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According to Merit? : New fodder for an old debate

Every Issue

Cite as: (2002) 76(11) LIJ, p.82

The abortion debate is an old one. However, its recent decriminalisation in the ACT makes it an issue worth revisiting.

The rights of a foetus and the rights of a mother can come into conflict. The abortion debate has considered this issue at great length throughout history. It is a debate which is never short on emotion. In one corner of the ring we have the pro-life team fighting on behalf of the foetus, in the other corner is the pro-choice team, fighting for the mother.

Whether you fall in either of these corners, or somewhere in the middle, you are unlikely to move from that position greatly. Where you stand is no doubt the result of your education, religion, sense of morality and life experience. I do not for a moment assume that this column could uproot your ingrained values, nor should it do so. We all have a right to a conscience vote on this one.

However, I do propose to get you thinking about the future of abortion laws in this country. In late August, abortion was decriminalised via an amendment to the Crimes Act in the Australian Capital Territory (ACT). The Bill was narrowly passed by a parliamentary conscience vote.

Rightly or wrongly, women have always sought abortions despite the existence of criminal prohibitions. The new ACT law concedes to this reality.

The statutes in other Australian jurisdictions continue to be outwardly pro-life by criminalising abortion. However, the pro-choice team is kept satisfied by judge-made law which effectively permits abortions to take place without any criminal repercussions. What we are left with is a cosy situation in which neither side wins nor loses entirely.

In Victoria, abortion is still a crime punishable by up to 15 years imprisonment. (See ss65 and 66 of the Crimes Act 1958 (Vic)). Those administering abortion rely on statements made by Menhennit J in his direction to the jury in R v Davidson [1969] VR 667 at 672. The direction, now treated as a statement of Victorian law, allows abortions to be performed where there is danger to a woman’s life, or her physical or mental health. The equivalent New South Wales precedent, known as the Levine ruling, is even broader.[1] It also allows abortions to take place for economic and social reasons.

The Victorian and New South Wales Parliaments have been deafeningly silent in their failure to overrule this area of common law. The judicial rulings have been treated as good law for three decades now. With abortion being the second most common surgical procedure performed in Australia these days,[2] it is unlikely the more lenient common law position on abortion would ever be reversed in an Australian parliament.

The question is: in time, will these parliaments have to abolish criminal sanctions for abortion? In almost every circumstance, there would be a public outcry if a woman or her doctor were to be imprisoned under s66 of the Crimes Act (Vic) today. Arguably, such provisions are worthy of being brought to an end.

The ACT Parliament risked the wrath of some members of the electorate by decriminalising abortion. It was nothing short of a brave move by Canberra’s MPs in choosing to rock the abortion boat. The pro-life lobby will probably be furious. Nevertheless, it is a move which goes some way to validate the extremely difficult decision which countless women have faced over the centuries for a myriad of reasons.


MICHAELA RYAN is a lawyer working as a freelance writer, sessional tutor in the law faculty of Monash University and sessional lecturer in the School of Accounting and Law at RMIT.

[1] R v Wald (1971) 3 DCR (NSW) 25 per Levine DCJ.

[2] See or


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