O’Donovan, M. and Stuparich, J (eds), (1994) The Abortion Debate: Pro-Life Essays. ACT Right to Life Association, Canberra, Australia. pp151-171.
Greg Smith*
ABORTION is the only medical procedure which is specifically the subject of the criminal law in each Australian State and Territory. Yet with rare exceptions the abortion provisions are notable for their lack of enforcement.
New South Wales, which is the most populous State, also has the highest number of abortions, with approximately 30,000 in 1993 being the subject of Medicare claims and an estimated further 10,000 not the subject of claims under the abortion items in the Medical Benefits schedule. NSW also has the highest rate of Medicare-funded abortions. In 1990-91 NSW had one abortion for every 49 women of child-bearing age compared to 1 in 55 in Victoria; 1 in 53 in Western Australia; 1 in 67 in Queensland. Some more statistics: in 1990-91 in NSW there was 1 abortion for every 2.2 live births - a frightening figure.
The non-enforcement of the abortion laws has existed since the early 1970's. In the late 1960's and early 1970's there was a police purge against abortions. Many charges were laid against abortionists in both NSW and Victoria. The catalyst for the charges was the criticism by the Victorian anti-corruption campaigner, Dr Bertram Wainer, who attracted great publicity and death threats over his claims that senior Victorian and NSW police were receiving large bribes to protect abortionists, many of whom were doctors. His claims were in part substantiated, leading to some important convictions.
Dr Wainer later operated Victoria's largest abortion clinic, mixing with criminals and coming under scrutiny himself before his death in the late 1980's.
The enforcement of the abortion laws ground to a halt after liberal rulings by three trial judges - one in Victoria and two in NSW.
The more restrictive of the three, that of Mr Justice Menhennit in R v Davidson 1969 VR 667, essentially followed the ruling of MacNaghten J in the famous English 1937 case of Bourne, where Dr Bourne, an eminent obstetrician/ gynaecologist, carried out an abortion on a 14-year-old girl who had been raped by a group of soldiers. In that case he had ruled that abortion was lawful if continuance of a pregnancy in such a case would render the girl "a mental wreck". Whereas MacNaghten J had based this ruling on his interpretation of Section 58 of the Offences Against the Persons Act 1861, and the Infant Life (Preservation) Act 1929, the latter Act having no equivalent in Victoria, Menhennit J based his ruling on the obscure defence of necessity which I will discuss a little later. His Honour stated at pp671-672:
... for therapeutic abortion to be lawful I think that the accused must have honestly believed on reasonable grounds that the act done by him was necessary to preserve the woman from some serious danger. As to the element of danger, it appears to me in principle that it should not be confined to danger to life but should apply equally to danger to physical or mental health provided it is a serious danger not being merely the normal dangers of pregnancy and childbirth.
He then laid down the relevant law in these terms:
For the use of an instrument with intent to procure a miscarriage to be lawful the accused must have honestly believed on reasonable grounds that the act done by him was (a) necessary to preserve the woman from a serious danger to her life or physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail, and (b) in the circumstances not out of proportion to the danger to be averted.
He held that the Crown bear the onus of establishing that the operations were unlawful.
The evidence disclosed the accused was performing abortions on a regular basis. The jury acquitted him on all five counts.
In 1971, Judge Levine, a Chairman of Quarter Sessions in NSW, the equivalent today of a Judge of the District Criminal Court, applied the Menhennit ruling in the case of R v Wald and others (1971) 3DCR 25 but further liberalised it by stating:
In my view it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view would constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health. It may be that an honest belief be held that the woman's mental health was in serious danger as at the very time when she was interviewed by a doctor, or that her mental health, although not in serious danger, could reasonably be expected to be seriously endangered at some time during the currency of the pregnancy, if uninterrupted. In either case such a conscientious belief on reasonable grounds would have to be negatived before an offence under section 83 of the Act could be proved.
The five accused were acquitted of a total of 15 charges - three of them being charged with 10 counts each. Despite calls urging an appeal against what was an unacceptably liberal ruling, no appeal was lodged by the Attorney General.
In 1982, in the highly publicised case of K v Minister for Youth and Community Services (1982) 1NSWLR 311, Mr Justice Helsham, Chief Judge of the Equity Division of the NSW Supreme Court, without hearing argument as to the correctness of the Levine ruling, said he was content to accept it as correct. He thereafter authorised an abortion for a pregnant 15-year-old State ward, which had been opposed by the Minister, Kevin Stewart.
