Queensland's abortion law shortfall

19 Comments

Last week the Queensland courts acquitted two young people of procuring an abortion.

The case and verdict deserve reflection. Those who, like me, believe that respect for life in its beginnings and its end is important for the health of society, will ask how helpful it will be to focus on legislation in order to commend these values.

Tegan Leach and Sergie Brennan were charged under a Queensland law that forbids abortion except when the health or psychological welfare of the mother is at stake. Believing it was not the right time to bring a child into the world, the couple had imported an abortifacient pill from the Ukraine. They claimed they did not know its use was illegal. The police, visiting the house on other matters, discovered evidence of the drug, established why it had been imported, and pressed charges.

It is not known, of course, on what grounds the jurors found the couple not guilty. Most comment on the case came from those who are in favour of abortion on demand, and so are opposed to the Queensland legislation. They applauded the verdict but, like more dispassionate observers, recognised that the decision left uncertain the legal status of doctors and others who participated in abortions.

The case and its outcome suggest that in Australia the cause of respect for human life, including that of the foetus, may not be advanced by pressing for stronger legislation or stronger enforcement of existing law.

To rely on legislation in areas where community opinion is sharply divided comes up against a dilemma. Relatively strong laws, like those regulating abortion in Queensland, will either not be enforced, or their enforcement will appear arbitrary, and as a result undermine support for the values they try to enshrine.

In the Queensland case few people would have hoped for the conviction and jailing of the couple. Whatever we might think of their project and motivation in large ethical terms, they were young, attractive, naïve, and came accidentally to the notice of the police.

The use of the law in this case only highlighted the fact that many other Queenslanders procure abortions in other ways without anyone being prosecuted. The prosecution of this case with its consequent humiliation of the accused therefore seemed harsh and arbitrary.

If they had been convicted, those pressing for abortion on demand would have had a martyr, and the law itself would have come to seem harsh even to those opposed to abortion on demand.

The case might lead us to ask under what conditions it is helpful to focus on legislation to deal with behaviour which we believe to be detrimental to society.

Certainly legislation that penalises behaviour detrimental to society can sometimes be helpful. Laws against speeding are a good example. The penalty will deter some people, and the existence of laws will educate others and change their attitudes. So once it is conceded that abortion is detrimental to society, the desire to make strict laws covering it is not unreasonable.

But if legislation is to achieve the goals it aims at, it must enjoy public support. In the case of abortion the public view appears to be that abortion is regrettable, but that for good reasons it is justifiable. What counts as good reasons is only loosely specified.

This fluidity means that when a case is brought under the law, the accused will inevitably win sympathy, the law will appear to be restrictive, and pressure will grow to weaken it further. Without strong public support, strong legislation will carry with it the loose ends of its own unravelling.

Those who believe a good society must be built on respect for human life at its beginning and its end must work to change public attitudes. This will necessarily be a slow task. If it is to be successful, such an approach needs to be based on a respect for freedom, and not simply on an appeal to authority or fear.

In particular, it must be based on respect for the freedom of women whom child bearing and rearing touch most intimately. To respect human freedom involves commending an attractive vision of human life in which it will seem natural to nurture life once conceived.

A community that proposes such a vision must embody it, particularly in its commitment to support mothers in need and to demand economic structures that support humane values.


Andrew HamiltonAndrew Hamilton is the consulting editor for Eureka Street. He teaches at the United Faculty of Theology in Melbourne. 

Topic tags: Andrew Hamilton, Queensland abortion case

 

 

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A beautifully balanced and thoughtful comment, Andrew.
Patricia | 21 October 2010


Fr Hamilton, a truly remarkable article - congratulations!
David Wall | 21 October 2010


One wonders how it is possible to acquit the couple of procuring an aborion when they procured an abortion. That is not to say that they should be treated harshly.

Fr Hamilton appears to be saying that the law must reflect popular opinion and practice. Most Australians are opposed to abortion-on-demand but that is precisely where we are headed and have already arrived there with the recent Victorian legislation and, in practice, throughout Australia. There is a growing unease in the population, especially among the young, about abortion, both the practice and the extent it has reached. None of this disquiet is reflected in recent legislative developments which are all to the contrary.

