Appendix A - History of Abortion Law Policy

Table of contents

Background Information

The commission has decided to include four appendices that contain background material and references, which may assist readers who wish to examine a particular issue in further detail. This material is provided for information only and, due to the nature of the terms of reference, did not directly influence the commission’s recommendations.

Appendix A contains a brief history of abortion law policy in Australia and the UK. Appendix B contains a summary of some of the major ethical writings about abortion. Appendix C refers to a range of judicial statements about the status at law of a fetus and the nature of the relationship between a pregnant woman and a fetus. Appendix D consider some of the issues that arise in the area when abortion is considered from a human rights perspective.

Introduction

  1. A.1 Abortion has been practised since the earliest times. Throughout history, moral, religious, and ethical considerations have been engaged in the debate about the role of law in abortion. At various times abortion has been punished, tolerated, or hidden but at all times, the practice has remained.1
  2. A.2 Grubb has suggested that public policy considerations of abortion have moved through three distinct phases. These phases can be described as the criminalisation of abortion, the acceptance of therapeutic abortion, and the regulation of abortion with the medical profession as gatekeepers.2 The policy and ethical considerations of patient autonomy, and in particular women’s reproductive autonomy, have recently emerged as policy values informing modern abortion laws.
  3. A.3 The historical policy framework of abortion law is not lineal. Rather, a series of common themes has emerged over time. The history of abortion policy in Victoria ‘suggests a dynamic interplay between protection of women, regulation of abortion practices, and tolerance of abortion’.3 The ebb and flow of different policy considerations in Victoria is not dissimilar to the history of abortion policy and practice in Britain, upon which much of our criminal law is based.
  4. A.4 This appendix considers the major policy drivers underpinning the development of abortion law in the UK and Australia.

Early History

  1. A.5 ‘In most, if not all, the civilisations … abortion was regarded as contrary to the social ethos: in some it was criminal.’4 The earliest surviving record of abortion law is over 3000 years old—Assyrian–Babylonian law provided that a woman who ‘cast the fruit of her womb by her own act shall suffer impailment’.5
  2. A.6 The policy basis for these laws, across the various civilisations and as far as they can be ascertained, was the suppression of social evils such as sexual promiscuity, and protection of adult life from the risks of taking abortifacients or using dangerous instruments. There appears to have been little concern for the fetus. By Roman times the criminal element of abortion related to depriving the father of his child rather than fetal protection.6

19th Century—Criminalisation of Abortion

  1. A.7 There is conflicting authority about the extent to which abortion was regulated by the common law before 1803.7 Abortion was mentioned in Blackstone’s Commentaries on the Law of England in the 18th century and in Coke before that.8

At common law abortion of a woman quick with child seems to have been a misdemeanour only, unless it resulted in the death of the mother … before quickening it was not punishable at all.9

  1. A.8 The development of abortion as a statutory offence in Lord Ellenborough’s Act extended the offence to the entire gestational period. It also increased the penalty for post-quickening abortion from a misdemeanour to a capital offence; the pre-quickening offence attracted a penalty of transportation.10 The 1803 statute did not make specific reference to the woman herself.11
  2. A.9 Keown argues that parliamentary debate and amendments passed during the Bill’s passage suggest that its primary purpose was to clarify the law because there was conflicted authority about the status of the common law offence.12 A further aim was to punish and prevent what was seen as a too frequent social problem with resultant loss of fetal and maternal life.13 A further purpose, according to Brookes, was the desire to protect women from the dangers of forced abortion.14 Although there does not appear to have been any major public outcry over the issue at the time, there is evidence that the practice of abortion was widespread.15
  3. A.10 The establishment of a statutory offence may also have enjoyed support from the emerging professionalised medical community. Although many abortions were self-performed, midwives also undertook abortion.16 The criminalising of abortion may well have assisted in the medical profession’s struggle in the 19th century for supremacy over ‘irregulars’.17
  4. A.11 From 1803 to 1861 the offence was gradually extended and attracted ‘consistently severe punishment’.18 The severity of the law was in part due to the generally harsh nature of the criminal law at that time but also reflected the increasing influence of the medical profession.19 While successive legislative reforms in 1828, 1837, and 1861 were primarily in the interests of consolidating the criminal law, significant changes were made in response to criticisms by the profession.20
  5. A.12 The Offences Against the Person Act 1837 gave the offence of abortion its modern form.21 It removed the distinction around quickening, which had been an irritant to the medical profession.22 It also ended the death penalty for abortion. This was part of a broader intention to improve conviction rates by reducing the number of capital offences as juries were generally reluctant to deliver guilty verdicts when a death penalty applied. In making the law on offences against the person simpler and more lenient there was an expectation that both prosecutors and juries would be more likely to apply it. There was still no express provision regarding the woman; however, that was resolved in the next reform.23
  6. A.13 The Offences Against the Person Act 1861 enacted a specific provision to make it clear that the abortion offence applied to the mother. This was in keeping with medico-legal opinion that aborting a fetus was abhorrent to morality and that the woman should be punished.
  7. A.14 The 1861 Act also specified that it was no longer necessary to establish that the woman was in fact pregnant. Throughout the 19th century the medical profession increasingly warned of the life-threatening risks of abortion techniques and this new offence aimed to act as a further deterrent. Thus, the medical profession increasingly characterised the problem of abortion in terms of maternal health.24

