I've been interested in developments around the law for some time. And unlike many others who would agree with a lot of my views, I have qualified support for the principles behind Zoe's Law 2, if not its exact wording.

While this is a personal article, and does not represent the NSW Humanists position, I am President of that group, and have written in support of access to abortion. I have participated in protests in support of abortion - including one where we were challenging a march from the local Catholic Church to the local abortion clinic - or another in the face of a prayerful vigil - intimidation by prayer - at another abortion clinic. Sometimes women look at me a bit strange - but, other times, they have cheered on my initiative - it does happen. It's heartening and uplifting when it does happen.

So, I'm certainly in support of access to abortion. But, in this world, laws that affect women are debated and discussed by a large number of men. Men are the majority in Parliament, and so laws affecting women are determined by men. But, like Ted Mack, if there were to be a referendum on abortion, I'd be happy if only women voted in it. But nevertheless, in this world, we all get involved in debate; I've heard a bad chord, and I do feel the urge to comment.

But what we're talking about here is not so much laws around abortion, but rather laws which only come into play when there are injuries to pregnant women resulting in the death of the foetus. What also seems to be at issue is how this would impact on the laws around abortion.

But what was the issue that triggered all this? One which I am rather sympathetic to?

Contents

1. 1. Christmas Day, 2009
2. 2. Foetal Personhood and Potentiality
3. 3. Unforeseen consequences, legal issues, and the Slippery Slope
4. 4. Motivations and history, not concepts?
5. 5. A wanted foetus becoming a wanted baby
6. 6. Who owns the law?

Jenny Noyes, writing in Junkee :

It was Christmas Day in 2009 when Brodie's life was turned upside down. Eight months pregnant, she'd been walking along the footpath when a minivan steered by a drug-affected driver veered off the road and smashed into her. Badly injured, she was also pinned between trees and partly under the vehicle, and it took three hours to free her from the scene. Brodie was airlifted to the hospital, and when she arrived, her unborn daughter Zoe still had a heartbeat - but two hours later that pulse couldn't be found. Brodie had an emergency caesarean, and her daughter was stillborn.

In the months that followed, the driver was charged with dangerous driving causing grievous bodily harm against Brodie, and sentenced to two years and three months jail - but she was released after a non parole period of nine months. Court documents listed the loss of Zoe amongst Brodie's injuries, which included multiple broken bones and soft tissue damage, which Brodie understandably felt did not do justice to the reality of her loss.

Now there's a number of issues that come out of this :

• If a foetus draws breath, it is then considered a living person, and then considered something which was injured.
• Paradoxically, if Ms. Donegan has been less injured, the foetus might have survived long enough to draw breath, and if it had then died as a result of injuries previously received, the criminal would then have charged with a greater crime.
• Is a sentence of two years and three months jail, which was then reduced to the non parole period of nine months - appropriate? In the context of the injury done - and in the context of penalties applied to other crimes? Would there have been a greater penalty if Ms. Donegan had been less injured, with the foetus surviving long enough to draw breath and then die?

Now - when so much relies on whether a baby draws breath or not - it seems very arbitrary and inconsistent to me. Now, the NSW Bar Association make the point that the "proposed definition designed to distinguish between a foetus which is treated as part of the pregnant woman and an 'unborn child' which is treated as a distinct 'living person', is arbitrary." Well, um, yeah ... they have a point. But the thing is, so much relying on whether the child draws breath also seems pretty arbitrary ( depending on just what the word "arbitrary" means. You can imagine what I was thinking of writing. I won't. ).

But there's another important part of this whole debate that has not been considered at all. Just how did the judge rationalise the sentence he gave? Was it reasonable? I can't imagine he just consulted an oracle which gave him a number. Maybe there's some detail in the original judgement, but nobody seems to be looking at that.

Because, in the Campbell review, the author said that maximum sentences for the different crimes enabled the justice system to respond appropriately to different crimes. Well, I don't want any increases in the maximum sentences either. What is not at issue is whether the system is able to respond to different crimes. What is at is issue is whether it is obliged to in particular cases. We can wonder if it was necessarily obliged to in Ms. Brodie's case, and whether it did.

In order to answer that question, we need to look at the details of Ms. Brodie's case, and how the judge approached the issues. Strangely, I can't see any commentators actually engaging with this level of detail. The Campbell review seems to leave out a synopsis or commentary on the judge's decision. ( Please let me know if you know of one). Problem is, typing "Donegan" into the NSW Caselaw website yields no references. I'm no expert at searching the web for cases; maybe someone else can track it down; in any case, if there's something out there, The Man isn't making it easy.

