A Modest Amendment


The bills I discuss below were withdrawn on the 27th of February, 2017, because they faced almost certain defeat.  The issue of reform was referred to the Queensland Law Reform Commission.

Two related private member’s bills are currently before the Queensland Parliament. The Abortion Law Reform (Women’s Right To Choose Bill) 2016 removes abortion from the Queensland Criminal Code, lock stock and barrel. This is necessary, as the Explanatory Note makes clear, because “[t]he current law in Queensland is causing great hardship and personal suffering.” Further, according to Dr Carolyn De Costa, “This is the only health procedure that is dealt with like this in criminal legislation. It’s way, way out of date and belongs in the 19th century. We’re practising medicine in the 21st century.” The “Benefits of the Bill” include the following. “The Bill will repeal outdated laws that can criminalise women and doctors for a basic human right and a medical procedure…These archaic laws are dangerous and have no place in modern society where women should always have control over their own bodies. This Bill will protect vulnerable Queensland women and the doctors that are currently risking prosecution to assist them.”

In his speech introducing the bill, Mr Pyne (Cairns—Independent) made some trenchant comments.
“A Cairns District Court jury took less than an hour to find Tegan Simone Leach, 21, and her partner, Sergie Brennan, not guilty of charges of procuring an abortion…They admitted…that Ms Leach took the pills…because they were not ready to have a child. It is my position that when a young woman is not ready to have a child and chooses to terminate a pregnancy that should be a matter for her and her medical practitioner, not a matter for the state.”

He goes on, “Surely a young person should not have to ruin their young lives by proceeding with a pregnancy if they are not ready and their family and their doctor think it unadvisable.” Well, and perfectly correctly, said Mr Pyne.

However, there was one disturbing element to Mr Pyne’s speech. “Should this bill pass, the decision for the doctor would simply need to be that continuing the pregnancy poses a bigger risk to the woman than terminating it.” One has to ask, “What’s it got to do with the doctor?” Is women’s control over their own bodies now to be handed over to the medical profession?

Apparently Mr Pyne took this into consideration, for shortly before the Abortion Law Reform (Women’s Right To Choose Bill) came back from committee, Mr Pyne introduced the Health (Abortion Law Reform) Amendment Bill 2016 to clarify matters following the presumed removal of abortion from the Criminal Code. Mr Pyne’s speech in introduction showed the development of his thinking.

“Section 20 provides that only a qualified health practitioner may perform an abortion…It also says a woman does not commit an offence against this section for performing an abortion on herself.”

“Section 21 addresses abortion on a woman more than 24 weeks pregnant. It states that a doctor may perform an abortion…only if the doctor reasonably believes the continuation of the woman’s pregnancy would involve greater risk of injury to the physical or mental health of the woman than if the pregnancy were terminated; and has consulted with at least one other doctor [to the same effect.]”

This is an enormous step backwards. Not only does a distressed and vulnerable woman have to plead with one doctor to provide her “basic human right” (in Mr Pyne’s words) to the control of her own body, but she must now plead with two. This may not be as bad as it looks, though, because there does not seem to be any requirement for the second doctor to interview the patient, unless a judge decides that “reasonably believes” unreasonably requires such an interview.

The section does at least make it clear that there is no artificial and arbitrary upper limit on the period in which a woman in physical or mental danger can obtain (doctors willing) an abortion.

What happened to that talk in the earlier bill about removing abortion from the Criminal Code? Well, it does get a guernsey in a note to Section 21. “A failure by a doctor to comply with this section does not constitute an offence but may constitute behaviour for which action may be taken under the Health Practitioner Regulation National Law (Queensland), Part 8 or the Health Ombudsman Act 2013.” That is some relief.

“Section 22 concerns the duty to perform or assist in abortion. It says no-one is under a duty to perform or assist in performing an abortion…However, a doctor has a duty to perform, and a registered nurse has a duty to assist a doctor in the performance of, an abortion on a woman in an emergency if the abortion is necessary to save the life of, or to prevent a serious physical injury to, the woman.” The difference between the conditions applying in this situation and those of section 21 are quite clear. Section 21 only addresses “greater risk” of physical or mental injury by continuing the pregnancy than by terminating. Section 22 addresses an immediate threat. This provision will be worthwhile if it prevents the suicide of one desperate woman who finds herself at the mercy of the “consciences” of medical providers in, for example, a country hospital. It is important to note that this safeguard applies to all abortions, up to term.

The first bill is at least unambiguous and represents a great leap forward for Queensland. The second bill is something of a curate’s egg, but is overall a step in the right direction. There is, however, a glaring omission.

