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Teasdale, Lisa --- "Confronting the Fear of Being 'Caught': Discourses on Abortion in Western Australia" [1999] UNSWLawJl 41; (1999) 22(1) UNSW Law Journal 60

[*] BA (Melb), LLB (Hons) (Melb). This is a revised version of a paper submitted towards an LLB undertaken at the Law School of The University of Melbourne. I gratefully acknowledge the assistance of Associate Professor Jenny Morgan in supervising this paper, providing insightful comments and lending full support to this project. I also thank Helen Rhoades, Anne Teasdale, Katie Young and the anonymous referee of the University of New South Wales Law Journal for comments on an earlier draft.

[1] Western Australia, Parliamentary Debates, 10 March 1998 at 10 (Cheryl Davenport).

[2] S de Beauvoir, The Second Sex, Picador (1998) p 502.

[3] The labelling of women as 'mothers' is discussed further in Part II A (i).

[4] The incidence of forceful behaviour and threats of legal intervention is perhaps even more common than the few reported cases suggest. In early 1998, it was reported that a man had exerted coercive physical force upon his girlfriend on being informed that she intended to terminate her pregnancy: T Stoney, "Woman Hit by Ex-Fiance", The Herald Sun (Melbourne), July 1998, p 27. The woman was abducted and assaulted by her ex-trace after she had told him she planned to have an abortion. See also Attorney-General's Reference (No 3 of 1994) [1998] 245, which concerned the death of a baby born prematurely as a result of injuries sustained in the womb, inflicted by the father. In other cases, men have instituted legal proceedings on behalf of the foetus to prevent women from having abortions: see Attorney General for the State of Queensland (Ex rel Kerr) v T (1983) 57 ALIR 285 (Kerr) which followed the English approach in Paton v British Pregnancy Advisory Trustees [1979] QB 276 (Paton). In Kerr, the application for Leave to appeal to the High Court was rejected by Gibbs CJ who commented at 286 that: "[t]here are limits to the extent to which the law should intrude upon personal liberty and personal privacy in the pursuit of moral and religious aims". See also In the Marriage of F and F (1989) FLC 92-031; and Tremblay v Daigle (1989) 62 DLR 4th 643.

[5] Discussion of the criminal laws relating to abortion appears in Part I A.

[6] R Graycar and J Morgan, "Before the High Court - 'Unnatural rejection of womanhood and motherhood': Pregnancy, Damages and the Law" [1996] SydLawRw 16; (1996) 18 Sydney Law Review 323 at 330; R Graycar and J Morgan, The Hidden Gender of Law, Federation Press (1990) pp 4-5.

[7] Crimes Act 1958 (Vic), ss 65-6; Crimes Act 1900 (NSW), ss 82-3; Criminal Code 1899 (Qld), ss 224-6; Criminal Code Act 1924 (Tas), ss 134-5; Criminal Law Consolidation Act 1935 (SA), ss 81-2.

[8] See Crimes Act 1958 (Vic), s 66; R v Davidson [1969] VicRp 85; [1969] VR 667; and R v Wald (1971) 3 DCR (NSW) 25.

[9] National Health and Medical Research Council (NHMRC), An Information Paper on Termination of Pregnancy in Australia (1996) at xi and 3 (Information Paper). The paper indicated that in 1994 a woman who had an abortion with general anaesthesia in a private hospital incurred out-of-pocket costs of approximately $600, after the Medicare rebate of $165. 40, at 3.

[10] Morgan Poll, 24 February 1998, The Roy Morgan Research Centre: <http://www.roymorgan.com/polls/1998/3058/page-1.html

>. A random sample of 100 was surveyed. Kelley and Bean have also drawn a correlation between support for women's equality and support for women's abortion rights: J Kelley and C Bean (eds), Australian Attitudes: Social and Political Analyses from the National Social Science Survey, Allen and Unwin (1988) pp 11, 16, 19.

[11] Morgan Poll, note 10 supra.

[12] Ibid.

[13] Ibid. The figures in or States, while below 50 per cent, were not insubstantial: 48 per cent in New South Wales, 41 per cent in Queensland and 31 per cent in South Australia. Perhaps the reason why the figure was so low in South Australia is a reflection of South Australia being the only State other than Western Australia to have reformed its laws on abortion in the last 20 years. In 1969, the Criminal Law Consolidation Act 1935 (SA) was amended to incorporate the notion of lawful abortion based on the risk to the woman's health, determined by reference to the woman's "actual or reasonably foreseeable environment": s 82a(l)(a)(I) and (3). With respect to Western Australia, a separate opinion poll taken in early 1998 suggested that 82 per cent of the State were in favour of abortion law reform: see Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 615 (Ljiljanna Ravlich).

[14] Western Australia, Parliamentary Debates, Legislative Council, 10 March 1998 at 16 (Cheryl Davenport).

[15] See V Laurie, "The Body Politic" The Australian (Sydney), 16-17 May 1998, pp 13-14 (The Australian Magazine).

[16] N Cica, "Ordering the Law on Abortion in Australia's Wild West" (1998) 23 Alternative Law Journal 89.

