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The right not to kill

Frank Brennan |  08 September 2008

Abortion Rights Banner Medicare-funded abortion is readily available to women in all Australian jurisdictions. In some states, the criminal law on abortion has been developed by the judges. It is known as common law. The majority of Australian parliaments have now changed or at least clarified the common law, ensuring the legality of widespread abortion practices.

Victoria is about to follow this trend, debating the Abortion Law Reform Bill this week. But the pro-abortion lobby has decided to take things three steps further than other jurisdictions like Western Australia, the ACT and the Northern Territory have in recent years. It is quite a try on, under cover of the claim that the Victorian bill 'acknowledges and reflects community attitudes and current clinical practice'.

The Bill seeks to break new ground by: permitting abortion, regardless of the interests of the foetus, up to 24 weeks; dispensing with the need for informed consent provisions which would give all women the opportunity to consider their decision, and which would protect vulnerable young women being pressured into having an abortion by relatives or those who have abused them; requiring health professionals with a conscientious objection to abortion to participate in abortion in some circumstances, and requiring doctors with a conscientious objection always to refer a woman seeking an abortion to another doctor known not to have a conscientious objection.

This third and most novel item of the trifecta is to be enacted in the flash new rights jurisdiction of Victoria with its Charter of Rights and Freedoms which boasts that 'A person must not be coerced in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.'

I will offer a comment on each item of the Victorian trifecta.

Late-term abortions

The Victorian Government's Department of Human Services publishes a detailed manual for dealing with road trauma. When emergency staff are dealing with a pregnant woman in a traffic accident, they have to consider if the foetus is viable. The manual advises: 'Foetus is not viable pre-22 weeks (probably 24 weeks). If the foetus is beyond 24 weeks gestation, obstetric backup at a Major Trauma Service is mandatory.'

It is now commonplace for 23-week foetuses to be born and nurtured in Melbourne hospitals. Peter Costello is not alone in his weekend quandary: 'I can't believe that there is a proposal to make abortion legal as a matter of course up to 24 weeks, when babies are born at less than 24 weeks. We will have a situation in this country when in one part of a hospital babies will be in humidicribs being kept alive and in some other part it will be legal to be aborting them.'

Deregulated abortion services which have no regard for the interest of the foetus should be restricted once the foetus is viable.

Informed consent

In Western Australia, informed consent is defined by statute for the good of the woman and for the good of the doctor, requiring that 'a medical practitioner has properly, appropriately and adequately provided her with counselling about the medical risk of termination of pregnancy and of carrying a pregnancy to term'; 'a medical practitioner has offered her the opportunity of referral to appropriate and adequate counselling about matters relating to termination of pregnancy and carrying a pregnancy to term'; and 'a medical practitioner has informed her that appropriate and adequate counselling will be available to her should she wish it upon termination of pregnancy or after carrying the pregnancy to term.'

The Victorian Law Reform Commission saw no need for such provisions, viewing abortion as if it were simply an elective surgical procedure.

Conscientious objection

The ACT is the Australian jurisdiction with laws most like those being proposed in Victoria. The ACT amendments were carried in 2002 with a majority of only one vote after various safeguards for health professionals were written in to the Medical Practitioners (Maternal Health) Amendment Act.

Those safeguards are maintained in the ACT Health Act, including provisions that 'No-one is under a duty (by contract or by statutory or other legal requirement) to carry out or assist in carrying out an abortion'; and 'A person is entitled to refuse to assist in carrying out an abortion.'

One would have thought the right to freedom of thought, conscience and belief in the Victorian Charter of Rights and Freedoms would have counted for something when the legislators were considering the plight of those doctors and nurses who in good faith regard the abortion of a viable foetus as the moral equivalent of murder.

Ms Maxine Morand, the Victorian Minister for Women's Affairs, has taken the view that all Charter rights and freedoms of all individuals are irrelevant when it comes to abortion because s.48 provides: 'Nothing in this Charter affects any law applicable to abortion or child destruction'.

Presumably the Victorian Parliament could also pass a law prohibiting discussion about abortion if it so wished, without need for any assessment of the freedom of expression, given that such a prohibition would be contained in a law applicable to abortion. This makes a mockery of the Charter.

Hopefully the novel Victorian trifecta will be struck down by Victorian legislators regardless of their views on the liberty of women to exercise an untrammelled prerogative to terminate the life of a non-viable foetus with the cooperation of health professionals whose consciences are untroubled.

In a pluralistic democratic society, the law should still have some work to do in protecting vulnerable women, concerned, conscientious health professionals and viable unborn children.