So, much as I'd like to answer this question by looking deeper, I can't. We can only think that maybe Ms. Donegan has a point ... something could be seriously wrong with what happened in Ms. Donegan's case, and that stuff about "whether the baby draws breath" really seems strange. But that doesn't mean we need to recognise foetal personhood, either.

Now, one thing I challenge later is that even if the law were to pass in the manner currently put forward, I don't believe it is as threatening as is made out. Still, it seems to be the major issue: recognition of "foetal personhood" in order to obtain prosecution for this harm as a separate category of crime.

However, let's consider : what are we arguing about? Recognition of harm to the mother's foetus, because it is able to turn into a child. A recognition of a denial of that potentiality. Before the baby draws breath there is a vacuum, a void, of nothing. Now, I could still live with "personhood" happening when he baby draws breath if there were something before that.

And what is that concept? Injury to a mother resulting in a denial of a mother's interest in a wanted foetus becoming a wanted child. We don't remove the foetus from the conceptual legal space of the mother, but we still recognise injury to it.

This conception puts further firewalls in between it and the damage that some people hypothesise. But let's look at the details of that possible damage.

In a lot of debate, the issue is not what this thing is, but rather its consequences. In introducing Voluntary Euthanasia, it's not that we're alleviating suffering, but rather all those evil people who will want to knock off dear old granny ( even though overseas experience does not back this up). Recognising same-sex marriage is not about recognising the love two people have for each other in same way as we recognise the love other people in society have, it is the fact that society will somehow collapse into civil disorder as we proceed to trash our traditions and start our irrevocable journey into darkness.

But I've spoken up for Voluntary Euthanasia and Same-Sex Marriage, and I've shaken my head at these arguments which are trotted forward. For it does seem ... if something is an issue now - one worth making a lot of fuss over, how is that in the future people it will suddenly cease to be an issue, and people will suddenly cease making a fuss over it?

While there's some recognition of injury to a mother and her wanted foetus, it's claimed that recognition of the concept of foetal personhood will have consequences in other areas of law, where the concept will be used to deny women their freedoms.

And certainly, it's wrong to say that women have a "right" to an abortion. They can ask the state, and the state will consult the goat entrails and decide whether it will approve. OK. I understand women have found this process demeaning. Women are able to apply for an abortion, but that's not the same thing as having a right to an abortion. I understand the distinction, but it seems many people do not.

And what's the history of this? Section 83 of the Crimes Act, 1900, notes:

Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

Now, Mr. B ( Mr. A would have been too obvious), my legally qualified friend, wonders why there would be a statute which does not define what "unlawful" is, because that's in fact what the Parliament is supposed to do - define what is unlawful, and let the courts go at it from there. But being too much of a controversial issue, Parliament did not engage with the detail, and left it to the courts to decide. Apparently this does happen from time to time. Rather than "clarifying laws on behalf of the general population", Parliament "dodges being nailed down on controversial issues".

Mr. B goes on to say :

Ultimately, this was done by Justice Levine in the 1971 case of Regina v Wald. Basically, he said that an abortion would not be unlawful if it was skillfully carried out by a competent medical professional who conscientiously believed that the procedure was necessary to avert a serious danger to the woman's mental or physical health. As the Crown would need to establish beyond reasonable doubt that such a conscientious belief was not held by the medical practitioner in question prosecutions for unlawful abortion have been pretty rare ever since.

We had the Levine ruling in NSW; similarly, there was the Menhennitt ruling in the Victorian Supreme Court. In any case, this provides the background to why women do not have a "right" to abortion; we have a rather messy legal legacy, one that ( in spite of several attempts ) has not been overturned.

But how is it that this law could change our current legal framework? There does seem to be the echo of the "slippery slope" argument - except it used to be the bad guys using it. We have become the enemy.

Mr. B notes that the original section 83 clause never identified the foetus as a person - otherwise the charge would have been for murder. The charge related to unlawful administration of drugs or other interventions. The bill declares that "For the purposes of an applicable offence an unborn child is taken to be a living person despite any rule of law to the contrary". Yup. OK, foetal personhood, the recognition of "an unborn child" for the purposes of the act, and not for any other purpose. Why should this "recognition" leak into other areas of legislation, with it being explicitly quarantined?. There's further "quarantining" with the offences being limited to grevious bodily harm and not homicide. There's a further quarantining, with the exclusion of "Anything done in the course of a medical procedure or treatment; or ... Anything done by, or with the consent of, the pregnant woman concerned."