The reason assigned for the punishment of abortion is not that, thereby an embryo human being is destroyed, but that it rarely or never can be [e]ffected by drugs without sacrifice of the mother’s life.25

  1. A.15 Previously, reformers had recommended that the offence of procuring a miscarriage should not be punishable when the act is done in good faith and with the intention of saving the life of the woman.26 This was not acted upon; however, the 1861 Act did include the term ‘unlawfully’ which was to be used so creatively in Bourne some 77 years later. This point was made more explicit in the Infant Life Preservation Act 1929 which provided a maternal life exception.27
  2. A.16 These concerns for maternal health, expressed in the strongest of sanctions—the criminal law—also served the interests of medical practitioners keen to consolidate their status as a profession. In criminalising abortion the

regulars, perceiving a demand for abortion, were concerned that patients might be lost to unqualified competitors unless strict laws were enacted to suppress the practice.28

Early Abortion Policy in Victoria

  1. A.17 Here in Australia in the second half of the 19th century, there was a similar cultural shift in the meaning of abortion from a well-utilised means of fertility control to a crime with a moral equivalent of murder.29 Nevertheless, the widespread practice of abortion continued.
  2. A.18 Throughout the colonial period there were very high rates of illegitimacy and maternal mortality.30 Although Victoria’s illegitimacy rates were lower than NSW, unwanted pregnancy was still a major problem for women.31 ‘By the mid 1850’s abortion and advertisements for abortifacients were widespread in Australia … while chemists were strongly linked to referrals to abortionists.’32
  3. A.19 The practice of infanticide also grew in the late 19th century.33 Indictment rates for abortion and infanticide were much lower in Victoria than NSW, but the conviction rate was higher.34 Of defendants in abortion cases, 92% were unmarried women, the majority of whom were domestic servants or working class women.35
  4. A.20 Nevertheless, ‘the overall numbers of abortion related convictions were extremely low’ compared to the practice.36 This suggests that the police may have been reluctant to pursue charges, or juries to convict.
  5. A.21 By 1907 the Australian Medical Gazette argued that abortionists were ‘looked upon as a public benefit rather than a common nuisance by juries’.37

20th Century—Therapeutic Abortion

  1. A.22 Both in Victoria and the UK, the late 19th and early 20th century saw a stronger focus on maternal health as the policy imperative underpinning abortion law and the emergence of the concept of the therapeutic abortion. While concern for the moral status of the fetus remained, the medical and legal communities increasingly considered notions of preserving the life and health of the mother as central to abortion law. This is given its most significant expression in Bourne, however, such concerns were raised before that famous case.38
  2. A.23 Keown argues that abortion on the grounds of maternal health was more prevalent among the regular medical profession than is often thought. He cites an article in the 1898 Lancet which stated ‘[t]he fundamental principle … is this: when the patient’s life is necessarily exposed to great danger if the pregnancy is allowed to continue it is proper to terminate it after adequate consultation’.39 He argues that by the late 1930s ‘it had become acceptable to preserve not only life but also health, both physical and mental’.40
  3. A.24 In England in 1937 the Birkett Committee enquired into ‘the prevalence of abortion, and the law relating thereto’. The committee was required to ‘consider what steps might be taken by more effective enforcement of the law or otherwise to secure a reduction in maternal mortality and morbidity arising there from’.41 This places the health of the woman front and centre in the policy-making framework, alongside a developing concern to bring the widespread practice of abortion under control.
  4. A.25 That committee, reporting after the Bourne decision, recommended the law be amended to make it:

[u]nmistakeably clear that a medical practitioner is acting legally, when in good faith he procures an abortion of a pregnant woman in circumstances which satisfy him that continuance of the pregnancy is likely to endanger her life or seriously to impair her health.42