Frank BrennanFrank Brennan SJ AO is a professor of law in the Institute of Legal Studies at the Australian Catholic University and Professorial Visiting Fellow, Faculty of Law, University of NSW.

Flickr image by ge'shmally



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Submitted comments

If 'surely the right to freedom of thought, conscience and belief should count for something', Fr Brennan would be acutely aware it certainly didn't cut any ice 40 years ago when the hierarchy of the church actually voted for and the majority of its membership called on the then Pope Paul V1 to rescind the ban on artificial contraception. Pope Paul V1 defied his own hand-picked Vatican Birth Control Commission in that regard.

That said, I abhor what the Victorian government seeks to do to widen the horror of abortion. For any community to countenance abortion up to 24 weeks is simply barbaric but, sadly, seemingly beyond the comprehension of Attorney General Rod Hulls. He,of all people, ought to be recognising the value of informed consent.

But the very debate should serve to bring us back to a recognition of the basic need for the introduction of a comprehensive national sex education program to be taught in all schools...a program that unabashedly focuses on sex...its joys and its dangers. Ignorance, and the denial of reproductive information devalues motherhood and deprives women and girls of the right to know how their bodies and emotions work...and the value of relational dignity that should go hand in hand with that.

Brian Haill 08 September 2008

This Bill if enacted would be an appalling abuse of the rights of the unborn, their mothers and health professionals. Thank you Frank Brennan for speaking out in this typically helpful way.

Steve Curtin SJ 08 September 2008

An excellent outline of the Victorian government's attempt to remove all possible restraints on abortion. What a shocking situation when this government will deny a woman any form of counselling at this critical time in her life. A shocking situation when a woman is denied any protection against coercion.

Fr Frank in other instances over the years you have called a press conference to highlight critical situations.

Can we have a press conference on this critical occasion,please?

Pat Healy 08 September 2008

Thankyou Frank, for the clarity with which you have addressed this deplorable reflection 'of community attitudes and current clinical practice.' Who has the right to determine when, or whether, the creative process is in a state of viability or unviability?

Jenny Price 08 September 2008

Section 5 of the Abortion Law Reform Bill 2008 proposes that abortions after 24 weeks and up to term can be performed by a registered medical practitioner if the registered medical practitioner “reasonably believes that the abortion is appropriate in all the circumstances” (Section 5.1a) and consults another registered medical practitioner who has the same belief.

For abortions after 24 weeks the doctors do not need to be independent of one another. For instance, they could both work at the same abortion clinic. It is not necessary that one be a specialist in obstetrics or gynecology or that either of them have a minimum level of training or experience, the permission given to them is open-ended and as a consequence almost impossible to police, prosecute or prove.

There is no requirement for independent assessment of the psychological needs of the mother. There are no regulations to govern private abortion providers whose financial interests are served by recommending and performing abortions.

Michael Smith SJ 08 September 2008

Thank you, Frank, for speaking out and writing so clearly and concisely on an issue which is so important for all adult Victorians. I hope your article will be widely circulated.

Maryrose Dennehy 08 September 2008

The point about counselling, any counselling, surely should be that it provides accurate information on options and supports the right of the person being counselled to make their own decisions. Women who are 'counselled' by those opposed to women's right to make their own decisions are being short-changed. They deserve better.

Hospital staff opposed to lung cancer surgery because they believe the patient brought the disease upon themselves by smoking, do not have the privilege of saying they will not assist lung cancer victims. Why should it be any different for medical staff who oppose women's right to abortion? Disruption of surgical procedures is a tactic anti abortionists have previously used in this country and overseas. It's a horrible thing to do to clients in addition to being unprofessional.

Anna McCormack 08 September 2008

Thank you, Frank, for pointing out the problems involved with the three new provisions introduced by the proposed legislation. May the legislators hear your warning and refuse to pass the bill.

John Wilcken 08 September 2008

The dictionary (e.g. the Macquarie) gives several definitions of 'viable'. In all except one, it means capable of living or functioning, which means that if something is not viable there is something wrong with it.

Only when it applies to the foetus is there the additional requirement, that it must be capable of living outside its natural environment. Only in the case of the foetus can the term 'unviable' be used of something that is perfectly normal.

It's not fair; it's like calling me unviable because I couldn't live on Mars. I couldn't live there because I don't belong there; a young foetus can't live in the outside world because it doesn't belong there. There's no suggestion that there's anything wrong with it.

At the least, the words 'viable' and 'unviable' should be used in quotes when they are applied to a normal healthy foetus.