[17] For example, the Western Australian debate prompted ACT parliamentarian Wayne Berry (ALP) to push for the decriminalisation of abortion in that jurisdiction. See C Le Grand, "Abortion Back on Agenda" The Australian (Sydney), 23 May 1998, p 29. It also prompted ACT parliamentarian, Paul Osborne (Independent), to introduce two regressive Bills which were met with much public resistance: see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 26 August 1998 at 1332 (Paul Osborne); at 1358 (Wayne Berry); and 27 August 1998 at 1455. The Health Regulation (Abortions) Bill 1998, introduced into the Legislative Assembly of the Australian Capital Territory Government on 26 August 1998, purported to clarify the circumstances in which abortions may and may not be performed, depending on the nature of the risk to the health of the woman and the developmental stage of the foetus. The Bill was discharged from the Assembly on 18 November 1998, at which time Osborne introduced a second Bill, the Health Regulation (Maternal Health Information) Bill 1998. This Bill was passed by the unicameral government on 26 November 1998. The Health Regulation (Maternal Health Information) Act 1998 (ACT) provides the legislative basis for the provision of prescribed information to women contemplating an abortion to require a 'cooling off period between making the decision and undergoing the procedure.

[18] Western Australia, Parliamentary Debates, Legislative Council, 10 March 1998 at 8 (Cheryl Davenport).

[19] D Reardon, "WA Call to Fund Fares East for Abortions" The Age (Melbourne), 2 May 1998, p 7.

[20] Within two days of the trial of the Western Australian doctors, two women believed they would be unable to access medical termination procedures and chose to self-abort. Both were hospitalised as a result: Western Australia, Parliamentary Debates, Legislative Council, 10 March 1998 at 10 (Cheryl Davenport).

[21] Member of the Legislative Council, (ALP). This paper identifies the political party of each Member of Parliament appearing in the present discussion in order to demonstrate that the debate was not dictated by party politics.

[22] Criminal Code Act 1913 (WA), Appendix B to Criminal Code Act Compilation Act 1913 (WA), ss 199-202 (Criminal Code (WA)).

[23] The first recommendation for reform in Western Australia came in 1994 from the Chief Justice of Western Australia, Report of the Chief Justice's Task Force on Gender Bias (1994) pars 9, which called for the repeal of ss 199-201 of the Criminal Code 1913 (WA).

[24] The Health Regulation (Maternal Health Information) Act 1998 (ACT) should be noted. However, given that this paper was written before the passing of this new law, its focus is exclusively upon the Western Australian debates and amending legislation.

[25] J Allen, Sex and Secrets: Crimes Involving Australian Women Since 1880, Oxford University Press (1990) p 73, writing of the experience of Australian women in relation to pregnancy and abortion during the late nineteenth century.

[26] T Liberman and V Sripathy (eds), Your By Your Baby: Women's Legal Rights from Conception to Binh, Redfern Legal Centre Publishing (1996) 25; J Allen, ibid.

[27] See also Graycar and Morgan (1990), note 6 supra, p 201. There is little documentation on the practice of abortion among Australian Indigenous women. However, my own discussions with some Indigenous women suggest that abortion was practised long before white invasion. It is both interesting and important to investigate further Indigenous women's perspective on this issue.

[28] The first criminal abortion statute in England was Lord Ellenborough's Act 1803 (UK) 43 Geo 3, c 58, ss 1-2. This Act made abortion after 'quickening' a crime, but provided lesser penalties for abortion before quickening. 'Quickening' was understood as the time when the woman first felt movement of the foetus inside her. Later the Infant Life (Preservation) Act 1929 (UK) 19 & 20 Geo 5, c 34 was passed which made the wilful "destruction of the life of a child capable of being born alive", performed with the necessary intent, a felony. It also introduced for the first time a good faith element and the justification of termination only for the purpose of preserving the life of the mother. Then came the Abortion Act 1967 (UK) 15 & 16 Eliz 2, c 87 which permits a licensed practitioner to perform an abortion where to continue the pregnancy would cause injury to the physical or mental health of the woman or where there is a substantial risk of the child suffering from physical or mental abnormalities. The Act also allows for account to be taken of the woman's actual or reasonably foreseeable environment. The Australian criminal statutes are influenced by the Acts preceding the Abortion Act 1967 (UK). See also Barbara Brookes, Abortion in England 1900-1967, Croom Helm (1988) p 24.

[29] Allen, note 25 supra, p 31. Allen found that during the late nineteenth and early twentieth centuries

there were "low rates of indictment for reproduction-related offences" from abortion to infanticide.

[30] Ibid.

[31] Ibid, pp 26-40.

[32] Ibid, p 31; Libesman and Sripathy, note 26 supra, p 25.

[33] Sir Edward Coke's description of homicide, as applied in the common law of New South Wales and Victoria, provides that murder involves the death of "any reasonable creature in being": see L Waller and CR Williams, Criminal Law Text and Cases, Butterworths (7th ed, 1993), p 130; see also R v Hutty [1953] VR 338 at 339; Kerr (1983) 57 ALJR 285 at 286; and Paton [1979] QB 276.

[34] Crimes Act 1958 (Vic), ss 65-6; Crimes Act 1900 (NSW), ss 82-3; Criminal Code 1899 (Qld), ss 224-6; Criminal Code Act 1924 (Tas), ss 134-5; Criminal Law Consolidation Act 1935 (SA), ss 81-2.

[35] Ibid. The former provisions of the Criminal Code 1913 (WA) did not refer to risks to the mother's health. However, the word 'unlawfully' appeared in the relevant sections: ss 199-201.

[36] In Western Australia, limitations on the right to abortion exist with respect to pregnancies beyond 20 weeks, by requiring the consent of two doctors: Acts Amendment (Abortion) Act 1998 (WA) amending s 334 of the Health Act 1911 (WA). See discussion in Part I C (ii).

