June 25, 2003


Weirdly, the story attached to this headline doesn’t once mention abortion:

Killing unborn children may be outlawed

Apparently new legislation is to be considered in New South Wales following the death last year of an unborn baby following a car crash. The person who caused the crash wasn’t charged with any major offence because in NSW a foetus is not considered to be a child.

Abortion is legal in NSW under what is known as the Levine ruling. Seems that a new law “relating to a criminal act causing a child, capable of being born alive, to die before it has an existence independent of its mother," could alter things. Or not; I’m no lawyer, so I don’t know. Are the words “criminal act” sufficient to distinguish between abortions and unwanted deaths?

Posted by Tim Blair at June 25, 2003 07:53 PM | TrackBack

I think every death is unwanted by the foetus, whoever does it.

Posted by: Glenn at June 25, 2003 08:14 PM

Abortion isn't actually legal. It's against some section of the Crimes Act which I don't know from memory. It is however effectively legal because there's a variety of excuses that are allowed, such as those mentioned in the Levine ruling.

Posted by: Gabor at June 25, 2003 08:36 PM

I should have mentioned that this proposed new legislation would be looking to criminalise acts other than abortion which result in the death of the foetus. So it's a completely new law.

Posted by: Gabor at June 25, 2003 08:39 PM

IANAL, but the doctrine of mens rea, or criminal intent, is basic to criminal law. If the intent of the person performing the act is legal (abortion) vs illegal, you have a crime.

Posted by: SDN at June 25, 2003 10:34 PM

"capable of being born alive" I think is the key sentence there.

This is similar to the US debate of 1st/2nd/3rd trimester abortions. "Child Destruction" in Australian Law refers to foetuses 28 weeks in development or later.


Posted by: Yobbo at June 25, 2003 10:45 PM

The wording you quote reminds me of a similar bill supported by Bush that makes it an offence to harm an embryo while committing a criminal act. Of course a big hue and cry is made over Bush's bill, but not this.

The following may sound a little extreme, but if we believe embryoes have the same moral rights as born individuals, then we should do away with abortion laws and treat it as straight out manslaughter/murder. Otherwise it's a "separate but equal" system.

Posted by: Andjam at June 25, 2003 11:10 PM

I'd imagine, given the current make up of the NSW Parliament, that if it became necessary, amending legislation would be likely to get through both Houses.

Posted by: Norman at June 25, 2003 11:26 PM

Under law in most states an abortion is legal up to the second trimester (ie six months).
what is the problem? In a lot of cases I would like to see abortion legal retrospectively.
(Don't give the buggers a chance to try to crawl back into somewhere warm and safe- a bent coathanger is to good for them).

Posted by: paul bickford at June 25, 2003 11:53 PM

One believes it is the case, in common law, sstanding in law applies only to the born, not the unborn.It seems, therefore, liability applies only in regards to someone injured because of the reckless driving of the other driver.

Why only the born. An explanation would be lengthy but devolves onto the grounds of common law.To hold, the unborn also have standing, involves implications which are nonsensical.

It might seem `immoral', offensive,but common law is neutral as to morals, they are up to the individual, not the courts.
Mind, because the common law is `a-moral this is
another reason why so many including governments are rushing to overthrow common law infavour of the mishmash of Roman civil law and Boney's code but , this holds the bullet, those codes have nothing to do with liberty, grounded in fact, in freedom of commerce, so contracts, and everything to do with absolutist governments.One could sppeculate not only lawyers but the increasing number of judges also leading the charge to tyranny in Australia but here we have strayed from the immediate subject, so, finis.

Posted by: d at June 26, 2003 10:02 AM

I think such a law would be a pro-choice triumph.

Posted by: Robert at June 26, 2003 10:56 AM

Tim sees a contradiction (say, what's the diff between a con and a neo-con? I see the same patterns...) but I think misses the point about the woman's rights.

A woman choosing abortion - for whatever reason - involves her exercising control (albiet limited) over her own body. But here we have a third party destroying the foetusm without the consent of the pregnant woman, through a criminal act.

As far as I understand it, in this case the woman would not have had the right to destroy the foetus at that stage of development unless there were life-threatening circumstances.

So, Tim, while you may not agree with the principle, would you consider it more consistent and less hypocritical if we give a third party the same rights to terminate the pregnancy (without the pregnant woman's consent) as we give to the woman herself?

(Let's assume for the sake of argument that neither has the right to terminate if the baby could have been born live.)

Posted by: The at June 26, 2003 11:13 AM

Control over body ... is a bit of nonsense put up by femmo-nazis.At the end of the day, the decision to have an abortion is the responsibilty of the individual, and the freedom the individual including from coercion from governments.

One doesn't agree with abortion terribly much, some arguments for it are lame indeed. But, because of law, it is none of any government's business.

The case of a foetus dying due to injury sustained because of an accident is an altogether different.The question , in such instances , does not devolve upon termination,but the consequences of a driver's actin.
The last is the rub, since what is tested is whether the driver was, for example, culpable of dangerous driving or was it, for example, simply driver error,a mistake but not deliberate.On the other hand,the question of remedy can stand independently because irrespective of criminal culpability or not, she sustained injury because of the other driver.One of the injuries, next to property - the smashed car, is the loss of the foetus.This put things somewhat differently, but eliminates nonsense.

Posted by: d at June 26, 2003 03:42 PM