Gavan Breen 08 September 2008

The article states the legal and political situation very well, Frank, and calls attention to the shoddiness of the proposed bill.
I add: It is a very momentous step for the Parliament to reverse a 2000 year tradition whereby the state has sought to give legal protection to human life from its earliest beginnings on the basis of the continuity of that human life with the life emerging from the womb. In this proposed legislation, the Victorian State is partially abrogating that responsibility entirely (up to the 24 week limit) and partially (after 24 weeks) transferring it to the medical profession.

The proposed bill allows abortion on demand for the first 24 weeks of pregnancy. Any measure of restriction after that time is limited to the requirement that the agreement of two medical practitioners be obtained. In most medical practices this would simply amount to a doctor’s going down the corridor to obtain a signature from a like-minded colleague. The requirement that the abortion be considered ‘appropriate in all the circumstances’ is so vaguely worded and undefined as to offer no control whatsoever.
The Bill requires medical personnel who have a conscientious objection to abortion, when approached for an abortion, to refer a woman to a colleague who does not have a similar objection. For the practitioner who has the conscientious objection this procedure will not relieve their conscience but in fact, on any understanding of ethics—and I suspect of legal cooperation—render them a direct accessory to the action that violates their conscience. In other words, the State will be requiring them to act against their conscience, a very grave matter indeed.

Brendan Byrne, SJ 08 September 2008

Fr Brennan unfortunately has chosen to use the terminology of the pro-abortionists' arbitrary and artificial moral distinction between a "viable" and a "non-viable" baby. Thus apparently conceding by implication to the pro-abortionists' assertion that nobody has any right to object to the murder of a "non-viable" (less than 22 weeks old) baby "in a pluralistic democratic society".

Whenever speaking of abortion it is necessary to re-state the fact that deliberate procured abortion of a baby of ANY age is the objective moral equivalent of any other wilful murder of an innocent human being, and directly contrary to the principles of pluralism and democracy. If we fail to state this clearly, pro-abortionists will carry on as if we agree with them that at least some abortions are morally OK and should be legal.

I am sure Fr Brennan did not intend this, but I fear some people reading his article may conclude that as long as the proposed Victorian law is slightly tweaked to make it no more or less permissive of abortion than the ACT law, he will be satisfied!

Brian Haill, it is untrue to claim that the hierarchy of the Church has ever voted for the reversal (as if that were possible) of the infallibly taught truth that contraception is immoral. Pope John XXIII when setting up the Commission you refer to, and Paul VI when enlarging it, both publicly emphasised that there will never be any possibility of the Church "rescinding" this fact of morality,(as if it were simply an arbitrary "ban").

Ronk 09 September 2008

As usual, on Eureka Street as elsewhere, the debate seems to be dominated by men.

It is very easy for a man to take the moral high ground on abortion. Yet generally speaking, this is a subject that does not, and can not, impact a man to the extent that it impacts a woman ... physically, socially, emotionally, mentally, spiritually.

I invite male advocates on both sides of the divide to simmer down and only contribute if they have something helpful to say. It is possible to have a strong opinion, but still respect women's dignity, and the complexities involved when facing this terrible choice.

Hunter Winsome 09 September 2008

Hunter Winsome, yes abortion does "impact(s) a woman ... physically, socially, emotionally, mentally, spiritually". Check out Melinda Tankard Reist's book Giving Sorrow Words for just how damaging abortion can be to women.

What I find distressing is that women have become so disengaged from their bodies and their extraordinary life-giving power that they treat their fertility as either inconsequential or diseased and the results of their love-making with contempt. Abortion is truly physical, social, emotional, mental, and spiritual impoverishment.

Rather than lobbying for unrestricted abortions women would be better served by respecting their procreative capacities and building up a society where motherhood is supported and celebrated.

Clara Geoghegan 09 September 2008

I recently asked a senior health professional: 'When is a foetus non-viable, is it before the 23rd or 24th week of gestation.' His answer: 'No, when it's been aborted.'

In 2006 the pro-abortion Center for Reproductive Rights convinced Colombia's constitutional court to overturn its pro-life law because Colombia had signed up to assorted rights' treaties. Quite naturally among these statements of human rights was the prohibition of discrimination against women. The Colombian government was thus persuaded to adjust its domestic pro-life law in order to adapt to unconnected 'treaty' obligations.

Frank's got it right. A non-binding charter of rights and freedoms especially one whose committee consists of non-elected members from Victorian non-government pro-abortion organisations can claim violation of human rights obligations if the government rejects its 'treaty obligations ... reductio ad absurdum'.