[37] NHMRC, Information Paper, note 9 supra at 7.

[38] One of the anonymous referees pointed out that the practices of euthanasia and female genital mutilation are other medical procedures that are criminalised. However, I note that there is no Medicare number for either female genital mutilation or euthanasia.

[39] NHMRC, Information Paper, note 9 supra at 3.

[40] R v Morgentaler [1988] 1 SCR 30 (Morgentaler).

[41] J Fudge, "The Publicvate Distinction: The Possibilities of the Limits to the use of the Charter to Further Feminist Struggles" (1987) 25 Osgoode Hall Law Journal 485 at 544.

[42] Ibid.

[43] L Smith, "An Equality Approach to Reproductive Choice: R v Sullivan" (1991) 4 Yale Journal of Law and Feminism 91 at 117.

[44] [1969] VicRp 85; [1969] VR 667 (Davidson).

[45] Ibid at 672.

[46] (1971) 3 DCR (NSW) 25 (Wald).

[47] (1986) 9 Q1d Lawyer Reps 8, per McGuire J.

[48] Graycar and Morgan (1990), note 6 supra, p 200.

[49] (1995) 38 NSWLR 47 (CES).

[50] CES v Superclinics (Australia) Pty Ltd (unreported, NSW SC, Newman J, 18 April 1994).

[51] Ibid at 15-17.

[52] Graycar and Morgan (1996), note 6 supra at 327-9.

[53] Ibid at 332.

[54] (1983) 57 ALJR 285 at 286.

[55] (1989) FLC 92-031.

[56] Graycar and Morgan (1996), note 6 supra at 332.

[57] CES, note 49 supra.

[58] Ibid at 84.

[59] Ibid at 85.

[60] Ibid at 84.

[61] Graycar and Morgan (1996), note 6 supra at 340.

[62] L Cannold, The Abortion Myth: Feminism, Morality and the Hard Choices Women Make, Allen and Unwin (1998).

[63] !bid, pp 97-104.

[64] Graycar and Morgan (1996), note 6 supra at 340.

[65] Cannold, note 62 supra, pp 97-104.

[66] Ibid, p 102.

[67] Ibid.

[68] See Cannold, note 62, supra, p xxvii. Cannold's research was in response to the thesis of Peter Singer and Deane Wells who argue that the solution to the abortion conflict is ectogenesis (ie, artificial wombs). This would create a situation where women could not decide to abort and would not need to abort as development of the embryo or foetus could continue in an artificial womb once removed from the woman. However, Cannold's findings indicated that this was not a solution for most women as it neglects the question of motherhood which, Cannold argues, is central to the decision of whether to proceed with a pregnancy.

[69] See Udale v Bloomsbury Area Health Authority [1983] 2 All ER 522; not followed in the subsequent English cases of Thake v Maurice [1984] 2 All ER 513, and Emeh v Kensington Area Health Authority [1985] QB 1012; and criticised by Pratt DCJ in Dahl v Purnell (1992) 15 Qld Lawyer Reports 31 at 35. For an excellent discussion of these cases see Graycar and Morgan (1996), note 6 supra at 333-40.

[70] P Zabar and G Angus, Adoptions in Australia 1993-1994, Australian Institute of Health and Welfare: Child Welfare Series No 11 (1995) Table 17, cited in Graycar and Morgan (1996), note 6 supra.

[71] For a discussion of Acting Chief Justice Kirby's judgment in terms of its realistic assessment of public mores and attitudes, see J Swanton, "Damages for 'wrongful birth' - CES v Superclinics (Aust) Pry Ltd" (1996) 4 Torts Law Journal 1.

[72] (1994) Aust Torts Reports 81-309 (SC Qld).

[73] CES, note 49 supra at 65 (emphasis in original).

[74] Ibid at 73, cf Udale [1983] 2 All ER 522 at 527, per Jupp J.

[75] CES, note 49 supra at 73.

[76] Ibid at 74.

[77] JA Devereux, "Actions for Wrongful Birth" (1996) 4 Tort Law Review 107; L Crowley-Smith, "Therapeutic Abortions and the Emergence of Wrongful Birth Actions in Australia: A Serious Danger to Mental Health?" (1996) 3 Journal of Law and Medicine 359; Graycar and Morgan (1996), note 6 supra; K Peterson, "Wrongful Conception and Birth: The Loss of reproductive Freedom and Medical Irresponsibility" [1996] SydLawRw 29; (1996) 18 Sydney Law Review 503; Swanton, note 71 supra; C Tricker, "Sex, Lies and Legal Debate: Abortion Law in Australia" [1995] SydLawRw 27; (1995) 17 Sydney Law Review 446; J Wainer, "Abortion Before the High Court" (1997) 8 Australian Feminist Law Journal 133.