In an emotion-charged case, Helsham J refused to allow lawyers for Kath Harrigan, Secretary of the NSW Right to Life Association, as tutor for the unborn child to be heard in the proceedings and promptly dismissed her subsequent application for an injunction. An appeal by Mrs Harrigan to the Court of Appeal was dismissed for lack of standing as were applications for special leave to appeal to the High Court of Australia and the Privy Council.
I return to the abortion cases of the 1970's. In 1972 Judge Levine died during the trial of another notorious abortionist Dr George Smart. Judge Goran presided over the re-trial and also gave a liberal summing-up to the jury, undermining what was a powerful Crown case, with the result that the jury acquitted of one charge and could not agree on 22 charges. The Attorney General decided not to proceed again on the 22 charges. Dr Smart could not stay out of trouble. He was suspended for 12 months from medical practice by the Medical Disciplinary Tribunal for circulating a letter to thousands of doctors advertising his ability as an abortionist and his knowledge of how to get around the law. His appeal to the Court of Appeal failed, with Mahoney JA confirming that abortion on demand was illegal. He again stood trial in 1981 on one charge involving a late-term abortion described by the Committing Magistrate as "barbaric". The young woman required a hysterectomy. The jury convicted. Dr Smart, who was by then old and sick, was released on a bond and did not proceed with a subsequent appeal.
The Levine ruling which was officially reported in the District Court Reports is not binding on any other judge or magistrate but it has been given far greater prominence than it deserves by Ministers of successive governments leading (prior to the Newman ruling) to regular statements by Ministers in Parliament that abortion is legal in NSW.
Whilst this may reflect the de-facto situation, largely as a result of the non-enforcement of the law, it does not reflect a proper interpretation of section 83 of the Crimes Act, which like most other Australian abortion provisions, has its genesis in section 58 of the Offences Against the Persons Act 1861 (UK) which carries a penalty of up to penal servitude for life. Section 83 states:
Whosoever: Unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing;
or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable for penal servitude for 10 years.
To properly interpret such a provision it is appropriate to examine the intention of Parliament in enacting this section. It is clear that in 1861 in the UK, and 1900 in NSW, these anti-abortion provisions had two purposes: (1) to protect the life of innocent unborn children and (2) to protect their mothers against risk to their lives or health occasioned by abortion.
This view is supported by statements by Judges who have interpreted these and similar provisions. For example, Mr Justice MacNaghten in the case of R v Bourne (1938) 3 ALL ER 615 at 620 stated:
With regard to any other operation on the human body, obviously no difficulty arises. The surgeon is justified in cutting off an arm or a leg, or taking out an eye, if, in his honest opinion, he thinks it is desirable to do so for the sake of the patient's health. The difficulty that arises in the case of abortion is that by the operation the potential life of the unborn child is destroyed. The law of this land has always held human life to be sacred, and the protection that the law gives to human life extends also to the unborn child in the womb. The unborn child in the womb must not be destroyed unless the destruction of that child is for the purpose of preserving the yet more precious life of the mother.
In Royal College of Nursing v Department of Health and Social Security (1981) ALL ER 545 at 554, Lord Denning MR, one of the outstanding British jurists of the 20th Century, said:
Throughout the discussion I am going to speak of the unborn child. The old common lawyers spoke of a child en ventre sa mere. Doctors speak of it as the foetus. In simple English it is an unborn child inside the mother's womb. Such a child was protected by the criminal law almost to the same extent as a new born baby. If anyone terminated the pregnancy and thus destroyed the unborn child he or she was guilty of a felony and was liable to be kept in penal servitude for life (see the Offences Against the Persons Act 1861) unless it was done to save the life of the mother (see R v Bourne (1938) 3 ALL ER 615; (1939) 1KB 687). Likewise anyone who assisted or participated in the abortion was guilty, including the mother herself.
More recently in Queensland Judge Maguire in his lengthy but in many ways disappointing judgement in R v Bayliss and another (1986) 9 Qld Lawyer Reps 8 stated at 45:
It would be wrong indeed to conclude that Bourne equates to carte blanche. It does not. On the contrary, it is only in exceptional cases that the doctrine can lawfully apply. This must be clearly understood.
The law in this State has not abdicated its responsibility as guardian of the silent innocence of the unborn. It should rightly use its authority to see that abortion on whim or caprice does not insidiously filter into our society. There is no legal justification for abortion on demand [emphasis added].
