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ACT Right to Life AssociationN E W S L E T T E R |
ACT euthanasia bill postponed
On 4 December The Canberra Times reported that Michael Moore MLA had postponed bringing forward his Medical Treatment (Amendment) Bill 1996 for debate in the ACT Legislative Assembly until 1997. Mr Moore's decision came shortly after six church leaders came out in opposition to Mr Moore's Bill.
The church leaders were Anglican Bishop of Canberra and Goulburn George Browning, Catholic Archbishop Francis Carroll, Presbyter Officer of the Presbytery of Canberra region of the Uniting Church Ron Reeson, senior minister of the Canberra Baptist Church Thorwald Lorenzon, senior minister of the Presbyterian Church of St Andrew Gordon Fullerton, and Assemblies of God Pastor Keith Ainge.
Then president of the ACT Right to Life Association, Jeremy Stuparich, wrote to all the Members of the Legislative Assembly on 11 August, and later on 12 September attaching a legal opinion on Mr Moore's Bill, to ask the MLA's to oppose the Bill.
Later in September Mr Stuparich contacted a number of organisations including the Australian Medical Association and the ACT Hospice to alert them to the implications of Mr Moore's Bill.
New president of the ACT Right to Life Association, Nicola Pantos, wrote to ACTRTLA members in mid November to ask them to contact their local MLAs to urge opposition to the Medical Treatment (Amendment) Bill.
The legal opinion obtained by ACTRTLA on Mr Moore's Bill stated that the Bill would confer on a patient an unlimited right to pain relief, even when the point has been reached that drugs are not required to relieve pain and it is reasonably clear that additional drugs will themselves cause the death of the patient.
Among other problems, this would make it almost impossible, in practice, to secure the conviction of any health professional who causes the death of a patient by the administration of an overdose of a pain relieving drug. It will thus eliminate, for a health professional who favours euthanasia, the risk of criminal sanctions even where a death has been deliberately caused.
In Brief
n Kevin Andrews MP's Euthanasia Laws Bill was passed by the House of Representatives on the evening of 9 December 1996. It is expected that the Bill will be debated in the Senate early next year and that the vote will be very close. The opportunity to make submissions to the Senate Legal and Constitutional Committee on Mr Andrews' Euthanasia Laws Bill closed on 12 December. Extracts from Mr Andrews' second reading speech are on page 6.
n In October the Association made a submission to the Model Criminal Code Officers' Committee Secretariat on a Discussion Paper the Committee had prepared on a Model Criminal Code. The chapter in which abortion law was discussed was, ironically, titled "Non Fatal Offences Against the Person".
The Committee, which reports to the Australian Committee of Attorneys General, had proposed a substantial liberalisation of Australian law to allow, for example, abortion on the grounds of the unborn child being found to have a disability. Despite proposing such major changes, the Committee declined to consider the ethics of abortion, stating that "any consultation engaged in by this Committee on the general principle of whether abortion should be permitted as a matter of principle would be unproductive ...".
n In September 1996 the Association made a submission to the Review of the Australian Aid Program to urge that abortion and abortifacient drugs not be funded from the aid program. The submission, prepared by secretary Jacqueline Donohue, urged that aid dollars be spent on alleviating poverty, rather than on negative and potentially coercive population control programs..
The Catholic Bishops and the Superclinics High Court Abortion Case
Dr Warwick Neville spoke at the Association's Annual General Meeting on 22 October 1996 on the Catholic Bishops' involvement in the Superclinics abortion case. Dr Neville is Head of the Research Department at the Australian Catholic Bishops' Conference. Extracts from Dr Neville's address appear below.
"What I'd like to do this evening is to just share with you, in three parts, the background to and some of the reasons for the intervention by the Australian Catholic Health Care Association and the Australian Catholic Bishops' Conference in the recently settled abortion case.
"The three parts relate firstly to some basic background, secondly to the application by the parties to the proceedings to apply to the High Court for the case to be heard by the High Court and then thirdly what transpired during the hearing on the 11th and 12th of last month and perhaps then some brief comments on where that leaves us."
"By way of background the facts are fairly unremarkable in one sense ... in that it concerned a young lady who was sexually active and went to one of these day/night clinics in downtown Broadway in Sydney.
"As it happened she ended up visiting them on many occasions, and on each occasion she was told either that she was not pregnant or generally that not only was she not pregnant, but on occasions when tested and found that she was, she was told that she wasn't. Now, after some time she ultimately went to see her own GP who conducted an examination and found that she was pregnant.
"By this stage she was nineteen and a half weeks ... She, not surprisingly, sued the range of doctors whom she had seen at the clinic and she sued the clinic itself, claiming negligence because she claimed that had she had diagnosed her pregnancy much earlier she would have had an abortion. She now wanted compensations for the "damage" she had suffered in being forced to carry this child to term, being forced to deliver the child and thirdly for the costs of raising the child, who by this stage - at least when the action was first begun - was approximately 8 years old."
"The case went to trial. It was heard by Mr Justice Newman in the Supreme Court of NSW, who delivered judgement on 18 April 1994."
"... Mr Justice Newman said well look, I consider that the law is correctly stated in the Wald decision [a NSW case which stated that an abortion can be lawful under certain circumstances, namely to protect the mental or physical health of the mother], but I find that the medical evidence, even taken at its highest, shows that this woman was in no ways likely to suffer any injury outside the normal dangers that are associated with carrying a child and giving birth to a child.
"And therefore, he said, the Crimes Act of NSW still applied, and therefore what she had proposed to do was to have an abortion that was illegal. The law did not recognise that she could be compensated for contemplating doing an act which would have been illegal."