[78] It was highly unusual for the Catholic Church to be granted amicus curiae. In Bropho v Tickner [1993] FCA 25; (1993) 40 FCR 165 at 172, Wilcox J stated that: "the intervention of amicus curiae is a relatively rare event, the amicus' role normally being confined to assisting the court in its task of resolving the issues tendered by the parties by drawing attention to some aspect of the case which might otherwise be overlooked". It was even more surprising that leave to appear was granted given that none of the parties supported the Bishops' intervention in the case. The Court was split on the application 3:3, and a statutory majority (determined by the casting vote of the Chief Justice) meant that the Bishops' application was admitted. The Bishops argued that there is no such thing as a 'lawful abortion' under the Crimes Act 1900 (NSW) and that: "the law should accept the legal personality of the unborn child" (Bishops' Submission pars 9). The Abortion Providers Federation was admitted as amicus curiae after the Catholic Church and feminists from around Australia rallied to assist in the preparation of the Abortion Providers' brief. The Women's Electoral Lobby also prepared a brief seeking intervention, but the case settled before the issue of standing was decided. See Wainer, note 77 supra at 136-8. It certainly seems discordant that the Catholic Church's intervener status was determined ahead of the other applicants. Jocelyn Scutt took an interesting position in this debate, arguing that intervener status should be granted in a wider range of circumstances, bringing Australian courts into line with the United States, making for broader and more democratic judicial decision making: see J Scutt, "Lionel Murphy and Women's Issues" in Coper and Williams (eds), Justice Lionel Murphy: Influential or Merely Present?, Federation Press (1997).

[79] Criminal Code (WA), ss 199-201, 259.

[80] Health Act 1911 (WA), ss 334-5.

[81] Health Act 1911 (WA), s 334.

[82] It should be noted that Davenport's Bill had the support of Liberal party member and Attorney-General, Peter Foss. This support evidenced a genuine attempt to make the Bill bipartisan. Peter Foss also initiated a separate Bill entitled the Criminal Code Amendment Bill. However, while this Bill was considered almost simultaneously with Davenport's Criminal Code Amendment (Abortion) Bill, it was eventually discharged, leaving Davenport's Bill as the sole basis for the reforms. A small number of the extracts examined in this paper are taken from the debates on both Bills. Those extracts discussing the Foss Bill are from the Legislative Assembly, 17 March 1998. However, the slight variation in content of the Bills does not alter the meaning of the debates for the purposes of this paper. For a discussion of each of the Bills, see Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 668-9 (Edward Cunningham, ALP).

[83] Western Australia, Parliamentary Debates, Legislative Council, 10 March 1998 at 8 (Cheryl Davenport).

[84] In a 1992 United Nations report on women in politics it was estimated that the representation of women in parliament would need to exceed 35 per cent for women to have an effect on high level decision-making. This figure has been referred to as the 'critical mass' required for women to achieve influence: see United Nations, Centre for Social Development and Humanitarian Affairs, Women in Politics and Decision-Making in the Twentieth Century, Kluwer Academic Publications (1992) p 107. In the Western Australian Parliament, women were some 20 per cent of representatives.

[85] NHMRC, information Paper, note 9 supra at 1. See also the results of a study conducted in 1988 by J Kelley and C Bean, which confirmed that abortion "is one of the most controversial issues in the Western world": J Kelley and C Bean, note 10 supra, p 3.

[86] The number of women in the Western Australian Parliament in March 1998 was 13 out of a total of 57 members in the Legislative Assembly (22.8 per cent women) and seven out of 34 members in the Legislative Council (20 per cent women). See Western Australia, Parliamentary Debates, Legislative Council, 10 March 1998 at 611 (Ljiljanna Ravlich).

[87] Many male members commented upon how uncomfortable they felt discussing an issue that essentially relates to women. For example, the first male speaker in favour of the Bill, Ken Travers (ALP), feeling unqualified as a male to speak exclusively about the issue of abortion, asked his partner Trish Cowles to write the speech he presented in Parliament: Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 616. See also Western Australia, Parliamentary Debates, Legislative Council, 18 March 1998 at 739 (Tom Helm, ALP); at 768 (Barry House, Lib); at 779-80 (Greg Smith, Lib). Greg Smith stated: "I am prepared to say it is not in the domain of a man to comment on abortion because I have never had to experience carrying a child to full term nor the trauma of an unwanted pregnancy .... I do not have the right to force a woman to go on with an unwanted pregnancy".

[88] Health Act 1911 (WA), s 334(3)(a).

[89] Criminal Code (WA), s 199(1)(a).

[90] Health Act 1919 (WA), s 334(5).

[91] Ibid, s 334(8)(b).

[92] Ibid, s 334(8).

[93] Ibid, s 334 (7)(a).

[94] Ibid.

[95] Ibid, s 335(5)(d)(e).

[96] Criminal Code (WA), s 199(2) (3).

[97] Davidson, note 44 supra; Wald, note 46 supra.

[98] Cf Health Regulation (Maternal Health Information) Act 1998 (ACT).

[99] See D Reardon, "Abortion on Demand in WA" Sydney Morning Herald (Sydney), 22 May 1998, p 7; D Reardon, "Abortion Now Legal in WA" The Age (Melbourne), 22 May 1998, p 6; Editorial, "WA Vote Makes Abortion Legal" Herald Sun (Melbourne), 22 May 1998, p 10.

[100] M Perry, "Australian Women Get Abortion on Demand" The Australian (Sydney), 21 May 1998.

[101] D Reardon, "Abortion Now Legal in WA" The Age (Melbourne), 22 May 1998, p 6.

