Abortion Bill Loophole: "abortion on demand at any time during pregnancy"
MEMORANDRUM OF ADVICE RE ABORTION LAW
REFORM BILL 2008
As a matter of reality Clause 5 of the Abortion Law Reform Bill 2008 will create a situation in which abortion can be performed at any time during the pregnancy. The loophole is fairly similar to that created by the Menhennitt ruling (1969). After 24 weeks gestation a woman only needs to find a medical practitioner who is prepared to abort her even though there be no reason under Clause 5. In
The medical practitioner only needs a partner or colleague who is prepared to collude and say that he too believed it appropriate in all the circumstances to perform the abortion. If thereafter any questions are asked pursuant to some inquiry or otherwise, all that the two doctors need say is that they both believed the abortion was appropriate in all the circumstances.
Thereafter they can refuse to answer any further questions directed to the question of why they formed that belief on the grounds that any answer to the questions would be a breach of medical practitioner-patient privilege under the Evidence Act 1958. Thus the genuineness of their belief could not be tested.
In these circumstances there would be no evidence by which proceedings for professional misconduct could be brought under the Health Professions Registration Act 2005. Consequently unless the patient or the abortion-provider's staff are prepared to provide evidence that the abortion was performed without any reason at all, abortion providers will be able to perform abortions at any time without risk of proceedings before the relevant board.
As mentoned above, this obvious loophole in the law is somewhat like the situation which inadvertently developed after the Menhennitt ruling. Because the onus of proof was on the Crown, the abortion provider could assert the abortion was performed for serious risks but refuse to identify those risks because of the medical practitioner-patient privilege under the Evidence Act 1958. The Crown was then unable to prove that there were no serious risks to the woman's physical or mental health.
No doubt those who drafted the Bill wanted to place some limitation on abortions after 24 weeks gestation, but in my view the Bill will not be effective in producing that consequence. In reality, in
Charles Francis, AM, QC, is a former MP in the Victorian Parliament, and a former Chairman of the Victorian Bar Council. He has won settlements for women who sued their abortionists for failure to warn of the psychological trauma and the increased risk of breast cancer caused by abortion.
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