Necessity has been defined by eminent 19th Century lawyer Stephen as follows:
An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for the purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained.
The most recent decision on necessity by the peak Appellate Court of a Commonwealth country was the decision of the Supreme Court of Canada in Perka v The Queen (1985) 14CCC (3d) 385, which arose out of a cannabis importation.
The Court unanimously held that necessity was a general common law defence and held by a majority that the correct test was whether the accused had acted in "an urgent situation of clear and imminent peril when compliance with the law is demonstrably impossible."
A similar view had been expressed by a majority of the same Court in an abortion case, Morgantaler v The Queen (1975) 20CCC (2d) 449, when they held that the only time necessity could be considered as a defence in the procurement of a miscarriage was in the case where the pregnant woman was in "imminent peril".
In the leading English decision on necessity, London Borough of Southwark v Williams (1971) 2 AllER 175, the Court of Appeal considered a case where squatters claimed the defence of necessity allowed them to trespass in disused Council premises. The Court held that although the law recognised the doctrine of necessity it was confined within very narrow limits e.g., urgent and transient situations of great and imminent danger to life in which the law permitted some encroachment on private property. Homelessness did not constitute the sort of emergency in which the doctrine could be invoked.
In a colourful and oft-quoted judgement Lord Denning MR eloquently explained why necessity had to be strictly limited in the following terms:
The doctrine so enunciated must, however, be carefully circumscribed. Else necessity would open the door to many an excuse. It was for this reason that it was not admitted in R v Dudley and Stephens (1884) 14QBD 273, where the three shipwrecked sailors, in extreme despair, killed the cabin boy and ate him to save their own lives. They were held guilty of murder. The killing was not justified by necessity.
Similarly, when a man who is starving enters a house and takes food in order to keep himself alive - our English law does not admit the defence of necessity. It holds him guilty of larceny. Lord Hale said that ‘if a person, being under necessity for want of victuals or clothes shall upon that account "clandestinely and animus furandi" (with the intention of doing so), steal another man's food, it is felony.’ The reason is because, if hunger were once allowed to be an excuse for stealing, it would open a way through which all kinds of disorder and lawlessness would pass.
So here if homelessness were once admitted as a defence to trespass, no one's house would be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry. Each man would say his need was greater than the next man's. The plea would be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless, and trust that their distress will be relieved by the charitable and the good.
Applying these principles, it seems to be in the circumstances, of these squatters are not such as to afford any justification or excuse in law for their entry into these houses. We can sympathise with the plight in which they find themselves. We can recognise the orderly way in which they made their entry. But we can go no further. They must make their appeal for help to others, not to us. They must appeal to the Council, who will, I am sure, do all it can. They can go to the Minister, if need be. But, so far as these courts are concerned, we must, in the interest of law and order itself, uphold the title to these properties. We cannot allow any individuals, however great their despair, to take the law into their own hands and enter these premises. The court must exercise its summary jurisdiction and order the defendants to go out.
These prophetic words foreshadowed what happened once necessity was said to be a defence to abortion. The Australian courts have accepted Lord Denning's advice to stop squatters, picketers, prison escapees and thieves - but they have manifestly failed in their "responsibility as guardians of the silent innocence of the unborn".
Judges and lawyers have bowed to contemporary liberalism and failed the unborn badly. The pious pronouncements about the need to protect the innocent unborn have been negatived by spinelessness in some or prejudice in others in favour of allowing abortion to become another form of birth control. Judges and lawyers have significantly contributed to a state of anarchy so far as the unborn are concerned. Australia sorely needs judges with courage who are willing to protect the sanctity of human life, so long recognised by the courts.
I contrast the comments of Sir Harry Gibbs, then Chief Justice of the High Court of Australia in the case of Kerr (ex rel AG Qld) v Miss T 57 ALJR 283 to those of Mrs Justice Heilbron in C v S (1987) 2WLR 1108.
Both of these cases involved unmarried men who contributed to the pregnancy of women friends.
In Kerr, the evidence as summarised by Sir Harry Gibbs established that the pregnant woman was "perfectly healthy" and had made no complaint of difficulty with her present or an earlier pregnancy, and the only reason she gave for her wish to have an abortion was that it would be "best for everybody".
Clearly Mr Kerr's lawyers were able to establish at least on the balance of probabilities that the proposed abortion was illegal. But Sir Harry Gibbs would have none of this. Despite conceding that "in appropriate cases the Court will grant an injunction to restrain a breach of the criminal law" he said this was "an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually inadequate penalty ... or to cases of emergency."
