The High Court has just finished hearing argument in two cases challenging Tasmanian and Victorian laws which prohibit protesting within abortion safe access zones. The basis of the challenge is that the laws are unconstitutional because they impermissibly burden freedom of political communication.
At the same time, Queensland lawmakers are considering provisions which would create similar safe access zones around places where abortions are performed. I’m on record for the view that the Queensland provisions, if enacted, risk a finding that they are unconstitutional.
There is, however, another provision in the Queensland Termination of Pregnancy Bill that has escaped attention so far. The provision is section 6(3), which says that in an emergency a medical practitioner may perform a termination on a woman who is more than 22 weeks pregnant if it is necessary to save the woman’s life or the life of another unborn child.
The evident principle here is that saving someone’s life is of such overriding importance that it may justify performing an abortion. Section 6(3) recognises that in some tragic circumstances a woman may be pregnant with two or more unborn children and aborting one child may be necessary to save the life of the other.
But notice this: section 6(3) says that what we are dealing with here is the life of an unborn child. That is what it literally says. It is not an embryo. It is not a foetus. It is an unborn child.
And it is an unborn child whose life is of such value that it is worth saving. Just as worth saving as the life of the woman who is bearing the child. Both are lives of inestimable value and both are worth saving.
However, there are of course three lives in view, even though only two of them are mentioned in the bill. The first is the life of the woman. The second is the life of the first unborn child.
But there is a third life here as well. It is the unborn child whose life will be brought to an end because an abortion is necessary to save the life of his or her sister or brother or mother.
Sometimes very tragic decisions like these have to be made. It is understandable that the Termination of Pregnancy Bill makes provision for such situations.
However, what no one seems to have noticed is that section 6(3) gives rise to a strange anomaly which, if enacted into law, will require some spectacular mental gymnastics to overcome.
The problem is caused by the fact that the bill speaks only of the termination of pregnancy. It never says clearly and plainly that the purpose of the law is to legalise abortion.
A similar bill considered and rejected by the Queensland Parliament two years ago was more candid. It was called the Health (Abortion Law Reform) Amendment Bill. It was also more precise. It made it lawful to perform abortions in prescribed circumstances, and it defined abortion as causing a woman’s miscarriage by administering a drug, by using an instrument, or by any other means.
The Termination of Pregnancy Bill never refers to abortion or the inducement of miscarriages. It refers only to the termination of pregnancy.
This creates an anomaly for section 6(3) in circumstances where a woman is pregnant with two or more unborn children and it is necessary to abort one child in order to save the life of the other unborn child. For if a woman is pregnant with twins and one of the twins is aborted, the woman is still pregnant. Her pregnancy has not been terminated. But if her pregnancy has not been terminated then section 6(3) will not operate to authorise the conduct of the abortion.
This anomaly arises because the Termination of Pregnancy Bill avoids any reference to abortion or the inducement of miscarriages. It is possible that a court interpreting section 6(3) would understand it to be referring to an abortion even in circumstances where a women remains pregnant with her second unborn child. But to do so the court would have to ignore the literal meaning of the provision and read into it what seems to be its purpose.
While this may be so, statutes should not be drafted in a way that obscures their intent. There is something wrong with a law that does not state expressly and clearly its intended scope and operation. We all know that the bill is about abortion, but the bill never says so expressly.
Why is this so?
In this connection, it is all the more remarkable that section 6(3) refers to the need to save the life of an unborn child. Probably because the provision applies in circumstances where a woman is more than 22 weeks pregnant, the unborn child is not referred to as an embryo or a foetus. He or she is a child, not yet born. In this particular respect, the bill is candid about what is being authorised. It is the termination of the life of an unborn child, not the removal of an embryo or a foetus.
This has implications not only for section 6(3), but also the much more controversial section 6(2), which authorises terminations after 22 weeks where two medical practitioners consider that, in all the circumstances, a termination should be performed. Section 6(3) makes clear that a termination of a pregnancy under section 6(2) is the termination of an unborn child.
This gives rise to a very peculiar situation. On one hand, the bill obscures its true meaning when it refers to the termination of pregnancy rather than abortion and the procurement of a miscarriage. On the other hand, it is candid as to its true effect when it refers to the unborn child as the person upon whom the termination is performed.
Queensland’s elected representatives will need to face up to this reality when considering whether to support the Termination of Pregnancy Bill.
Nicholas Aroney is Professor of Constitutional Law at The University of Queensland.
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