Speeding, drink driving, illegal drug taking, tax evasion, racial discrimination, child abuse, child pornography and other socially-detrimental activites are widely practised in this country. Should we, on that account, repeal restrictive laws in these areas and rely on changing attitudes alone?

Law does have educational value. Abortion should be retained in the criminal code so that, even though the punishment be light and maybe even waived in the case of people in real difficulty, it will signal formally that there is something wrong with the killing of the unborn.

If legal protection is withdrawn from one class of humanity - the unborn - it is only a matter of time before agitation begins to remove it from the next class up - new-borns and infants. The first moves towards infanticide - again in the name of 'compassion' and 'freedom-to-choose' - are already occurring under the influence of the ethics of Peter Singer. Indeed, it is difficult to see how it can be opposed philosophically once abortion up to and including birth is admitted. Once the inviolability of human life is compromised at some arbitrary developmental point it is impossible to protect it at any point.

Fr Hamilton says that changing public attitudes must be based on freedom, not authority or fear. But these are not the only means of building a good society. People need to be educated and encouraged to live according to reason and responsibility, to do that which is right and just, even at personal cost.

Sylvester | 21 October 2010


All forms of abortion are a great offence to God who gives us each a Soul. No-one has a 'right' to abortion - ever.Because of the Judeo Masonic and Protestant naturalism, they don't recognise the Social Kingship of Our Lord, Jesus Christ.




Trent | 21 October 2010


This case has affected me this week, and not so much the case itself but how groups in the community have responsed and 'used' the case to further their own agenda of abolishing the legislation. They forget the gravity and complexity of reaching a decision to abort a child.

Broadly, while I think it’s unhelpful to treat women who choose abortions as criminals, it also seems simplistic to push to the other extreme of abortion always being about personal choice. If it’s only ever about a woman’s personal decision-making, where do we as a society – family, friends, neighbours, citizens – take responsibility and show concern, not only for the just-conceived, but for the women whose are left with such a heavy decision? It is – as the article has said much more succinctly – something we must all be part of if we respect life.


Clare | 21 October 2010


Congratulations, Andy.
A view on abortion for people of faith that respects and weighs the roles of law, human freedom,and public opinion.

John | 21 October 2010


Sylvester argues well an alternative case to mine. I suspect, though, that we may have more in common than first appears.

My argument is not against the validity of all legislation that is not supported by public opinion.I agree with Sylvester's reasons for supporting such legislation. But when a society is divided on social issues, not all legislation designed to achieve good goals in fact achieves them. My argument is that if legislation is counterproductive in undermining the goals that it is designed to achieve, those who support the goals should not spend too much energy focusing their attention on legislation.

I believe that this is the case in the Queensland legislation on abortion for reasons that I proposed. Sylvester offers an alternative account which will also help readers to reflect on the matter.

My argument on the importance of appealing to freedom was slightly different than Sylvester's account of it. I was not endorsing freedom of choice as the way of changing positions, but saying that we should focus on offering attractive reasons why people they should choose life in the face of the costs of such decision. Ultimately they will choose one way or another. And not all arguments for life are presented attractively.
Andy Hamilton | 21 October 2010


A very balanced and intelligent article, on a pretty difficult topic, which perhaps unfortunately, has become the . It is good that there is law on the books about this, but they are un-enforeable in Australia. so we need to be careful not to go backwards.There is hudge social ambivience about abortion, and we need to tap into what we can work with. The current comments contain a spectrum of opinion, and they are all correct in their own way! There were two interesting articles in The Australian at the w/e from young women, and they summed up well the present social concensus, which we need to listen to and try to understand:

1) If a couple/woman wants her pregancy , then `it` is a baby, right from the beginning.

2) If a couple do not want the pregnancy, then `its` status is more ambivalent: there is a living organism within an unwilling woman, perhaps analagous to a tumour.

3) It is better to abort than bring an `umwanted` baby into the world; all babies should be dearly loved and an unloved baby is such a tragedy for it that the situation must be avaoided.
There are obviuosly several logical inconsistencies in this concensus, but it is what we need to deal with. But it is not all negative; essentially people care about the baby, and care about the mother, but find the balance too difficult to strike. Perhaps we all do!
Eugene | 21 October 2010


I like the gentle reasoning of your article. Freedom necessarily means bearing responsibility too. As a mother of two children and a husband booked in for a vasectomy finding out I was pregnant was the last biological roll call, which after careful consideration and consulting with my husband, I decided to end.