[102] While women politicians were the instigators and primary supporters of the Bill, progressive discussion was not restricted to their contributions alone. A significant number of male members spoke in favour of reform, distinguishing this debate from previous discussions on abortion in Australia. See Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 689 (Fred Riebeling, ALP, who argued that the Parliament should be looking at the impact the criminal laws have on women, and not issues such as when life begins); at 691 (Alan Carpenter, ALP, who emphasised that reality determined this issue long ago); at 661-2 (Dr Geoffrey Gallop, ALP, who reminded the Parliament that women are differently situated when they become pregnant. He also commented that to insist that women go through with each and every pregnancy imposes a rigid and inflexible form of moral reasoning); Legislative Council, 18 March 1998 at 735-7 (John Halden, ALP, who stressed that a "silly law" has existed which has been tolerated because the majority view is that women must have this opportunity available to them). Another notable advocate of change was Bruce Donaldson (Lib), who emphasised that: "we must also realise that the gestation period is not nine months, it is at least 18 years for all children": Western Australia, Parliamentary Debates, Legislative Council, 1 April 1998 at 1177.

[103] Arthur Marshall (Lib), personally against abortion, assessed whether his views were commensurate with that of his electorate by conducting a small survey in his local area (of 37 people: five male and 32 female). In light of the results of this survey, Marshall decided to convey a representative view of his electorate, and voted in favour of the Bill: Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 679. Norm Kelly (AD) also went to great lengths to research the history of abortion, concluding that the origin of our current laws "which are based on the medicalisation and commodification of the female body" were made by men to exercise control over women, and "they are the same laws with which we are confronted today": Western Australia, Parliamentary Debates, Legislative Council, 10 March 1998 at 754-5.

[104] Western Australia, Parliamentary Debates, Legislative Council, 18 March 1998 at 781 (Cheryl Davenport); at 780 (Norman Moore, Lib, commenting: "This debate has demonstrated the maturity of this House and its capacity to debate and consider issues of great complexity and passion in an exemplary manner"); 1 April 1998 at 1215 (Peter Foss, Lib, stating: "The atmosphere in this House during the debate has been extraordinary ... I think we are all changed as a result of it"); at 1219 (Giz Watson, GWA: "I am proud and delighted to be part of this historic piece of legislation. I hope that the passage of this Bill has partly been as a result of the changes in this place [the Legislative Council] and that it is a sign of other progressive legislation of which this Council can be a part").

[105] See generally K Luker, Abortion and the Politics of Motherhood, University of California Press (1984).

[106] Member of the Legislative Assembly, (Lib).

[107] Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 697 (Roger Nicholls, commenting: "Ultimately, it is a decision for the mother").

[108] Member of the Legislative Council, (ALP).

[109] Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 602 (Tom Stephens); see also Legislative Council, 18 March 1998 at 746 (Edmund Dermer, ALP, who stated that: "[a] child is a child before birth"), at 624 (Simon O'Brien, Lib); Legislative Assembly, 17 March 1998 at 682 (John Kobelke, ALP).

[110] Cannold, note 62 supra, pp 87-117.

[111] Criminal Code 1913 (WA), ss 199-201. Cf Criminal Law Consolidation Act 1935 (SA), s 81.

[112] Stephens was not one in the use of strong words and images. Simon O'Brien (Lib) made graphic references to Roman Polanski's film production of Macbeth. He examined the scene depicting "death of the maternal bed". He said: "I recall vividly that her [the woman's] belly was slit open after her death and the infant was removed from the woman alive": Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 622. Many others referred continuously to the foetus as a 'child': see Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 668 (Edward Cunningham, ALP).

[113] Ibid.

[114] Ibid at 602.

[115] Ibid.

[116] Ibid.

[117] Ibid.

[118] Ibid.

[119] Ibid.

[120] Ibid.

[121] The Macquarie Dictionary (2nd ed, 1996) p 121. 'Infant' is defined as "a child during the earliest period of its life", p 901; and 'child' is defined as "a baby or infant", p 313.

[122] Ibid, p 1198.

[123] Ibid, p 206 (emphasis added).

[124] Member of the Legislative Assembly, (ALP).

[125] Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 676 (Sheila McHale). Cf Dianna Majury, "Equality and Discrimination According to the Supreme Court of Canada" (1990-91) 4 Canadian Journal of Women and the Law 407.

[126] The philosophical and ethical arguments about when life begins are beyond the scope of this paper. For further discussion on this debate see C Mackenzie, "Abortion and Embodiment" (1992) 70 Australasian Journal of Philosophy 136.

[127] See Part I A.

[128] See Crimes Act 1958 (Vic), s 3 and Sir Edward Coke's definition of homicide, note 33 supra.

[129] Attorney-General's Reference (No 3 of 1994) [1997] UKHL 31; [1998] AC 245 at 254 is the most recent House of Lords decision in this context. The case concerned the death of a premature baby who sustained injury in utero as a result of stabbing wounds inflicted by the biological father to the pregnant woman. Lord Mustill reiterated the case law position: "the child does not attain a sufficient human personality to be the subject of a crime of violence, and in particular of a crime of murder, until it enjoys an existence separate from its mother; hence, whilst it is in the womb it does not have a human personality", at 255.

[130] Although, in some jurisdictions there are specific statutory offences relating to the foetus which is in the process of being born, but is not yet alive and separate from its mother. Destruction of the foetus at this stage is neither abortion nor murder, but a statutory offence: see Crimes Act 1958 (Vic), s 10. For further discussion see Wailer and Williams, note 33 supra, p 135.

[131] Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 602 (Tom Stephens).