What could be more a case of emergency than to save the life of an unborn child?
How else, to paraphrase Maguire DCJ, could the law carry out its responsibility as guardian of the silent innocence of the unborn? Wasn't this an opportunity for the Court to "rightly use its authority to see that abortion on whim or caprice does not insidiously filter into our society"? If, as concluded by Maguire DCJ there is no legal justification for abortion on demand, a view shared in the Bourne, Wald, Davidson, the Smart Disciplinary Appeal, a New Zealand case, Woolnough and the Canadian Morgantaler case, how could Sir Harry Gibbs ignore the evidence of an intended abortion on demand? He ignored these principles by ruling that the legality of an abortion was a question solely for a jury in a criminal trial. He said he could not assume a jury would convict the woman and if he did so assume, he would interfere in the most serious way with her liberty of action. He later said:
There are limits to the extent to which the law should intrude upon personal liberty and personal privacy in the pursuit of moral or religious aims. These limits could be overstepped if an injunction were to be granted in the present case.
These comments ignored the applicant's wish to stop the death by abortion of an unborn child, the main reason the anti-abortion law existed. Sir Harry imposed his views on abortion rather than applying the law to stop an illegal abortion. Despite the abolition of the death penalty, which under common law and under Article 6 of the International Covenant on Civil and Political Rights could not be carried out on a pregnant woman so as to save her unborn child, Sir Harry by his decision imposed the death penalty on the unborn child of Mr Kerr and Miss T.
The case of C v S (supra) involved an application for an injunction brought by the father of an unborn child aged between 18 and 21 weeks since conception. One ground for the injunction was that the unborn child was capable of being born alive within the meaning of section 1(1) of the Infant Life (Preservation) Act 1929 and to abort such a child would be a crime. Remember that the British Abortion Act is far more liberal than the law in Queensland and most other Australian States and Territories.
Heilbron J at p1120 noted that in considering the question of criminality "first of all, that this is a matter of the utmost urgency and importance." Compare this with Gibbs J's quip about moral and religious aims. A little later she stated:
An injunction of the nature sought is rare. Indeed, a case of this sort is rare. Paton's case was, I understand, the first to be heard in this country. Such an injunction should not issue in any event, on evidence which is conflicting, or uncertain as here, and, in my opinion, for such an injunction to lie there must most importantly, be strong evidence against the proposed defendant and virtual certainty that what is being complained of constitutes a defined criminal offence. Every case depends upon its own facts and circumstances and none more so than this, for the graver the offence the more vital it is, before an injunction issues to interfere with the operative procedures being prepared because of the risk to the health of Miss S, that it is shown that an offence is virtually certain to be committed, if no injunction issues.
She had already found that the bulk of medical evidence supported a finding that the child was not capable of being born alive within the meaning of the section.
She concluded at 1121 that she was not satisfied that a potential crime had been proved and therefore refused an injunction.
Although this case had a similar outcome to Kerr, in my view Mrs Justice Heilbron acted in a far more judicial way than Sir Harry Gibbs in that she had regard to the evidence before her and did not indulge in belittling the applicant's motives. Sir Harry had a far stronger anti-abortion law to work with, but he declined to do so. The C v S case had a happy ending. Miss S changed her mind about having an abortion and later allowed Mr C to adopt the child.
Civil Courts in Australia are showing a realism and a willingness to expand the rights to sue for injuries occasioned whilst unborn.
In 1971 the Victorian Full Supreme Court in Watt v Rama (1972) VR 353 held that a child who at or after birth suffered injuries caused by the negligence of another in driving his motor vehicle, before the child was born, was entitled to sue the driver for negligence.
Another Victorian Supreme Court Judge, Tadgell J, in Kosky v The Trustees of The Sisters of Charity (1982) VR961 extended the right of a child to sue for injuries sustained through the negligence of St Vincent's Hospital, Melbourne, in giving his mother the wrong blood 8 years before the child was even conceived, which caused the child to be born with serious disabilities.
In 1991 the NSW Court of Appeal in X & Y v Pal (1991) 23 NSWLR 26 reached a similar conclusion, allowing a child born with severe disabilities to sue a doctor for damages, where the doctor had failed to diagnose and treat syphilis suffered by the child's mother, before the child was conceived.