  1. A.26 The case of Bourne itself marks the first regulation of lawful abortion and in effect brought the common law into line with the clinical practice of registered practitioners.43 From a policy perspective, Justice Macnaghten drew a clear distinction between ‘the act of the professional abortionist and an operation openly performed by a qualified surgeon’.44
  2. A.27 However, its effect in practice does not appear to have solved the problem of the backyard abortionist, at least for poorer women in England. In 1952, Glanville Williams wrote:

The decision in Bourne has ameliorated the law but has not yet taken full practical effect. The medical practitioner is said to be still chary to the act, except in the clearest of cases, partly because he fears that public opinion may not be in favour and partly because he is not certain how far the Bourne decision protects him.45

[T]he attitude of the medical profession in general was hostile, and tragic cases continued to occur … Women who had been raped, women deserted by their husbands, and overburdened mothers living in poverty with large families, also failed to get a medical abortion … in general the mass of woman could only go to a ‘back street abortionist’, wielding a knitting needle, syringe or stick of slippery elm … Although illegal abortions ran into thousands each year, convictions were comparatively few …46

  1. A.28 Glanville Williams was particularly concerned about the inequity that enabled rich women to secure an abortion but poor women to risk the backyard operators. He argued that wherever there was a total prohibition this dilemma remained.47
  2. A.29 A clear distinction also emerged in Victoria between the abortion experiences of the rich, who could access a network of midwives and doctors, and the experiences of the poor.48 Both practices operated in the shadow of the law. While the policy aim of the criminal prohibition was to protect women, the effect was to drive the practice underground.49
  3. A.30 At the Women’s Hospital in Melbourne the percentage of patients admitted following abortions trebled between 1910 and 1920.50 Between 1930 and 1933, 1069 women were treated at the Women’s Hospital for septic abortion, 136 of whom died. By 1936 abortion-related deaths accounted for 31% of the maternal mortality rate at the hospital, which was the place many women ended up following a botched procedure.51
  4. A.31 Robyn Gregory, in her thesis on the history of abortion law reform in Victoria, argues that post war

although abortion was publicly condemned, behind the façade of respectability there was societal acceptance ... but the continuing illegal status of abortion led to a subculture of corruption and collusion with chemists, taxi drivers, hotel keepers and hired touts forming a network of information for women.52

  1. A.32 By the 1950s the demographic profile of those seeking abortion had shifted towards married women.53 Given the general acceptance of the Macnaghten ruling in Bourne, medical schools were teaching that an abortion performed in a hospital setting with the agreement of two medical practitioners was lawful. ‘Despite the secrecy surrounding abortion, it played a necessary role in medical practice in 1950’s Australia.’54

1960s—Regulation of Abortion

  1. A.33 Although abortion was almost universally illegal in the first half of the 20th century, laws were liberalised in almost all industrialised countries and several developing nations after the 1960s. In the vast majority of cases, abortion became lawful in some circumstances, with the medical profession performing a gatekeeping role. This served the dual function of regulating therapeutic abortion with subsequent improvements in public health while promoting respect for the rule of law.
  2. A.34 This policy was given legislative expression in the UK in what has been described as the ‘compromise measure’ of the Abortion Act 1967.55 This placed therapeutic abortion on a statutory footing and extended the grounds for which abortion is lawful. It maintained professional autonomy and the primacy of clinical decision making. However, ‘… the law provides a special regulatory scheme beyond that pertaining to medical treatment and procedures in general’.56

