By Margaret Kirkby
A case currently before the High Court has serious implications for women's access to abortion in most states of Australia. The case, CES & otrs v Superclinics & otrs, originated in the NSW Supreme Court in 1994. It is a medical negligence case brought by a woman, CES, against Superclinics Pty Ltd and several doctors who failed to diagnose her pregnancy.
Even when CES's pregnancy was finally diagnosed (by her local GP, not a Superclinics' doctor) she was told that she couldn't have an abortion as it was "medically unsafe". Both medically and in law this advice from the local GP was completely wrong. However, as a result of it, CES felt she had no choice but to continue the pregnancy. She now has a healthy child.
CES was seeking compensation for negligence by the clinic and its doctors but was denied it because, according to Justice Newman in 1994, her stated desire to have an abortion was a desire to do something which is "illegal". (The plaintiff also told the Superclinics' doctors when she first attended the clinic in 1986 that if a pregnancy was confirmed she wished to terminate it.)
Last year, the woman appealed Newman's decision in the NSW Court of Appeal. She won by a majority of three judges. However, of the three, two were only prepared to allow CES to recover the costs involved in the pregnancy and for going through pregnancy and birth. The major component of her claim, the costs of raising the child, was dismissed. Only Justice Michael Kirby would have allowed that part of CES's claim.
The High Court appeal
After the NSW Court of Appeal decision, Superclinics and the doctors involved appealed to the High Court of Australia. It is revealing that the doctors and Superclinics are prepared to incur the costs associated with a High Court appeal rather than pay any damages to CES. After all, it is likely that the legal costs would nearly equal the (limited) damages granted to CES by the NSW Court of Appeal. These doctors clearly don't want to admit their gross clinical incompetence.
It is also alarming that, because of the way in which court cases are titled, the doctors involved in the appeal to the High Court are receiving no adverse publicity. Instead, it is CES who is copping the flak, from the mainstream media in particular. For the record, the doctors appealing are Harold Anthony Nafte, Richard Roger De Montmarency Cattley and Gary John Baker.
The Catholic Church
With little warning, the Australian Catholic Health Care Association (ACHCA) and the Australian Catholic Bishops Conference lodged an application to be admitted to the High Court proceedings as an amicus curiae or "friend of the court".
It is clear that the Catholic Church carefully planned and timed its application. Their submission is 37 pages long, argues the case for admission in detail and clearly took considerable time to prepare. CES's legal team received a copy of the submission just two days before the High Court hearing was to commence on September 11.
The ACHCA and the Catholic Church submit that they are concerned about their potential liability if the hospitals they run continue to refuse to provide information about how and where to obtain an abortion, and if they continue to refuse to perform abortions.
The second, and major, part of their submission argues that both the Victorian Menhennitt ruling and the NSW Levine ruling (both are common law rulings which liberalise interpretation of the relevant Â鶹´«Ã½ of the Victorian and the NSW Crimes Acts) are invalid at law.
These arguments are utterly phoney, put together merely to give the Catholic Church standing in a matter in which it has no legal, moral or political right to participate. The church is simply hanging its hat on the erroneous assertion by Newman in 1994 that if CES had an abortion it would have been "illegal".
It is greatly alarming that the High Court judges' vote on whether the church should be admitted to the case was evenly split, three for and three against. Chief Justice Brennan, a practising Catholic who admitted during proceedings that he personally knew Catholic Bishop McKenna, used his casting vote to allow the church admission.
The implications of the arguments being put by the church, if taken up by a majority of the judges, are huge. If the judges rule that the Menhennitt and Levine rulings are invalid at law:
- access to abortion in both Victoria and NSW would be restricted immediately as interpretation of the law on abortion provision would fall back to those states' Crimes Acts;
- there would also be immediate restrictions on abortion access in Queensland since the 1986 common law McGuire ruling (which related to charges laid against abortion providers, Drs Bayliss and Cullen, after raids on Queensland abortion clinics in 1985) is built on the Menhennitt and Levine rulings;
- there would be a restrictive impact on abortion access in the ACT since the ACT Crimes Act contains provisions relating to abortion which are worded exactly the same as those in the NSW Crimes Act;
- while neither Western Australia nor Tasmania have a common law ruling, like Victoria, NSW and Qld, there would be a flow-on effect in these states in practice rather than in the legal sense; and
- as the South Australian and Northern Territory criminal codes have different provisions relating to abortion, they shouldn't be significantly affected; however, it is already more difficult to get an abortion in SA and the NT than in other states.
Pro-choice submission
Following the Catholic Church's intervention, discussion between abortion rights organisations resulted, on September 12, in a further amicus curiae application to the High Court by the Abortion Providers Federation of Australasia (APFA). Cathy Henry, (the solicitor who previously represented CES), Ian Temby QC and barrister Stephen Walmsley are representing APFA.
APFA argued that "if abortions are not given by those with appropriate skill and training, then women will inevitably seek abortions in any event but at great expense to their health and their families". It also argued that "until early this century, death from complications caused by illegal abortions was one of the most common causes of maternal mortality in Australia" and that "following the decision [by Justice Levine in the NSW District Court in 1971] there was a dramatic downturn throughout Australia in the rate of death from complications caused by illegal abortions".
The High Court granted leave for APFA to intervene but only allowed it until September 20 to lodge a written submission — substantially less time than the Catholic Church had. Nevertheless, the deadline was met. The High Court resumes sitting on this case on November 11.
Campaigning for repeal
It would be erroneous to assume that the High Court judges will decide against a woman's right to choose abortion. It is possible, if not clear, that a majority of the judges will rule that this is simply a medical negligence case and will decline to rule on the abortion laws issue.
What is clear is that CES, abortion providers and the women's liberation movement would not be so tied up with this case if there were no laws on abortion on the books in the first place. These laws must be repealed.
There is no case for the abortion operation to be singled out in the way it is in the states' Crimes Acts. An abortion, if performed in the first trimester of pregnancy, is a simple operation. It is also one of the 10 most common operations performed in Australia today. Abortion should be treated like any other medical procedure and covered by existing legislation governing the rights of a health care consumer to certain standards of care and to sue for medical negligence if necessary.
Since only women need to access this medical procedure, singling out abortion in any legislation, let alone in states' and territories' Crimes Acts or criminal codes, is discriminatory.
Keeping abortion in Crimes Acts or criminal codes places state governments in breach of the Convention for the Elimination of Discrimination Against Women (CEDAW). Article 2(f) of CEDAW states that signatories undertake to "take all appropriate measures, including legislation, to modify or abolish laws, regulations, customs and practices which constitute discrimination against women" (italics added).
The Women's Abortion Action Campaign (WAAC) urges all supporters of a woman's right to decide on abortion to join the campaign for the repeal of all abortion laws in all states and territories. An emergency public meeting will be held in Sydney on September 26, 7pm at Redfern Town Hall, 71 Pitt Street, Redfern. For more information, contact WAAC at PO Box A2233, Sydney South NSW 2000 or by phone/fax on (02) 9569 3819.
[Margaret Kirkby is a long term abortion rights campaigner and a representative of WAAC.]