Also in 1991, the NSW Court of Appeal in Lynch v Lynch (1991) 25 NSWLR 411 upheld a claim for damages by a child against her own mother for pre-natal injuries suffered as a consequence of the mother's negligent driving of a motor vehicle on a farm. The vehicle was insured. The Court increased damages to $3,035,640 from $2,850,000 for Nicole Lynch who suffered asymmetric spastic quadriplegic cerebral palsy.
Grove J, the trial judge, had nicely described the period of the child's development in the womb as one of "the stages of its journey through life".
He found that the unborn child's personality was identifiable and recognisable at the time of the injury. He could see no justification for depriving the child of a right to damages where the negligent party was her own mother.
Clarke JA, in the Court of Appeal stated that there were powerful reasons, why as a matter of policy, the child should be able to mount an action. One of them was contained in the much quoted statement of Lamont J Lamont, in Montreal Railways v Leveille (1933) 4DLR 337 at 344:
If a right of action be denied to the child it will be compelled without any fault on its part, to go through life carrying the seal of another's fault and bearing a very heavy burden of infirmity and inconvenience without any compensation whatsoever.
Another, which is complementary to the first, is that no consideration of justice operates in favour of singling out children whose injuries were inflicted prior to birth, as the one class of individuals who are denied access to the fund (the Third Party Insurance Fund).
These decisions support the views expressed in an article published in (1974) Law Quarterly Review by PA Lovell and RH Griffith-Jones entitled "The Sins of the Fathers - Tort Liability for Prenatal Injuries" in which they concluded:
The principal conclusion is that an action should lie for negligent or wilful acts or omissions causing the injuries to the child. Such should be the case irrespective of whether the acts or omissions in question took place prior to, simultaneous with, or after, conception.
The Australian Medical Association and the Faculty of Law, Australian National University, are currently reviewing the position of unborn children who suffer injuries in the womb. Hopefully they will avoid recommending a limitation of right of action. They must be closely watched.
In this paper I mention in passing that the common law has for centuries recognised the rights of unborn children to inherit and to be granted real and personal property.
Logically a legal system which protects unborn children's inheritance, property and the right to damages for personal injuries caused by negligence, and which also contains criminal sanctions intended to reinforce the right to life of the unborn including those conceived in vitro, should in fact strongly protect the unborn from deliberate acts like abortion.
In the scale of things, deliberately causing injury or death is more serious and carries heavier punishments than negligently causing them.
The time is long overdue for the Australian Judiciary, encouraged by lawyers and all people of goodwill, to reinforce protection for the unborn, and in the typical Australian way, to give them a fair go.
A mother's womb should no longer be the most dangerous place for an Aussie child.
On 18 April 1994 Mr Justice Newman, a Judge of the Common Law Division of the Supreme Court, handed down a reserved judgement in the case of CES v Superclinics Australia Pty Ltd which dealt with an action by a woman seeking damages for negligence against a medical clinic and a number of doctors working at the clinic who had failed to diagnose that she was pregnant.
She claimed that had her pregnancy been confirmed she would have obtained an abortion. Justice Newman ruled that as the pregnancy caused no serious danger to her life, her physical or mental health, an abortion performed on her would have been illegal and that the law does not allow a person to recover damages for being deprived of an illegal abortion.
Miss S and her boyfriend (the second plaintiff in the case) had sexual intercourse a number of times before 17 October 1986, a day on which she was due to menstruate. After her period was about six weeks late she went to the Broadway Medical Clinic for a pregnancy test.
The first test was negative. About four weeks later on the 30th December 1986, still not having menstruated, she required another pregnancy test which the doctor refused. A week later, about to depart for a Queensland holiday, she saw another doctor at the clinic who dissuaded her from a further pregnancy test but prescribed an oral contraceptive pill.
Miss S then went to Queensland for two weeks holiday with her boyfriend (the second plaintiff).
On 23 January 1987, still awaiting her period, she returned to the medical clinic where another doctor took her history and took blood for a pregnancy test. This test was positive but when she rang the clinic a week later she claimed she was told it was negative.
Approximately 2 months later, still awaiting her period, Miss S saw her local GP who referred her for an ultrasound test which confirmed she was pregnant and that her pregnancy was of 19.5 weeks duration.
It was common ground that it was medically unsafe to have an abortion at that late stage.
Miss S gave birth to a healthy child on 30 August 1987.
As to Miss S's intention, Newman J found that had the pregnancy been confirmed at a time when an abortion was safe, she would have arranged to have an abortion.