End of the Backyard Trade

  1. A.35 The policy aim of the UK legislation was to keep women away from the backyard abortionists and eliminate their practice. By 1975 it was felt this aim had been achieved.57
  2. A.36 By 1960 it was estimated there were 10 000–30 000 abortions each year in Victoria. The introduction of the contraceptive pill in 1961 coalesced with growing calls for reproductive freedom and control by women. The influence of the UK Abortion Act was ‘undeniable’,58as public sympathy for women facing unplanned pregnancy increased.
  3. A.37 Abortion gained more media attention in the second half of the 1960s when a police crackdown on medical practitioners commenced. After two decades of relative immunity the prosecution rate in 1965 was four times the rate than that in each of the previous six years.59 By 1968 a much more zealous approach by the homicide squad had significantly increased the risk to doctors relying on the application of the Bourne precedent.
  4. A.38 At the same time public opinion was moving towards patient autonomy. A Morgan Gallup Poll conducted in October 1967 found 64% in favour of liberalised abortion laws.60
  5. A.39 While there were significant policy pressures, including the prevalence of backyard abortion and the dilemma over the gap between the criminal law and clinical practice, the Victorian Parliament did not amend the Crimes Act.61 In Victoria, NSW, and Queensland, the courts rather than the parliaments determined the circumstances in which abortion was lawful.62
  6. A.40 Victorian criminal law had always referred to the notion of ‘unlawful abortion’. It was on this phrase that the Menhennitt ruling would turn, confirming the lawfulness of the practice of therapeutic abortion by a medical practitioner in some broadly defined circumstances.
  7. A.41 However, ‘in practice, doctors continued to be charged, and women found it just as difficult to access abortion after the ruling as before’.63 Police corruption was subsequently exposed through the Kaye Inquiry.64 This inquiry pointed to ‘systemic police corruption, maintained in part, by a struggle for industrial control of a lucrative abortion industry’.65
  8. A.42 It was only after the backyard industry was dismantled through the provision of abortion services in the private and public health sectors that the policy aims of protecting maternal health and safeguarding the rule of law could be realised.
  9. A.43 By the end of the 20th century, Victoria, NSW, and Queensland had retained criminal laws that regulated abortion. Judicial interpretations of those laws allowed therapeutic abortions in some circumstances. Some states, such as South Australia, reformed their criminal codes broadly in line with the UK Abortion Act. In Western Australia, abortion became primarily a health law issue following law reform in 1998.66 A few years ago, the ACT completely decriminalised abortion by removing all references to it from the Crimes Act.

Late 20th Century—Emergence of Patient Autonomy

  1. A.44 It has already been noted that the medical profession exerted a significant influence on the development of abortion law in the UK and Victoria, regarding the restriction of the law in the 19th century and in its subsequent relaxation in the late 20th century.67 This ‘medicalisation of a crime’ makes doctors the gatekeepers of the law.68 Thus ‘a great social responsibility is firmly placed by the law on the shoulders of the medical profession’.69
  2. A.45 Sheldon writes that since the Abortion Act women in Britain generally have access to safe, legal services; however, the legislation itself represents only a partial decriminalisation as decision-making power rests with the doctor rather than the woman:

In becoming constructed in a medical manner, abortion is removed from the public sphere into a private realm where it can be regulated by experts who can lay claim to specialist medical knowledge.70

  1. A.46 In Australia the public funding of abortion services meant women could better afford therapeutic abortion but because the approval of abortion remains in the hands of medical practitioners, the diversity of medical attitudes towards abortion has a ‘profound influence’ upon its provision.71
  2. A.47 Medicalising abortion places it firmly within the general management of pregnancy and, as such, it is governed by ethical medical practice as a whole.72 The gatekeeping role brings with it its own set of dilemmas. Kerry Petersen describes a ‘wedge’ in the therapeutic relationship:

the ethical values of respect for autonomy and beneficence are undermined when criminal laws require a doctor to make a medical assessment based on legal grounds rather than the needs and best interests of the woman.73

  1. A.48 In practice, the gatekeeping role allows for wide variation because some doctors may deny abortions on the basis of their personal moral values, while others may perform or refer for abortions on the basis of a woman’s decision. Both of these circumvent the original policy intention.74
  2. A.49 Medicalisation has particular significance for women, as they tend to use health services more frequently than men. Historically, medical discourse has treated women as biologically unstable, psychologically or socially vulnerable, and therefore in need of protection and control.75 The practice of medicine and the ethical principles underlying doctor–patient relationships have moved on considerably in the past few decades.
  3. A.50 The right to self-determination in the medical context is drawn from the broader ethical value of autonomy. Personal autonomy is one of the guiding principles of medical law.76 Thus, any competent person has the right to make an informed choice to accept or forego medical treatment.
  4. A.51 Reproductive autonomy has been slower to develop as an accepted ethical principle; however, since the 1970s, as abortion became a mainstream medical procedure rather than an illicit act, community attitudes further shifted towards reproductive autonomy. It is likely that this in turn meant that reproductive autonomy became more institutionalised within the medical profession.
  5. A.52 With patient autonomy in the ascendancy, the past few decades have seen a stronger focus upon shared decisions between doctor and patient.77 As Kerridge notes, shared decisions involve a subtle but important shift in the traditional doctor–patient relationship. ‘Shared decision-making is difficult. Respect for patients’ autonomy does not necessarily imply a value-neutral role for health workers; but it does require a delicate balancing of roles.’78

Footnotes

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