[132] On a theoretical level, some French philosophers have attempted to resuscitate and redefine 'the maternal'. These thinkers have reinvestigated what is commonly referred to as essentialism or biological determinism. Helene Cixous locates the 'essence of femininity' in the womb, (re)claiming the feminine as the 'maternal sex': D Stanton, "Difference on Trial: A Critique of the Maternal Metaphor in Cixous, Irigaray and Kristeva" in J Allen and IM Young (eds), The Thinking Muse: Feminism and Modern French Philosophy, Indiana University Press (1989) p 156. Luce Irigaray claims that women are always mothers: L Irigaray, Ethique de la difference sexuelle, Editions de Minuit (1984) p 27. And Julia Kristeva describes the feminine function as maternal: J Kristeva, La revolution du langage poetique, Editions du Seuil (1974) pp 499-500. These philosophers have departed from liberal feminism's emphasis on the oppressiveness of motherhood as an institution and have instead focussed on the potential of a radical revisioning of motherhood for the empowerment of women.

[133] See Western Australia, Parliamentary Debates, Legislative Council, 10 March 1998 at 14 (Cheryl Davenport); Legislative Assembly, 17 March 1998 at 657 (Diana Warnock) ; Legislative Council, 18 March 1998 at 772 (Christine Sharp).

[134] C MacKinnon, Feminism Unmodified: Discourses on Life and Law, Harvard University Press (1987) p 94.

[135] Cannold, note 62 supra.

[136] SA Gavigan, "Women and Abortion in Canada: What's Law Got To Do With It?" in HJ Maroney and M Luxton (eds), Feminism and Political Economy: Women in Canada, Methuen (1987) pp 263 at 271.

[137] See, R Petchesky, Abortion and Woman's Choice: The State, Sexuality and Reproductive Freedom, Verso (1985).

[138] See criticisms made by Critical Legal Scholars: M Tushnet, "An Essay on Rights" (1984) 62 Texas Law Review 1363 at 1382-3; cf R Delgado, "The Ethereal Scholar: Does Critical Legal Studies Have at Minorities Want?" (1987) 22 Harvard Civil Rights - Civil Liberties Law Review 301 at 305.

[139] Fudge, note 41 supra; J Morgan, "Equality Rights in the Australian Context: A Feminist Assessment" in Philip Alston (ed), Towards an Australian Bill of Rights, Centre for International and Public Law, ANU (1994) pp 123, 124-5.

[140] Ibid.

[141] P Williams, The Alchemy of Race and Rights, Harvard University Press (1991); P Williams, "'Minority Critique of CLS: Alchemical Notes" (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 424 at 429.

[142] Williams (1991), note 141 supra, see especially ch 1, "Excluding Voices: A Necklace of Thoughts on the Ideology of Style", p 29.

[143] See W Gaiston, "Practical Philosophy and the Bill of Rights: Perspectives on Some Contemporary Issues" in M Lacey and K Haakonssen (eds), A Culture of Rights, Cambridge University Press (1992) pp 215, 234.

[144] E Schneider, "The Dialectic of Rights and Politics: Perspectives from the Women's Movement" (1986) 61 New York University Law Review 589 at 610.

[145] See Western Australia, Parliamentary Debates, Legislative Council, 18 March 1998 at 750 (Barbara Scott, Lab). Scott argued that abortion "is not a political issue, it is not a women's issue; it is not a legal issue or a moral issue, but rather it is a question of human rights". In framing her argument in this way, Scott precluded women from the definition of human rights, and denied outright that human rights might be political or indeed moral. Spoken in the year of the 50th anniversary of the Universal Declaration of Human Rights, Scott made no reference either to the Declaration, the Fourth World Conference on Women in Beijing in 1995, or the existing International Conventions dealing with human rights. See generally Amnesty International, Report on the Fourth World Conference on Women, IOR 41/30/95; N Streeter, "Beijing and Beyond ..." (1996) 11 Berkeley Women's Law Journal 200; D Otto, "Holding Up Half the Sky, But for Whose Benefit? A Critical Analysis of the Fourth World Conference on Women" (1996) 6 Australian Feminist Law Journal 7.

[146] Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 597 (Tom Stephens).

[147] Ibid.

[148] Member of the Legislative Council, (ALP).

[149] Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 610 (Ljiljanna Ravlich).

[150] Ibid at 613.

[151] B Friedan, The Feminine Mystique, Penguin Books (1974).

[152] Ibid.

[153] [1973] USSC 43; (1973) 35 L Ed 2d 147.

[154] For a discussion of the right to privacy and abortion in the United States see P Smith, "The Right to Privacy: Roe v Wade Revisited" (1983) 43 The Jurist 289.

[155] [1973] USSC 43; (1973) 35 L Ed 2d 147 at 176-7, per Justice Blackmun.

[156] See MacKinnon, note 134 supra, pp 93-102; Graycar and Morgan (1990), note 6 supra, pp 202-7; Petchesky, note 137 supra, pp 289-302; J Hontz, "25 Years Later: The Impact of Roe v Wade" (1998) 25 Human Rights 8; E Reilly, "The Rhetoric of Disrespect: Uncovering the Faulty Premises Infecting Reproductive Rights" (1996) 5 American Journal of Gender and the Law 147; E Howard, "The Roe'd to Confusion" (1993) 30 Houston Law Review 1457.

[157] See Petchesky, note 137 supra, p 295; J Elshtain, Public Man, Private Woman, Princeton University Press (1981) p 243.

[158] See M Poovey, "The Abortion Question and the Death of Man" in J Butler and J Scott (eds), Feminists Theorize the Political, Routledge (1992) p 239.

[159] Petchesky, note 137 supra, p 295.

[160] Harris v McRae [1980] USSC 174; 448 US 297 (1980).

[161] MacKinnon, note 134 supra, p 96.

[162] Member of the Legislative Assembly, (ALP).

