As life gets longer, awful feels softer… A (constructive) conservative take on the Reproductive Health Care Reform Bill 2019

I can’t think of a good current public debate about law.  The New South Wales Parliament is debating the Reproductive Health Care Reform Bill 2019 and, instead of debating the content of the Bill, everybody’s dusted off their stale takes about abortion.

Liberals have the worst argument about abortion because they rely on magic and superstition.  This is, apparently, about human rights and foetus do not have human rights because… um… they’re not human?  Or they’re not capable of having rights?  There’s no way to support this argument without special pleading, you just simply have to accept that the unborn and the born live in entirely different moral categories.  If you don’t accept this magical first step, there’s no way to persuade you otherwise.

Meanwhile, religious conservatives can at least use a variant of Pascal’s Wager to get to the conclusion they want.  Either a foetus is or is not a bearer of rights.  If you act as if a foetus does bear rights, then:

  • if it does, you prevent a murder; or
  • if it does not, you interfere with a person’s bodily autonomy.

If you act as if a foetus does not bear rights, then:

  • if it does, you have murdered a bearer of rights; or
  • if it does not, you haven’t interfered with a person’s bodily autonomy.

And then it’s a balancing act about how much you value not murdering somebody over not interfering with a person’s bodily autonomy.

Fortunately, I am neither a liberal nor a religious conservative…  More importantly, these high school debating competition sort of arguments have nothing to do with the Bill.  For whatever reason, we’ve let the clowns take over the circus instead of discussing the actual content of the Bill and thus we have people making inane assertions about human rights and even more inane assertions that abortion is a lot like the Armenian Genocide (this last comment is even more disgraceful given the Premier of NSW is an Armenian-Australian whose family died in the Genocide).

Division 12 of the Crimes Act 1900 (NSW) makes it an offence to terminate a pregnancy ‘unlawfully’.  As with many legal issues, things aren’t always as they seem and it turns out the word ‘unlawfully’ is doing a lot of heavy lifting.  It’s here that we would enter the domain of the legal pedant and start a discussion of the ‘Menhennitt ruling’ (R v Davidson [1969 VR 667]) and how it’s been applied by NSW Courts.  But we can stick a pin in that discussion and ask a much better question: why should women seeking a termination of an unwanted pregnancy have to rely on legal technicality and obscurity?  Is it proper that there is not a definitive statement of the law that is clear, sensible, and intelligible to the wider community?

The RHCR redrafts the Crimes Act in a way to make it clearer what the state of the law is.  I personally dislike the drafting as it still links consensual terminations with criminality.  An ‘unqualified person’ who assists with a termination can still face seven years in jail — why?  There is no need to keep this thread live.  All this does is punish those with poorer education or oppressive social environments who act in good faith for something that NSW wants to consider legal.

NSW then institutes an extremely complex framework through the RHCR.  Instead of having a straightforward approach — if you want an abortion, you should be able to access one — the RHCR creates a framework centred on the idea that a foetus who is 21 weeks and six days old is in a different legal category to one who is 22 weeks.  Nobody is going to police this strictly, so why include this level of absurd abstraction?

If a woman is less than 22 weeks pregnant, a medical practitioner may procure a termination.  The amended version of the Bill has a bizarre additional step with an internal consent method needed, making it unclear if a medical practioner can procure a termination in an emergency situation.  The amended version of the Bill also includes a provision that the medical practitioner ‘assess whether or not it would be beneficial to discuss with the person accessing counselling about the proposed termination’.

The approach taken by the RHCR has opened the door to this weird nonsense where abortions are still considered an odd cul-de-sac of health law.  Instead of just knocking out Division 12 and abolishing the corresponding common law, the RHCR made it stupidly complex.

And this gets us neatly to the conservative argument about the RHCR.  For all the high school debating competition quality arguments, we are talking about a complex issue of power.  Are we a better society if we force people to succumb to nature, or can we cultivate a better society?

This is an inherently gendered question.  We have the technology to keep men sexually active long after nature has rendered them impotent, and yet few people debate access to Viagra in the same way that they debate abortion.  The gross old men who bankroll the Reason Party even argue that these sorts of ‘medications’ should be taxpayer funded.  So our question is whether or not we have a better society if we force women to accept the ravages of nature than the alternative.

The Xenofeminists present an extremely interesting argument here, and it’s about the way that nature provides a ground for oppression.  The more we can use technology to erode the determined aspect of nature, the less there are grounds for oppression.  That is, people — regardless of gender — should have access to whatever technological intervention they want in order to express any identity they choose (emphasis on ‘choice’ here).  If a person is pregnant and they do not want to be, technology should aid them.  If a person is not pregnant and they want to be, technology should aid them.

The best responses to this position are going to be from disability activists who argue that abortion (and euthanasia) legitimise eugenics.  If you are pregnant with a child who has a disability, technology allows you to terminate it.  This leaks into the bad faith argument being advanced by some conservatives about the problems of sex selection: if you want a boy and you’re pregnant with a girl, technology will let you terminate the girl (less emphasised is the alternative: a person might genuinely want a girl, such as what happened in this absolutely weird-shit op-ed about Jane Caro’s daughter).

Even if you think those are the only two options, you then slide immediately back to the central question: even if you are worried about the way that abortion technology will be used, should a person face a criminal penalty for accessing it?

The answer is clearly no.  Even if you’re playing the weird religious conservative Pascal’s Wager, the most you can claim is that you have a moral obligation not to have an abortion yourself.  You need an entirely separate step to get you into the criminal law space.

Framed at its best: the religious conservative’s argument results in all ‘religious’ crimes becoming secular ones.  Either God punishes people collectively for heresies or He doesn’t.  Nobody knows either way.  Therefore, we might be affecting the immortal souls by not punishing heresy.  Balance an entire community’s immortal soul against one person’s freedom of expression…

What you need is a theory of criminal law to bridge the gap so that you can say: ‘Not only is abortion wrong and it might be murder, people who procure an abortion should face criminal punishment for it.’

We don’t create crimes on the basis that something ‘might’ be morally wrong.  We do create crimes on the basis that things are demonstrably morally wrong.  They are two entirely different categories.

Ultimately, the (non-religious) conservative argument is going to look at the structure of society and ask why we are forcing women to remain pregnant when they don’t want to be.  Those with power have always had access to family planning.  Always.  If you were pregnant and you didn’t want to be, the powerful always made that shit disappear.  If you had old people who were deteriorating, you made them disappear as well.  Abolishing Division 12 and the common law offences would put everybody on the same footing: the family unit should be stable, settled, and prepared.  You should be able to procure an abortion however you want.  It should be safe and cheap.

RHCR might be a step in the right direction, but it’s weirdly complex and keeps unnecessary threads to the existing criminal framework.  If there are no rational arguments for keeping it as a crime, it should be taken off the criminal law books, for exactly the same reason as we got rid of laws against homosexuality (which, again, the powerful were all enjoying despite the technical prohibition).

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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