It is incredulous that anybody would force me to allow a baby to grow, give birth to and adopt was not within me to do. And to put a baby in the already overburdened social services for untold suffering - out of sight out of mind.

It doesn't work like that. I love children but I also believe in a joyful loving committment to children. Because of the anachronistic patriarchal laws on abortion there has been immense unnecessary suffering put on women, including denial of decent medical services.

Every woman has different circumstances.

We know historically that desperate to not continue a pregnancy women die.(see present UN figures)

We know that Church and State has a damning record on its treatment of children which leaves permanent damage psychologically and materially.
Every woman needs to be respected and given options and not be called 'immoral' and/or a Criminal for dealing with common reproductive events in a life-time.

I only hope the law in Qld will be sent to the Law Reform Commission as the Christian Fundamentalists are dangerously close to being theocrats and not democrats-opressors of women not liberators.
Julie | 21 October 2010


An article in the latest issue of the Queensland-based "Catholic Leader", written by Dr David van Gend, Queensland Secretary for the World Federation of Doctors who Respect Life", might be helpful. Dr van Gend writes:

"The existing Queensland law on aborion maintains a consistent message to adults that intentional violence to their offspring is never justified, whether before or after birth. ...Consenting adults who conceive a child have a duty of care to their child that cannot be abrogated. ...One way or another, the law must deter adults from taking a life that is not theirs to take. ..."

Dr van Gend proposes that "The law would achieve its goal of deterring abortion if the penality was directed against the doctor who performs an abortion, who knows he is ending an innocent life, who knows that almost none of the abortions are medically or legally justified, and who profits from his actions. ...the pro-life movement prefers that no penalty be directed against the woman - who in many cases suffers a penalty in her own body and heart as the second victim of abortion, and in many cases is pressurised into having an abortion she never really wanted."
Sylvester | 21 October 2010


In answer to Julie's comments on the justification of abortion: Christ was once asked, "How can we show our love for you Lord?" Part of His response was: "When I was a stranger, you let me in". His answer here, I believe, refers also to the unborn child as being that stranger.
Peter Flood | 21 October 2010


Life is indeed precious, but I would beg those with black and white views of this difficult area to think of one particular group of mothers. The almost universal employment of ultrasound can reveal babies with clearly non-survivable conditions such as anencephaly and gross cardiac abnormalities, before half the pregnancy has elapsed. Do we expect all these mothers to sit through four or five months of pregnancy knowing their baby will die shortly after birth?

Some extraordinary souls may choose to do so; for many the long ordeal will be unimaginably distressing. Perhaps only women who have gone through pregnancy might fully comprehend their plight. A compassionate answer for such parents, such as early induction of the cherished but not-to-be life, cannot in my view, be denied.
Henry | 21 October 2010


Witches were burned in the 1500's and before.

De la demonomanie des sorciers (On the Demon Worship of Sorcerers)
Bodin's history of witchcraft persecutions was first issued in 1580. Perhaps Bodin's most controversial statement was his recommendation of torture, even in cases of the disabled and children, to try to confirm guilt of witchcraft. He asserted that not even one witch could be erroneously condemned if the correct procedures were followed, suspicion being enough to torment the accused because rumours concerning witches were almost always true. Some scholars have attributed Bodin's attitude towards so-called witches as part of a populationist strategy typical of mercantilism.
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I assume the above quote (Wikipedia) means that supposed witches had access to knowledge about drugs to control fertility.