[163] Petchesky, note 137 supra, p 295.

[164] Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 665.

[165] Ibid.

[166] Ibid.

[167] See generally E Siegel Watkins, On the Pill: A Social History of Oral Contraceptives, John Hopkins University Press (1998) p 73.

[168] Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 665-6. See J Raymond, "RU 486: Progress or Peril?" in J Callahan (ed), Reproduction, Ethics and the Law: Feminist Perspectives, Indiana University Press (1995).

[169] Note 164 supra at 665.

[170] Ibid at 664.

[171] !bid at 667 (emphasis added).

[172] Ibid.

[173] [1973] USSC 43; (1973) 35 L Ed 2d, 147.

[174] Ibid at 176. Blackmun J also referred to the First, Fourth, Fifth and Ninth Amendments as providing the bases for the right to privacy.

[175] Ibid at 177-8.

[176] E Kingdom, "Legal Recognition of a Woman's Right to Choose" in J Brophy and C Smart (eds), Women in Law, Routledge and Kegan Paul (1985) p 143.

[177] See Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 654 (Diana Warnock, ALP).

[178] See Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 627 (Helen Hodgson, AD).

[179] Ibid at 625.

[180] Ibid.

[181] Ibid.

[182] Ibid. Hodgson's approach could be viewed as an argument motivated by equality as much as by choice.

[183] Ibid.

[184] See Part II C (ii).

[185] Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 626 (Helen Hodgson).

[186] Ibid.

[187] Ibid.

[188] (1995) 38 NSWLR 47 at 84-5.

[189] Ibid at 84.

[190] See generally MM Maloney, Postnatal Depression: A Study of Mothers in the Metropolitan Area of Perth, Western Australia, Curtin University Press (1995); J Carter (ed), Postnatal Depression: Towards a Research Agenda for Human Services and Health: Proceedings from the Postnatal Depression Workshop, AGPS (1992).

[191] For examples of story telling methods employed in the debates see Western Australia, Parliamentary Debates, Legislative Council, 10 March 1998 at 15-16 (Cheryl Davenport); 17 March 1998 at 627 (Helen Hodgson); Legislative Assembly, 17 March 1998 at 664 (Dr Judith Edwards); at 680 (William Thomas, ALP).

[192] Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 627 (Helen Hodgson).

[193] Ibid.

[194] Ibid.

[195] Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 613 (Ljiljanna Ravlich).

[196] Member of Legislative Council, (GWA)

[197] Western Australia, Parliamentary Debates, Legislative Council, 18 March 1998 at 772 (Christine Sharp).

[198] Ibid. This is not necessarily inconsistent with the common law position because to say that something is a 'life' is not necessarily to say that it is a 'person'. Mackenzie considers the distinction between 'human beings' and 'persons' and the argument that only 'persons' can be members of the moral community. She explores "how far advanced since conception a human being needs to be before it begins to have a right to life by virtue of being like a person - that is, at what stage should we start treating a fetus as if it were a person?" She argues that personhood, while contingent, "is constituted by a complex of properties that supervene on a specific physical constitution". And further, that the "force of the feminist defense of abortion must lie in its highlighting of the moral particularity of the relationship between a woman and a fetus". For further discussion see Catriona McKenzie, "Abortion and Embodiment" in PA Komesaross, Troubled Bodies: Critical Perspectives on Post Modernism, Medical Ethics and the Body, Melbourne University Press (1995) 39 at 45-7.

[199] Kingdom, note 176 supra.

[200] Fudge, note 41 supra.

[201] Petchesky, note 137 supra.

[202] Member of the Legislative Assembly, (Lib).

[203] Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 674 (Iain MacLean).

[204] Western Australia, Parliamentary Debates, Legislative Council, 18 March 1998 at 735 (John Halden).

[205] Ibid.

[206] Ibid.

[207] Ibid.

[208] M Munro, interview with Pauline Hanson, President of the One Nation Party and Kathleen Swinburne, President of the Sole Parents Union, A Current Affair, (Sydney, 16 July 1998). The interview focussed on Hanson's speech to the Federal Parliament calling for the termination of welfare payments to single mothers. Hanson's speech was a response to the federal inquiry into divorce rates.

[209] Eric Charlton, Member of the Legislative Council, (Nat).

[210] Member of the Legislative Council, (AD).

[211] Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 626 (Helen Hodgson, Eric Charlton and Ljiljana Ravlich), (emphasis added).

[212] Cannold, note 62 supra, p 110.

[213] Ibid, pp 111-12.

[214] Ibid.

[215] Ibid.

[216] Western Australia, Parliamentary Debates, Legislative Council, 18 March 1998 at 735 (John Halden).

[217] Cannold, note 62 supra, p 112.

[218] See Diana Warnock, (ALP), urging that we "must trust women, and not patronise them": Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 655. See also Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 621 (Giz Watson) and at 628 (James Scott).

[219] See C Bacchi, Same Difference: Feminism and Sexual Difference, Allen and Unwin (1990).

[220] Otto, note 145 supra at 12.

[221] Ibid.

[222] See D Otto, "Challenging the New World Order: International Law, Global Democracy and the Possibilities for Women" (1993) 3 Transnational Law & Contemporary Problems 371 at 389. Otto utilises the phrase "exclusion by equality" in demonstrating the specific ways in which equality can impose Western standards upon differently situated women across cultures.

[223] C MacKinnon, "Reflections of Sex Equality Under the Law" (1991) 100 Yale Law Journal 1290.