While this long-awaited clarification and rationalisation offers more security to women and the medical practitioners seeking to help them, including the important consideration that abortion is available until term, no-one seems to have considered the situation of women whose foetuses are delivered prematurely. Given that the justification for the great majority of abortions under current circumstances is concern about the mental, rather than the physical, health of the woman, this is a grievous oversight. Suppose a woman who, though in a desperate psychological condition over her pregnancy, holds off having an abortion through a certain reluctance and in the belief that she still has, say, eight weeks to decide. Suppose further that this woman has the misfortune to deliver the foetus at this time. If anything, this circumstance would render the woman’s psychological state more parlous. Yet at the very time of her greatest vulnerability and need, the state and the law turn their backs on her, denying her the undoubted benefits of an abortion in her troubled state, because of an accident of timing.

This anomaly and injustice could be addressed by defining a “nominal pregnancy.” While the details would have to be decided by extensive consultation, suppose that the minimum period of a nominal pregnancy were defined as 37 weeks. The mother of any foetus delivered before 37 weeks gestation could then seek to have her nominal pregnancy terminated on the same basis as a woman whose actual pregnancy was similarly advanced.

This is not a proposal for infanticide. Pregnancy properly lasts about 39 weeks; the foetus is not ready for the outside world until then, as the difficulties of the prematurely born attest. So such a pregnancy coming to term at the usual time reflects the proper transition from foetus to infant. A prematurely delivered foetus is physiologically, then, still a foetus, although one in more difficult circumstances than usual. Furthermore, any psychological and exacerbating financial stresses on the woman will be aggravated by the circumstances of premature delivery.

It goes without saying that the termination of what we might call an externalised foetus would be achieved in the most humane possible manner, involving no suffering to the foetus. This carefully controlled process would in fact be much more humane than the process of normal late-term abortion, with its necessarily confronting aesthetics.

Hopefully the opportunity presented by these bills will seized in full by amending the second bill to include the just principle of a “nominal pregnancy” and put Queensland at the forefront of progressive thinking on women’s issues.

Redefining marriage

Brendan O’Neill raises a point which I have never heard in the discussion before, but which I have always felt is critical. This unprecedented redefinition of the basic building block of human society rewrites the contract that the State entered into with every currently married person. How’s that for retrospective legislation? I will return to this point below.

Speculate for a moment that the purpose of this push is the destruction of the the institution of marriage. How does that fit with the observations that the original dynamic of homosexual activism was, loudly and proudly, the destruction of the bourgeois institution of marriage? Perfectly well. That same motive was expressed equally fervently by what was known radical feminism in the 70s, and which has become the taken-for-granted feminism of the teenies. If that is the major motivation it has worked very well.

Still, though, something about the appeal of marriage has not been eradicated.  Couples who have lived together for years will marry when they decide to have children.  How about that?  That has happened in my own family. Why would they do such a thing if marriage is merely a recognition of the commitment and loving relationship between two people?  So marriage is a tougher nut to crack than was first imagined, and all those young feminists are still going off and getting married before having their children. “Gay marriage” is the next move in the campaign to break the nexus between marriage, family and society.

Returning to the issue of retrospective legislation, I note that there is no provision being made for those who have grave objections to the State’s redefining marriage, and in particular their marriage, to leave the redefined state. If these legislators are to pretend to have any concern for their constituents, they must surely include a provision for those who are currently married to be awarded a divorce on the single ground that the state has violated their original contract of marriage. Such a provision would provide for the automatic transfer of the state-sanctioned marriage to a state-sanctioned civil union of the kind that was offered to homosexual couples.

Those whose marriages are, first and foremost, a sacramental union, would still be sacramentally married.  The Catholic Church, for example, does not recognise the State’s divorces.  George Weigel, after the re-election of Obama, wrote, “Thus it seems important to accelerate a serious debate within American Catholicism on whether the Church ought not pre-emptively withdraw from the civil marriage business, its clergy declining to act as agents of government in witnessing marriages for purposes of state law.” Amen. That’s not going to happen, in the US or Australia, because it takes a Church with courage, commitment and a vibrant faith to stand in open opposition to the surrounding culture and many who are nominally within its own ranks.

Nonetheless, it should be the subject of a vigorous debate now. The various churches which currently act as agents of the State in marriage ceremonies could demand that their recognition as marriage agents be withdrawn as part of any “gay marriage” enabling legislation. They would advise couples to enter into civil unions immediately before coming to the church to marry, so that their legal rights would not be threatened.  Failing the cooperation of the State, the churches could engage in their own campaign of civil diobedience, refusing to sign State marriage contracts or allow them to be introduced into the church.