The defendants all argued that Miss S was claiming for the loss of an opportunity to perform an illegal act and that she was not entitled to damages at common law. His Honour in considering the legal questions raised, stated at page 5 of his judgement:
Central to the contentions of the defendant is that abortion in New South Wales is still a criminal offence. Section 82 of the Crimes Act 1900 provides that it is an offence for a pregnant woman to unlawfully use any means with the intention of procuring a miscarriage. Section 83 of the same Act provides that if any person unlawfully uses any instrument or other means with intent to procure an abortion, that person also commits an offence.
Newman J then stated what he saw as the test for a lawful abortion:
In order for an abortion for the termination of a pregnancy to be lawful it is necessary that the surgeon conducting the operation must be able to form an honest belief on reasonable grounds that the operation was necessary to preserve the woman involved from serious danger to her life or her physical or mental health which the continuance of pregnancy would entail.
However, that description does not involve the normal dangers of pregnancy and child birth. It is also the law that in the circumstances the danger of the operation was not out of proportion to the danger intended to be averted. See R v Davidson (1969) VR 667 at 671-672; R v Wald (1972) 3 NSW DCR 25 at 29.
His Honour's formulation follows the Menhennit ruling in R v Davidson. Judge Levine in the NSW case of R v Wald had also followed that ruling but watered it down by adding,
In my view it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view would constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health.
In my view Newman J by making no reference to these additional comments of Judge Levine, rejected them, as had other judges before him (Cameron Smith J in R v Smart in 1981, Maguire J in R v Bayliss and Cullen in 1986).
Newman J continued at page 6:
To make an abortion lawful in New South Wales there must be an element of serious danger as I have described above where one is considering the other in terms of either the physical or mental well being of the first plaintiff.
He stated at page 7 that on the evidence there was no suggestion that her continued pregnancy caused a danger to her physical health.
In reviewing the evidence concerning danger to her mental health, he made critical remarks about the evidence of Dr Edith Weisberg, the Medical Director of the Family Planning Association who has attracted recent prominence over her proposals to run tests on the abortifacient drug RU486.
Newman J stated:
Dr Weisberg, whose evidence was that had Miss S's pregnancy been established during a time when it would have been safe to terminate, it would have been appropriate to do so, used criteria in so determining which fell short of the test of lawfulness stated in Wald and Davidson. Dr Weisberg of course did not see [Miss S] while she was pregnant nor did Dr Maguire, psychiatrist whose report was tendered.
In these circumstances as I have said, it is the evidence of those who saw her at that time which is of importance in determining the issue.
His Honour then went on to find that the defendants had established Miss S's pregnancy did not involve a serious danger to her mental health.
He therefore concluded that had Miss S's pregnancy been terminated, that abortion would have been unlawful and would have constituted an offence under either Sections 82 or 83 of the Crimes Act.
He went on to find that any abortion during the first 14 weeks of the pregnancy, when it would have been safe to perform an abortion, would have been so out of proportion to any danger to the mental or physical health of Miss S caused by the pregnancy that such a procedure could not be described as lawful. Anticipating the controversy of his decision, His Honour observed that he was determining this case according to law.
It is not my function to express any view on the moral issues which arise here. I am of course aware that there are distinct and powerful views in the community in this State both for and against abortion. Any decision which I arrive at in this case is one according to law and I wish to make it plain that I am not expressing any view relating to the moral issue which is of concern to the community.
He then went on to consider the consequences of his finding that an abortion on Miss S would have been unlawful. He reviewed several High Court decisions and then said:
Of course in the instant case no illegality occurred. In effect what [Miss S] is alleging is that because of a failure to diagnose the pregnancy she lost the opportunity to perform what I have held to be an illegal act.
At page 17 he concluded that "the common law does not categorise the loss of an opportunity to perform an illegal act as a matter for which damages may be recovered. If a breach of duty does not result in a plaintiff suffering damage according to the law, that plaintiff has no remedy in tort."
He then ordered a verdict for the defendant with costs.
Miss S has now filed an appeal against His Honour's ruling. The grounds of appeal, in my view, seek a finding that abortion on demand, if performed by a medical practitioner, is lawful.
It is most unlikely that the Court of Appeal would support such an interpretation, which flies in the face of long established precedent, weak and all as it is.
* Greg Smith LLB is a barrister and president of the Right to Life Association (New South Wales) Inc.
1. An earlier version of this paper was delivered to the 4th World Congress for Life at New College, University of New South Wales, Sydney, on 9 April 1994.