Claude Rigney 09 September 2008

Ronk, if you are saying Paul VI taught INFALLIBLY that the use of artificial contraception was wrong, you are mistaken. It was not an infallible teaching and was never meant to be ex cathedra. If I remember correctly, JPII later wanted to assert that it WAS infallibly true but the present pope advised him against it.

Also, you seem to be unaware that the Vatican in 1997 produced a doc for priests called Guidelines to Confessors in Matters of Sexuality in which it reaffirmed the Church's teaching against the use of artificial contraception but also acknowledged couples' conscience ("invincible ignorance"). In those specific instances the doc stated "there is error but no sin." Check it out. That does not fit your idea of infallible teaching on contraception.

Mike Yates 09 September 2008

Thanks, Frank, for highlighting some of the huge here. A few further points:

Recent surveys have shown that, while most Australians want abortion to be available, a large majority are concerned about the rate of abortion in our country. This legislation does nothing to help reduce the abortion rate. Similarly, when many women speak of opting for abortion because they felt they had no real choice (see for example the sample of stories from Australian women in Giving Sorrow Words), this legislation offers no new choices or alternatives to abortion, simply offering the same poor choice.

As for those respondents who are concerned about men being involved in the abortion debate, the ready availability of abortion gives men another rationale for not having to take responsibility for consequences of their behaviour.

Finally, Mr Brumby insists that this law is simply codifying current practice. One might hope that governments would take greater leadership. It would be a sad day if Mr Brumby sought to apply this to all areas under his care. Imagine codifying current environmental practices and then seeking to wash one’s hands of further responsibility for the environment.

Thanks again, Frank, for the clear analysis.

Robin Koning SJ 10 September 2008

Thanks Fr Brennan for the good article. I am appalled by the ignorance of our Vic MPs. Both the opposition leader and even a Nationals MP have been caught out thinking that somehow decriminalisation would stop women from being prosecuted and sent to prison. If this is how ignorant they are...have we any reason to hope?

The contraceptive revolution and mentality is the root cause of the enormous number of abortions we see today...just ask the converts. They will tell you..."I thought sex was just sex, and never linked it to babies!"

Getting contraception wrong...puts us in the era that demands abortion. And someone told me last week, the generation that kills its children, will be killed BY its children. Thankfully, the euthanasia bill will be squashed on Wed 10 Sep.

Luke McCormack, Australian Family Association, Vic 10 September 2008

Professor Frank Brennan's comments are like a welcome sun shining on a disturbed, misguided group . The group need to think out the cosequences of their proposals. Our greatest sin as a human race is to ignore fundamental values. These include respect for all creation and love and care for one another. Ignoring natural laws such as the need to rest or the respect for human life will inevitably bring about a serious consequence.

D Russell Ebbs 11 September 2008

Hunter Winsome - abortion does impact on men in many ways, not the least because half the unborn children slaughtered by this grisly procedure are boys.

Mike Yates - Ronk is right. The teaching in Humanae Vitae us infallible, not because the encyclical letter itself is an ex cathedra pronouncement (which it isn't), but because the teaching within it has been upheld by the Church's teaching office at all times and in all places and is therefore an exercise of the ordinary and universal magisterium which engages the charism of infallibility.

Sylvester 11 September 2008

Mike Yates, as Sylvester said, infallibility is by no means limited only to ex cathedra statements of the format set out by Vatican I, but in the great majority of cases it consists, as Vatican II stated, in the rdinary and universal magisterium, especially the formal teaching statements of the Pope.

Of course the guidelines to confessors say that where a penitent is invincibly ignorant that what he has done is sinful, "there is error but no sin". This applies to ALL acts which are objectively sinful, not just to contraception. JP2 was certainly not watering down in any way the fact that contraception is a gravely immoral act.

Ronk 13 September 2008

Our parliamentarians make the rules for the masses. This is what we mistakenly call democracy. But in the original democracy of Athens, there were many, quite rightfully, excluded from voting. In our Australian democracy fools and perverts are bound by law to vote.Be that as it may,the only way we can try to prevent such legislation as the abortion issue taking place is to vote for a party and /or member who sides with one's beliefs. We had such a party once but Catholics who had 'made it' derided it. Had it still existed as a power, then we would not have the barbarians at our gate. Ask Bob to speak to God about it !!!

philip herringer 24 September 2008

this is a very serious situation and it is good that u ppl are caring

Clarissa 11 February 2009

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