Mr. B continues :

This exemption means that it would be almost impossible to use these provisions as a means of prosecuting someone for carrying out an abortion. It would either be a medical procedure, or something done with the consent of the woman. It's hard to see, therefore, how Zoe's Law, can be regarded as a back door route to criminalising abortion. To be sure, it does declare that a foetus is a living person and someone might say that it is inconsistent for homicide offences not to be an "applicable offence" for the purposes of the legislation. Why should it be unlawful to injure the foetus but not to kill it? But even if they were to be included, the exemption in subsection (4) would still apply and an abortion carried out with the consent of the mother would not be rendered illegal.

So, we have Mr. B's qualified legal view. While I'm not legally qualified, it sure makes sense to me. The point being that there's more than just the recognised legal view we see paraded around. And there's a lot more detail here than the "beware !" claims I've seen. And no, I can't tell you who Mr. B is. If it makes it any easier, think of these points as conversations with an imaginary person just to clarify the ideas and structure them into a bunch of quotes to make it easier to read. The ideas should make sense, regardless of their origin. If they don't, that's up to you and never mind.

So, the issue is, can such a seriously qualified idea of "foetal personhood" ever become "unqualified" to the point where it affects other legislation? I think not. However, it does seem the mere mention of the concept does set people off. Yes, I can see where they are coming from. But I think that the idea does not hold up under close examination. It is certainly contestable.

How is it that a new legal concept in one area might "unsettle" another area of law that is currently "settled"? Normally, a judge can only use their discretion when a current issue is ambiguous. Yes, then they can look around at other legislation to establish a context. But I can't see why you'd want to assume there was other than a "quarantining" within each area of legislation. You'd assume that each bit of legislation gave you the tools to deal in it, without the necessary need to look elsewhere. Indeed, this section explicitly does this.

What areas are currently ambiguous? And how would a new legal principle "unsettle" a settled area of law?

Now, people do look to the US experience. Yes, they do have a legal system, and there may be lessons to be learned. But it is a different legal system; you have to show only that bad things happen over there, but that there is sufficient similarity that they would also happen over here. Yes, bad things happen in the US - but how have they been necessarily connected to other legislation that has, in other ways, recognised foetal personhood? Just what was their idea of foetal personhood? Where have the judges re-interpreted prior existing legislation, as compared to being creative in the interpretation of freshly minted legislation with unsettled consequences?

There have been claims that the people involved in this initiative have had a prior involvement in so the so-called "pro-life" cause. Yes, Greg Smith, attorney General was previously involved in the pro-life cause. It appears comments by Damien Tudehope, Mr. Smith's chief-of-staff were that further reviews to abortion law would be "too hard", but we don't have any details of his rationale. Sure, he thought that ... but why do we automatically assume that just because our opponents are saying something that comforts them they will automatically be correct? I rather prefer to think that if enough things are shaken up, opportunities arise. Perhaps to finally decriminalise abortion and endorse women's rights to abortions, after several failed attempts over the decades.

I've not found any claimed connections between Chris Spence and the pro-life cause; maybe, just maybe he's genuine? But of course, people's motives are separate to the ideas themselves, remember? With Greg Smith's past involvement in the pro-life cause, well maybe he'll promote law that support the pro-life cause. Equally, maybe he'll just support good laws that make sense regardless. Why do we assume malice?

I've also heard that others behind this law have connections to the pro-life movement, but don't have any details (I'm happy to amend this article as details come to light). In any case, maybe they're people with expertise in law to be taken advantage of; I can't see why a past involvement anywhere automatically taints the current exercise. Perhaps the hidden claim, not spelt out, is that these people would only get involved in something if it supported the pro-life cause; they'd never support anything that was worth doing for its own sake. And that seems an extreme presupposition to me.

Then there's history. Yes, Fred Nile put up a bill previously and Jenny Noyes wrote :

Incidentally, Nile also claimed that his law had nothing to do with abortion, and had included wording to suggest it would not apply to medical procedures or actions taken by mothers. But people including Brodie Donegan saw straight through it; they were aware of Nile’s anti-abortion agenda, and could see it was the thin edge of the wedge. This new law is a problem because it’s just a thinner edge of the same wedge.

But this bill could in fact be entirely different it does not seem to me to be fair to blame a bill for anything remotely connected to it in the past. A rose can grow from a dung heap, after all. Sure, maybe Zoe's law 2 still have the problems of Zoe's law 1. But that's a matter for argument, not strong assertion.