[224] Ibid at 1291.

[225] See generally J Pettman, Worlding Women: A Feminist International Politics, Allen and Unwin (1996) p 11. In the Australian context, analyses have been conducted with respect to the high percentage of sterilisation of women with disabilities: see H Rhoades, "Intellectual Disability and Sterilisation: An Inevitable Connection?" (1995) 9 Australian Journal of Family Law 234; H Rhoades, Sterilisation Decision Making and the Family Court:: The Far Bridge or the Fields?, Master of Laws thesis, University of Melbourne (1997).

[226] R Cook, "Women's International Human Rights: The Way Forward" in R Cook (ed), Human Rights of Women: National Perspectives and International Perspectives, University of Pennsylvania Press (2nd ed, 1995) pp 3, 13. See also R Cook, "International Protection of Women's Reproductive Rights" (1992) 24 New York University of Journal of International Law and Politics 645 at 689.

[227] Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 620 (Giz Watson).

[228] See I Porras, "Maternity Leave Policies: An International Survey" (1988) 11 Harvard Women's Law Journal 171.

[229] MacKinnon, Feminism Unmodified, note 134 supra, p 166.

[230] MacKinnon, Sexual Harassment of Working Women, Yale University Press (1979) pp 4-5.

[231] Graycar and Morgan (1990), note 6 supra, p 209. See also S Law, "Rethinking Sex and the Constitution" (1984) 132 University of Pennsylvania Law Review 935.

[232] Smith, note 43 supra at 112.

[233] It should be noted that in the Ontario Court of Appeal case of Morgentaler, which preceded the famous Supreme Court decision, it was held that because access to abortion is a matter that only affects women and not men, it does not concern the issue of equality. R v Morgentaler 22 DLR 4th 641 (Ont CA 1985) at 680-5.

[234] 63 CCC 3d 97 (1991) (Can).

[235] Constitution Act 1982 Part I, s15, Schedule B Canada Act 1982 (UK), c 11 (Charter).

[236] Smith, note 43 supra at 112.

[237] Ibid at 114.

[238] Ibid.

[239] Ibid.

[240] Ibid at 116.

[241] Ibid at 115-6.

[242] !bid at 116.

[243] Ibid.

[244] For a discussion see E Sheehy, "Feminist Argumentation Before the Supreme Court of Canada in R v Seaboyer; R v Gayme: the Sound of One Hand Clapping" [1991] MelbULawRw 27; (1991) 18 Melbourne University Law Review 450.

[245] Member of the Legislative Assembly, (Lib).

[246] Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 658 (Paul Omodei).

[247] Ibid.

[248] Ibid at 659.

[249] Ibid (emphasis added).

[250] For analysis of the terminology employed in the debates see Part II A.

[251] See generally J Ussher (ed), Body Talk: The Material and Discursive Regulation of Sexuality, Madness and Reproduction, Routledge (1997); A Oakley (ed), Women, Medicine and Health, Edinburgh University Press (1993); H Roberts (ed), Women's Health Counts, Routledge (1990). Medical responses to women's reproductive organs and problems post-birth have varied over time. For example, in 1969 Wright argued that: "the uterus has but one function: reproduction. After the last planned pregnancy, the uterus becomes a useless, bleeding, symptom-producing, potentially cancer-bearing organ and should be removed": R Wright, "Hysterectomy: Past, Present and Future" (1969) 33 Obstetrics and Gynaecology 560 at 561.

[252] J Grimshaw, Feminist Philosophers: Women's Perspectives on Philosophical Traditions, Wheatsheaf Books (1986).

[253] Western Australia, Parliamentary Debates, Legislative Assembly, 17 March 1998 at 660 (Paul Omodei).

[254] Ibid.

[255] Ibid. Omodei reminded the Parliament that: "[t]he saying 'women and children first' is not a cliche invented by Hollywood for movies like Titanic; it is a principle of behaviour which has long been with us, and we hope will never be abandoned".

[256] See generally MacKinnon, note 223 supra; MacKinnon, note 134 supra, pp 96-102.

[257] See Part II A (i).

[258] See Leeth v Commonwealth (1992) 174 CLR 455. Only Deane and Toohey II found in the Constitution an underlying doctrine of equality of the people of the Commonwealth under the law and before the Courts, at 486-91. Gaudron J held that: "a concept of equal justice - a concept which requires the like treatment of people in like circumstances - ... is fundamental to the judicial process", at 502.

[259] Western Australia, Parliamentary Debates, Legislative Council, 10 March 1998 at 15 (Cheryl Davenport).

[260] Ibid.

[261] Ibid, Davenport quoting Tarrant.

[262] Ibid.

[263] Ibid at 17.

[264] Ibid.

[265] Ibid.

[266] Ibid.

[267] Member of the Legislative Council, (GWA).

[268] Western Australia, Parliamentary Debates, Legislative Council, 17 March 1998 at 620 (Giz Watson).

[269] Ibid. See also Western Australia, Parliamentary Debates, Legislative Council, 1 April 1998 at 1178 (Ken Travers).

[270] Ibid at 621.

[271] Ibid at 620.

[272] Ibid.

[273] Ibid at 621.

[274] Ibid.

[275] The cost of contraception was regarded as a significant issue in the debate on abortion law reform by Cheryl Davenport and Giz Watson: Western Australia, Parliamentary Debates, Legislative Council, 10 March 1998 at 17 (Cheryl Davenport); 17 March 1998 at 621 (Giz Watson).