-term abortions. Both of those doctors believe in the right of a woman to choose to have an abortion at any stage of pregnancy. After assessing “all relevant medical circumstances” and “the woman’s current and future physical, psychological and social circumstances”, the two doctors conclude that an abortion “is appropriate in all the circumstances” in view of the woman’s concerns about the impact on her social life and the additional expenses of having a child. Would an abortion performed in Victoria in these circumstances be lawful?
This depends on whether the doctors’ conclusion is one that is generally in accord with the views of the medical profession. I would have thought not, but I’m no medical expert.
Assuming I’m right, both the doctors could be charged with intentionally causing serious injury (to the woman) under s15 of the Crimes Act, an offence that carries 20 years in prison. Possibly, the woman could be charged with aiding and abetting them (and also be liable to 20 years in prison.)
Few would be unhappy with such an abortion being considered unlawful. But it’s not at all clear to me that the people who voted for the bill thought that such an abortion could attract a criminal offence that carries a higher penalty than the abolished offences of abortion and child destruction.
I note that “serious injury” includes “the destruction, other than in the course of a [lawful] medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm”. In effect, performing an abortion is still a criminal offence in Victoria is some circumstances. Given your acknowledgement that most people would not support an abortion in the circumstances described, I am puzzled by your comment about the “unfortunate threat” that doctors who perform unlawful abortions may be liable to prosecution.
More concerning (in my view) is the possibility that it may be lawful to perform an abortion in the relevant circumstances. After all, the legislation allows for an abortion having regard to the woman’s “social circumstances”. As you have intimated, the legislation is uncertain. It needs to be clarified in the interests of women, doctors and unborn children.
Ironically, looking at rights issues solely through the lens of the Charter can tend to distort one’s judgement on serious moral and ethical questions. (This is a general observation and is not directed at you, Jeremy.)
I share your concern about the lack of clarity in the law and its potential application to legalise (or at least arguably legalise) abhorrent events. The reason I nevertheless see the threat of prosecution as ‘unfortunate’ is that I don’t think that the lingering possibility of a major prosecution is a remotely good way to regulate the issue of late abortions, nor do I think that a major prosecution is an appropriate way to deal with a doctor who made a good faith attempt to comply with an ambiguous law. That’s the exact criticism that was made of the previous abortion law, and it’s astonishing to me that the new law has enacted precisely the same problem. (The EM to the ALRB wrongly states that doctors who perform late abortions against the law will only face professional discipline.)
I agree about the Charter distoring judgment about morality and ethics – something that became clear in the debate over referrals – but I think that the misconceived regulation of late abortions is the result of the lack of attention tothe Charter. If you read the VLRC report, you’ll see that human rights were shunted off to an appendix. The VLRC took the view that Charter s. 48 meant that it didn’t have to think about the Charter at all. I’m no blind Charter enthusiast, but I wonder if its recommenations would have been the same if the Charter was front-and-centre in its deliberations.
I agree. The legislation should be changed to remove the ambiguity, particularly in relation to late-term abortions for social reasons. An issue of such gravity should be decided by the people’s representatives in Parliament.