A lot of this stuff really does have the feel of pointing a stick somewhere and saying "beware"!

Shadow Attorney General Paul Lynch ( noted by Kirsty Needham in the SMH) has noted that murder/manslaughter would have been more logical, but more politically difficult, so the concept was parked with "Grievous bodily harm". However, the wanted foetus concept only needs identifying a separate category of injury to the mother, no foetal personhood but nevertheless identification of the wanted foetus.

But what are the details of this? We want recognition of this injury and further penalty as a result. I can't imagine there would be serious legal problems in this, but I'll listen to an argument. Here I'm happy to listen to the legally qualified, but I'm keener to hear how it might be done rather than just hear claims trotted out that "it's impossible or too dangerous if it can be done".

Certainly, we want proportionality to other possible injuries. As Campbell notes, perhaps injury to the mother preventing her bearing more children should be considered a greater offence. Well, certainly. Let's keep it in proportion. And injury is not the only thing which results in the loss of a foetus. Natural miscarriages do occur. Rather than praying that God's hand of providence might not touch women making them lose wanted foetuses, Christians do prayerful intimidation at abortion clinics. Go figure.

Point is while there is the natural course of events and reasonable expectations about this natural course, injury can interfere with it. The degree of interference varies; the loss of a close-to-term foetus would mean more than an early term one. We're talking about proportionality, not arbitrariness, the thing the law society gets concerned about. But, I do think that the current "arbitrariness" of in injury to a foetus only being recognised if it draws breath is quite a problem of its own.

In putting this position forward, I'm in fact going against the prevailing view put forward by many people who identify as pro-choice. Still, from the start it did feels that there were parts of the whole Zoe's law story that did not make sense; I've engaged with them as best I can, and I hope that you see it as a considered view. I make my appeal, and it is for you to assess it as you will.

Some will claim things are being "rushed", question what laws should we change, why this one, and where does the motivation come?

A further counter-question is : how slow do things need to be before they are no longer "rushed"? Or, are things always "rushed" if something is happening we do not agree with? I'm happy for things to be debated. How long for? The events prompting this law did take place back in 2009. Humm ... You might think that knee jerk change is "populist". But, without community concern, how is the law ever going to change. That concern might be selective and populist. It might focus on "public" issues while ignoring the hidden significant ones. But at least it is a start.

I've been very critical of Alan Jones, and have written in support of the boycott here. I'm very critical of these "Shock Jocks", broadly speaking. But, nevertheless, it does seem that some very real injustices persist until the media pays attention. We write letters to parliamentarians that receive waffly answers from their staff if they even answer at all. My local MP did not return letters I sent on the topic of being able to complete my tax return with my Linux home office. And I've had other similar experiences. It should not be the case that issues are dealt with so differently depending on whether they are in the media's eye or not. But that is the reality. As problematic as popular opinion is, it is the one chance we have for real accountability and change. It a resource we should draw on, not one we should dismiss.

So, here is an item of general concern, and Chris Spence had stepped up to the plate to try to change the law. But if there's not some concern motivating someone, will the law ever change - for better or worse?

In this world, a reality is that men are making laws for women. Laws are made in parliament for all of us, by "representatives"; there's no acknowledgement of the sexual bias in this "representation". Notionally, though, men in parliament "represent" women in their electorate. But do they ever "represent" them directly? Mostly they follow party policy. And then you have "conscience votes", an excuse for the most emotional in the electorate to make threats and beat the drum. Problematic in their own way, and I can't go there now. Laws are then interpreted, usually by men, in the judiciary. Yes, there are problems. But it is the best we can do.

Still, just as war is too important to be left to the generals, politics is too important to be left to politicians; so too, law is too important to be left to the lawyers. Yes, we should engage with the views of the professionals - but let's make our own choices too. The interesting thing is that, while there have been a string of legal opinions about how this law might set a precedent, Mr. B, a legally qualified friend has a quite different view.

It would be good if we could actually own the law in an informed manner. Instead, we have a polarisation between superficial populism and the elitism of the qualified. Invariably this degenerates into name-calling and squabbling. So much for the noble traditions of Westminster Democracy.

But if we do not own the law; if we are ever and always suspicious of change; will things ever change for the better? I hope we will see progress on the laws around same-sex marriage, voluntary euthanasia and reproductive freedom. Can we think a little laterally about changing the law? Because, otherwise nothing will ever change.