"...the woman appealed this decision. There were rumours circulating at the time, and many of them are still circulating, that the woman was being funded by Family Planning Associations. But of course one does not comment upon rumours.
"In any event she did appeal and it came before the NSW Court of Appeal. It was heard by three Judges, Mr Justice Kirby as he then was president of the NSW Court of Appeal - and has since become a Judge of the High Court, Mr Justice Priestley and Mr Justice Meagher.
It was never argued before Mr Justice Newman, or before the Judges in the Court of Appeal, that the Wald and Davidson cases [allowing abortion in some circumstances] were flawed and should be overruled. So, ... they all proceeded on the basis that these decisions in the late sixties and early seventies were correctly decided.
"And they said that there was also this general defence of necessity. That is, if necessity dictates that a certain thing must be done, even if it means breaking the law, you can do it and you can be absolved of your actions.
"The NSW Court of Appeal delivered their judgement on 22 September last year. As I said they accepted the Wald and Davidson decisions, but they did a few other things, and this was courtesy primarily of the leading judgement of Mr Justice Kirby. He said look, there is no logical reason for saying that the Wald ruling should be confined to allowing an abortion just when in the course of pregnancy a woman's social, economic or medical reasons would dictate. There's no logical reason for confining it to that.
"And in an exercise of crystal ball gazing he said there is nothing logically to prevent a woman and obviously her medical practitioner contemplating and taking into account that at some future time the impact of bearing this child and raising this child could psychologically damage the woman. So therefore, why not just extend the Wald and Davidson tests and look into the future and if you think that she may be damaged psychologically, medically, socially, economically sometime in the future she can have an abortion now.
"So there was a rather extensive extension to the ruling. And also he said that it was not wrong therefore to compensate a woman for damage suffered as a result of bringing to birth and raising a child whom she would otherwise have had terminated had she had the opportunity. So therefore she should be compensated for the loss of opportunity of having an abortion. So therefore we have the first recognition of what's termed a wrongful birth claim."
"I should add that it was not a unanimous judgement in the Court of Appeal. Mr Justice Kirby's is the longest judgement. Mr Justice Priestley in effect, in substance, agreed with Mr Justice Kirby.
"Mr Justice Meagher wrote a very short and a very strongly worded dissent. Among other things, he noted the impact of allowing damages for a claim of this kind would have on the child. He said that no doubt some of the "friends" of the mother or someone else would be likely to alert this little girl to the fact that the mother had sued the doctors and clinic on the basis that, `really I didn't want to bring this little one to birth.'
"That's by way of background to the case of the various rulings leading up to the matter in the Higher Court."
"On 15 April 1996 the High Court granted special leave [for the case to be heard] and said yes, this is a case of major moment, the hearing was set down for 11 and 12 September."
"Notice of the intention to intervene in the High Court case was given on behalf of the Health Care Association and the Bishops' Conference. All lawyers who had been consulted in relation to this case, and those who had not but who had volunteered comments, said that apart from the case in the early 80s called the Tasmanian Dams Case, that is the first time that anyone has been granted standing as an amicus curiae - the technical name for a friend of court.
"We gave notice to the other parties in August that we were intending to make an application to the High Court that there were others who had an interest in this matter. We were told, not surprisingly, that our application would be opposed. And it was, violently, from many quarters on both sides of the bench.
"The arguments put to the High Court on 11 September by the Bishops and the Health Care Association were that we have an interest - and in this respect it was especially the Health Care Association which had an interest because its members basically run health care facilities. On one reading of the Kirby judgement if that judgement stood there could be a duty imposed on any health care provider, any health care practitioner, any pregnancy counselling organisation, to include in its advice, advice in relation to abortion as an option.
"So we said, `look we have a vital interest because if this stands it could drastically affect the health care economy - specifically the Catholic health care economy.' So we were able to satisfy the interest point ...".
"We also said look, no one is going to put to you the following arguments: no one has challenged the correctness of the Wald and Davidson rulings; no one has challenged the general doctrine of necessity upon which the de-facto economy of abortion rests; no one has put to you the incredibly complex and bizarre situation of the law in relation to the unborn child, who is recognised in law for some purposes but not for others; and of course no one is going to put to you anything in relation to the impact of this ruling on the Catholic healthcare economy.
"So we thought we had a few gaps to fill. As it turned out, the High Court agreed, amidst some drama."
"... the following day [12 September] the Abortion Providers Federation of Australasia turned up. They said well look, we wouldn't be putting any argument to this court which would not be put by any of the other parties to it, namely the other doctors and the clinic. So they admitted they had no gap to fill. But they said we have a vital interest in this case, and the learned justices said yes well, what is that? They said `our livelihood is at stake.' They were as frank about it as I have described.
"They even went further and said well, the other doctors here, they do other things. We do nothing else but specialise in abortions.
"Even though the previous day when our application was made, ... our application took three hours - that included breaks by the Court too as they adjourned and considered their decision. The Abortion Providers Federation, they made their application which went for about 15 minutes and they were granted standing on the spot. That's not meant to reflect adversely on the High Court - it was a case of justice being seen to be done.
"In any event the case then proceeded for the next day and a half, in the course of which written and oral submissions were provided. It was unclear by the end of second day whether or not any of the interveners were going to be admitted to present oral argument to the Court ... In the event the case was adjourned and due to resume on 11 November."
"... other parties had given notice that they were planning on joining the fray, namely the Women's Electoral Lobby and ... the Public Health Association."
"...but as no doubt you have read or heard the case has been discontinued. It is purely speculation the basis upon which it was settled ... But there was no doubt that in a word the Abortion Providers Federation, based upon what they had put in their written submission, were not in a position to argue any of the points which we had raised in our submission."
"... suffice it to say that we're well prepared for next time."
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