The influence of activist judges

With the all-important mid-term elections pending in the United States, the legality of abortion has been on my mind.

I watch aghast at the fallout from the retrograde decision by the Supreme Court; however, it is a timely reminder of the history here.

In Australia, the act of procuring an abortion was legislated and fully criminalised in all states and territories until very recent times. In NSW, there was a maximum penalty of ten years’ imprisonment.

This is right up until it was legalised on October 2, 2019.

So, I know you are asking yourself, how can it be that it was a legislated crime, but it was effectively permitted from the late 1970s?

If it was illegal, then how come it was virtually unpoliced or prosecuted in all that time?

Well, the answer lies in the legal acrobatics of some rather brave activist judges before it was all the rage.

The defence of necessity

Up until that point, the defence of necessity was a very narrow and limited defence to criminal charges.

If you were driving an injured person to hospital and went through a red light, the necessity defence may well apply.

Or you broke into a chemist to get some bandages to stem a stab wound for example.

But the essence of the defence is that there must have been no other alternative.

So, escaping from a prison for fear of sexual assault, or trespassing by squatting owing to homelessness would never suffice.

Because you had a choice – like being assaulted, reporting it to the Governor, or living on the street.

Or all three.

Enter stage left: an unlikely hero by the name of Clifford Menhennit, Scotch College student and then Supreme Court Justice in Victoria, who determined that the defence of necessity applied to an abortion charge if ‘necessary to preserve the physical or mental health of the woman concerned’.

This was expanded in NSW to include ‘economic or social harm presently or in the future’. Such a defence has never applied to any similar crime – radical indeed.

The legal fiction here in Australia was only to be outdone by the tortured fancy adopted by the US Supreme Court in 1973 with Roe v Wade.

The Constitution provides protection from arbitrary deprivation of life, liberty or property.

In that clause, the Supreme Court found a right to privacy.

And it is that right that was said to be abridged by the criminalisation of abortion.

This undoubtedly saved countless lives.

Millions of women benefited.

Whatever the obvious moral rightness of the decision, it was always an exceptionally long legal bow to draw.

It was ripe for overturning.

The lesson from this lengthy legal walk down a short factual pier is that the situation in the USA could have been us.

Judge-made legal fiction 

The judge-made legal fiction of justification in Australia was always tenuous, brittle and weak.

Power to change laws is best exercised by parliament, rather than the fickle courts as judges change over time, waxing and waning like the moon.

On the other hand, reform on victimless crime where parliament makes it tends to stick – can anyone imagine the reversal of same-sex marriage?

It might happen that marriage equality ends in the USA, again because it is based on arguable constitutional interpretation from the Supreme Court.

I (for once) agree with Justice Samuel Alito, in the US Supreme Court, who quoted legendary conservative Justice Scalia’s view that: ‘The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’

And in the end, that is all the Supreme Court has done – returned the power to make laws to the parliaments of the various jurisdictions responsible.

The reason women will die and be imprisoned, and that child victims of sexual assault will be forced to have babies, and that poorer women will be grossly overrepresented in the forced pregnancy stakes is only indirectly because of the Supreme Court.

The real fault, the ultimate crime, lies in the slow dead hand of the legislators in the recalcitrant States.

I read that a majority (60 per cent) of Americans support a woman’s right to choose – if that is the case, then democracy should take its course.

But without compulsory voting, and where fundamentalist Christianity replaces reason with faith in energised voters, we can but hope.

Still, abortion is the number one issue motivating electors to vote this time round, so fingers crossed.

The Wall Street Journal describes abortion law as ‘a defibrillator for the Democrats’.

And I’ve looked – where in the bible is abortion outlawed anyway?

♦ David Heilpern is Dean of Law at SCU and a former magistrate.