I’m not holding my breath.  The prospect of “gay marriage” has receded in Australia with the election of a conservative government, even as the law has recently been changed in the UK. In the United States, the fight is bitter, unequal and undemocratic, as the fate of both Proposition 8 and Brendan Eich attests. It is understandable, then, that a debate such as George Weigel proposed is being conducted in some nooks and crannies of the American Catholic Church, and perhaps in other congregations.  It is also understandable that Weigel’s view has been rejected in such comments as I have read.

A Tale of Two Parties

The election-night convention is that the losing leader first concedes defeat, and when these formalities are out of the way the victor claims the spoils. In each case, these speeches, replete with the necessary acknowledgments and thank-yous, are delivered to a gathering of the hard-core faithful.

I recall some vivid scenes from what my memory tells me are past examples of the genre: Malcolm Fraser in victory deflecting Tammy’s adoring embrace; Fraser in defeat, at the precipice of tears, with Tammy attentive at his side; Keating alone on stage, announcing, This is one for the true believers, to a rapturous rock-concert response.

On the night of the 24th of November, it fell to John Howard to concede at the scene of so many triumphs—the Wentworth in Sydney. Such occasions are normally, naturally, sombre affairs, but there was an air of defiance and the mood was surprisingly upbeat. Howard said all the right things, dealt gently with the vocal drunk, and was cheered and applauded frequently.

A little later the scene switched to Lang Park. Kevin Rudd entered to a rapturous reception. After 11 and a half years in the wilderness, the Party was back. Then he began to speak, and we were treated to the spectacle of a victorious election-night crowd being ground down to a restless and perplexed audience by the numbing force of Kevin’s rhetoric. Every now and then the audience would rouse itself to applause at the sound of some well-worn party electioneering slogan, but they couldn’t generate any enthusiasm. It was a feat I had never witnessed before, in many years of avid election watching.

Kevin can tell a joke—an obscure joke, badly. My name is Kevin, I’m from Queensland and I’m here to help, to open his address to the national conference. In the victory speech, he made the gruesome “out-the-back-door” gesture with a small smile. It was a joking reference to the same terrible moment in his campaign ads (for example, at 2:09 in the YouTube video). Some smiling may have broken out in the audience, live and on TV, but a belly laugh it wasn’t.

Some questions beg to be asked. If this is the best Kevin can do with such a crowd, how is he going to motivate the nation to follow his lead? When he needs to communicate and persuade, what resources will be be able to employ? You wonder whether a Graham Freudenberg would do him any good. The material certainly be better, but the delivery is always going to be a problem.

But the Liberal Party has collapsed, and has abandoned the only policy plank that will actually look appealing at the end of the next three years; rejection of the anthropogenic global warming cult. Even Howard baulked before the election, under pressure from members of Cabinet. With its enthusiastic endorsement of the global warming hysteria, and the abandonment of any policies that might distinguish it from the Labor Party, it has no plan for making its way back to government, except to hope that Rudd will be another Whitlam. That is even more improbable than the hope that Hawke was going to do a Whitlam. Rudd’s total lack of charisma is not in itself a weakness. Combine it with unexpected stresses on the economy and the arrival of a Liberal leader with audience appeal, and the utter flatness of Kevin’s personality will come to be seen by everyone as a liability.

The Turn of the Worm

There’s been much brouhaha about the pulling of Channel 9’s coverage of the Howard-Rudd debate because 9 insisted on showing the “uncommitted voters” responses to the debate in the form of the “worm”, a continuously updated graph of said responses, overlaid on the bottom of the image. This despite Howard’s setting it as a condition of the debate that the “worm” not be used.

My initial attitude to the worm when it first appeared an election or two ago, was that it was a trivialising distraction, intended simply to garner a bigger audience for 9. And it is that. From that consideration, though, there arise more questionable consequences. Channel 9 is making a T.V. show, and wants to apply some showmanship. There are time-honoured ways to tweak a T.V. show. If it’s a comedy, you add canned laughter. In other circumstances, you add applause. In the days of live broadcasts, the studio audience was told when to applaud, and, presumably, when to laugh. It was much harder work.

Which brings me to the worm. Devices like dubbed applause and laughter continue because they work. Their presence will predispose an audience to hearty approval or amusement to an extent that makes their continued use worthwhile. Not enough to save a flop, obviously. Will the worm, by the same token, influence the response of viewers? I don’t know. If it has no such effect, there’s no reason to restrict it. Let’s suppose, with, I imagine, John Howard, that it does exercise such influence. One question is then, Who controls it? This device comes from the stable that brings you such examples of journalistic excellence as 60 Minutes. The networks already exercise a great deal of power during election campaigns. In that light, an extension of their influence into the debate or debates may not seem worth worrying about. Nonetheless, however small the effect, I think it one our election campaigns can do without. Which is my answer to another question: Who cares?