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telfer cronos | 22 October 2010


Thanks for the sensitive and balanced article, Fr Hamilton. Eugene's comments are, to me, particularly apt. The practical issues are in conflict with ethical and emotional considerations, and in a very strong, tragic manner. As a feminist, I would prefer that the law not interfere with a woman's right to decide with her own body, but I recognise and treasure life, therefore life must be protected. Is it not really up to everyone of us to ensure that women are better informed, better supported, better understood, and that men also take a greater responsibility for their part in the 'game' of procreation? And if unexpected or ill-planned outcomes occur, by choosing to act supportively rather than punishing and criminalising the parents, could we not have contributed to another path for the unborn foetus? If a child is born unwanted, I believe that it is that child's enormous tragedy, and therefore abortion is an act of mercy. Mostly parents see a birth as a logical outcome of their love, and therefore welcome it. That two young people should be so pessimistic about the world that they don't see a future for their offsprings in it, is an indictment for the world that we have created, or rather, the society that we live in. If we, as society, treasured life fully, as we should, issues such as abortion or euthanasia would hardly need to be discussed.
Eveline Goy | 22 October 2010


As the father of a daughter who was faced with the likelihood of not being able to have children; now to witness the joy she and her husband are experiencing in her pregnancy, now into its third month, I feel pain when I hear young couples deciding that it is not the right time to bring a child into the world.

My wife and I had three children and welcomed them plus one we lost in utero, with open arms and love. We had to make great sacrifices for them so they would have productive lives (and still do!). Abortion is a sad option indeed. I commend Andrew on his thoughtful essay. I support Eveline Goy's response too.

To want to "Get our lives back" is quite a selfish response indeed. Sadly it's all too common these days.
Gavin | 22 October 2010


I read Fr Hamilton's article on Sat Oct 23 and I guess by this time the caravan has moved on to some other perennial ethical controversy.

It seems to me there are always certain fallacies that emerge in such discussions.
One is what I call the Aristotelian fallacy - if people know what is good they will do it and if it is bad they will avoid it. Sorry Aristotle,human nature is not built that way.

We can construe bad things, eg killing a prison guard, as good if it means avoiding a bad thing, ie escaping the gallows.
The second fallacy is: ethical behaviour can be legislated for. Fr Hamilton over much of his writings has shown that society just doesn't work thay way. Despite his best endeavours many of his readers and commentators just don't get it.

The third fallacy is that human nature is consistent. Dr Frank Knopfelmacher, a sociologist at Melb Uni, pointed out at the height of the Vietnam War that the people most opposed to the war were on the whole those in favour of abortion, while those in favour of the war were vehement in their opposition to abortion
Uncle Pat | 23 October 2010


Thanks for the sensitive and balanced article, Fr Hamilton. Eugene's comments are, to me, particularly apt. The practical issues are in conflict with ethical and emotional considerations, and in a very strong, tragic manner.

As a feminist, I would prefer that the law not interfere with a woman's right to decide with her own body, but I recognise and treasure life, therefore life must be protected. Is it not really up to everyone of us to ensure that women are better informed, better supported, better understood, and that men also take a greater responsibility for their part in the 'game' of procreation? And if unexpected or ill-planned outcomes occur, by choosing to act supportively rather than punishing and criminalising the parents, could we not have contributed to another path for the unborn foetus? If a child is born unwanted, I believe that it is that child's enormous tragedy, and therefore abortion is an act of mercy.

Mostly parents see a birth as a logical outcome of their love, and therefore welcome it. That two young people should be so pessimistic about the world that they don't see a future for their offsprings in it, is an indictment for the world that we have created, or rather, the society that we live in. If we, as society, treasured life fully, as we should, issues such as abortion or euthanasia would hardly need to be discussed.
Eveline Goy | 23 October 2010


A well balanced article, thanks Andrew. One feels for the public humiliation of this couple who have been charged with this 'offence' which is carried out privately by many other people in our society. It is a grey area and one where individual freedom of choice is appropriate according to ones ethical principles and/or beliefs.
Gwenneth | 24 October 2010


Thanks Julie for providing some balance to the discussion. Uncle Pat, you have quoted Prof Knopfelmacher's comments in support of your view that humans are frequently inconsistent. I agree that human thinking is often inconsistent but dispute the example you provide. On the contrary, I believe the link between people's views about the American invasion of Vietnam and women's right to choose abortion are quite consistent. Those who opposed the war and support women's right to choose are supporting people's independence and autonomy and right to live free in both cases. Those who supported the American War, inflicting untold suffering on the Vietnamese people (even today) had scant regard for human life. Nor do they when they deny women's capacity to make decisions about our lives - it's about control and the right of outsiders to inflict their politics on others in both cases.
AnnaMack | 24 October 2010


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