Abortion – the medical termination of a pregnancy – is one of the most contentious areas of law-making. Abortion is a controversial issue that polarises attitudes and opinions. Those who support legalised abortion are broadly described as the ‘pro-choice’ lobby. They argue that a woman has the right to terminate a pregnancy, particularly if it is unwanted or poses some risk to her health. Those who oppose abortion describe themselves as ‘pro-life’. Their arguments against abortion are drawn from religious doctrine, or focus on the rights of the unborn child. Until the late 20th century, abortion was illegal in all States of Australia. Some jurisdictions allowed conditional abortion, allowing it in cases where carrying the child to term would endanger the life of the mother.
In Victoria, abortion was illegal under Section 65 of the Crimes Act (1958). Bringing about an unlawful termination of pregnancy was an indictable offence that carried a maximum of 10 years’ imprisonment, though it was left to the courts to determine what was “unlawful”. Abortion was effectively legalised in Victoria by the ‘Menhennitt ruling’, a judicial precedent from a 1969 criminal case against Dr Charles Davidson. This precedent established that Victorian doctors were allowed broad discretion in deciding whether the continuation of a pregnancy might jeopardise the physical, psychological and social well being of a female patient. So, while Victorian State legislation declared abortion illegal, a judicial precedent made it very difficult to prosecute doctors who carried out abortions. Section 65 of the Crimes Act became effectively redundant and abortions continued to be performed widely in Victoria.
In September 2007 the Victorian attorney-general, Rob Hulls, asked the Victorian Law Reform Commission (VLRC) to provide advice on reforming abortion law. Hulls’ referral sought advice on the removal of abortion from the criminal code, as well as clarification on how the law should operate with regard to abortion. Because abortion is a divisive issue, this referral generated a significant amount of media scrutiny and public debate. Religious leaders, women’s rights advocates, civil libertarians and sundry other groups engaged in campaigning and protesting – including some rowdy demonstrations at the offices of parliamentarians who were outspoken on the issue. A bill was introduced into the State Parliament that amended the Crimes Act and clarified the conditions under which doctors could perform terminations, particularly after the 24th week of pregnancy.
Because abortion is an issue determined by personal values rather than political ideology, the Brumby government determined that the bill would be decided by a conscience vote. After several amendments and quite emotional speeches from legislators, the bill was eventually approved by both houses and passed into law as the Abortion Law Reform Act (2008).