The Sydney Morning Herald from Sydney, New South Wales, Australia • Page 8

vije Jllinfj Pinning etalfe US Supreme Court ruling on abortion SATURDAY, FEBRUARY 3, 1973 Spoils to the victors By A. R. BLACKSHIELD who is Senior Lecturer in Law in the University of New South Wales cases crowding in on the US Supreme Court over the past two years. The argument rests vn historical research by Professor Cyril Means, of New York Law School. It runs like this.

Sir Edward Coke, before his death in 1634, wrote that "if a woman be quick with childe, und by a Potion or otherwise killeth it in her wombe," this is "no murder," but nevertheless a crime great and generations of later writers have simply taken his word for it. Professor Means argues that Coke was not only wrong, but dishonest misrepresenting the older authorities because THE LABOR Party has been out of power for 23 years. Its reaction to office iias, in some areas, been unpleasantly reminiscent of a greedy small boy let loose in a tuckshop, grabbing at the goodies with both hands. Power, to be sure, is a heady thing and power so long denied doubtless headier still. Exuberance can be understood and forgiven.

But there is one very unpleasant aspect, brazenly displayed, which cannot be lightly dismissed. This is the shabby dispensation of patronage, the finding of place and perquisites for party and personal friends, and, most vulgarly, the appointment of close relations to personal staffs. Its latest manifestation, the use of VIP aircraft for family joyrides, is particularly hard to stomach when it is remembered that this is the very stick Labor in Opposition used to beat the Government. It seems a far cry now from 1967 when Labor forced a crisis on the Holt Administration by raising an outcry over the use of VIP planes. Where now is the pious horror at the abuse of privilege, the misuse of public funds? The Labor voices then raised high have given place to an embarrassed mumble.

Perhaps, it is suggested, some ministers are not quite familiar with the rules for the use of VIP aircraft. Perhaps they need spelling out again. Perhaps they do the public would certainly like to know where these loud exponents of good government and equal opportunity for all, these bold tiltcrs at the windmills of privilege, formally stand on this. But why should any Labor minister need to know the rules? Surely, rules or no rules, this is a matter of conscience on which the Labor Party has made its stand abundantly clear. Are the morals of Opposition different from the morals of Government, the sjis of Clapham chaste in Martaban? Yet it is less the morality of these actions and the grubby attitude of "spoils to the victors" they reflect which will stick in the Australian craw than their unabashed blatancy and the total contempt for public opinion it implies.

This sort of thing, is even more damaging to the Labor Party as it begins to project its image in Government than the regular demarcation disputes between its ministers or their flouting of their leader's authority. Court's holding that the unborn child is not protected by constitutional guarantees of "rights." Although this is stated as a holding about the US Fourteenth Amendment, it is really a judgment on an issue of fundamental legal principle: do the unborn have legal rights? The legal rights (or lack of them) of the unborn have figured largely in the rhetoric on both sides of the abortion debate. What the Supreme Court has now made clear is that-this rhetoric is largely irrelevant. The basic principle of British and American law has always been that legal rights are acquired only at birth. Exceptions to this principle or ways around it (notably as to inheritance of property) have also been established for centuries.

But each such exception rests on the need to give effect to particular policies underlying particular branches of law. There is no implication of general legal rights, and no possibility of transferring rights from one area of law to another. The Privy Council is shortly to hear an appeal from Victoria on whether a child can sue for injuries sustained in a motor car accident while still in the mother's womb. That is a question about the purposes and policies of actions for negligence. No decision of it either way will carry any implication as to whether or not the criminal law should be used to prohibit abortion.

That is a question about the purposes and policies of criminal law. Neither question can be answered, nor even made relevant to the other, by asserting (or denying) some general legal right of the unborn. There is no such general right. Indeed, the Victorian judgments which the Privy Council will be asked to affirm made it clear that the right to bring legal actions arises only after birth, but can then be used retrospectively to sue for injuries sustained before birth. Even this decision, then, really denied that unborn children have rights; and the new Supreme Court decision adds powerful weight to that denial.

The second aspect of the American litigation which may be relevant here Is an argument which figured only indirectly in this week's judgment, but has been very fully explored in some of the other abortion some abortions are "lawful" and others are not; and the efforts of English and Australian judges to make sense of this distinction for juries have already achieved some liberalisation of the law. But, strictly speaking, "unlawfully" in section 83 of the NSW Crimes Act must have the same meaning as it had in the English Act of 1803. And in that Act it must be read as referring back to what was the position at common law, before the Act was passed. Whatever abortions were "lawful" before 1803 would then remain "lawful" after 1803, and would still be "lawful" today. The meaning of "unlawfully" has only ever been discussed in summings-up for juries, never in the High Court of Australia.

That court has in the past indulged great antiquarian interest in questions of legal history; and in any consideration by it of Australian abortion laws, American readings of English history might play an important part. All this (if relevant in Australia at all) would tend to work against the "unlibera-liscd" abortion laws which most of our States still retain. But a final aspect of last week's decision would work the other way: against the validity of South Australia's "liberalised" law. Among the conditions which limit the "right" to abortion in South Australia is one of residence in that State; and last week's decision established that similar residence requirements in the laws of 14 American States were unconstitutional because they discriminate against out-of State women. The US Constitution (Article IV) requires that "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The Australian Constitution (section 117) requires that "A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State." Hitherto, the idea that the South Australian abortion law might violate section 117 has been dismissed by most lawyers as fanciful.

After the US decision, we may have to think again. Capital defence felony, the accused was released." In 1348 "one was indicted for killing a child in the womb of its mother, and the opinion was that he shall not be arrested on this indictment." In 1601 a distinction was drawn between cases "where the child is born dead, and where it is born living, for if it be dead born it is no murder." Clearly, whatever the view of the Church and its ecclesiastical courts, abortion was no crime at common law. If Coke was really wrong 350 years ago, what then? In the US, the answer depends on the Fourteenth Amendment's protection of "liberty." It is sometimes said that this "liberty" must be historically defined, by asking what ancient common law "liberties" were brought to the American colonics by the first settlers there. If the common law allowed abortion, then this was a part of and even if Coke successfully changed the position at common law, the first American colonies had been settled before he wrote. On this basis, US abortions would have constitutional protection but only within an area which is subject to legislative invasion for good public reasons, of which "public health" is one.

Nineteenth century anti-abortion laws, designed to protect pregnant women against the primitive surgical conditions of that ccr tury. were therefore valid ever, though they impinged upon "liberty." But today, as last week's judgment stressed, the mortality rate from abortions in the early stages of pregnancy is as low as (or lower than) the rate for normal childbirth. As abortion has become safer, the justification for State infringement of "liberty" has faded away; and laws which were valid a century ago can no longer be sustained. The Australian relevance of common law "liberty" (assuming that this is historically proven) is of course quite different. The statutory provisions as to abortion in most Australian States arc modelled on the English statute of 1803; and, like it, prohibit only abortions performed "unlawfully." This implies that THE UNITED STATES Supreme Court has ruled that laws against abortion violate the US Constitution, even when they allow an exception "for the purpose of saving the life of the mother." The court held that such laws infringe a constitutional "right to privacy," by interfering with a woman's relationship to her own body.

There is no possible way in which such reasoning could be used in Australia. The point is not just that our Constitution makes no provision for for the US Constitution makes no such provision, either. The "right to privacy" used last week was invented in a Supreme Court decision in 196S, which presented the right as a "penumbra" inferred from such specific provisions as those against self-incrimination and unreasonable searches and seizures. The Court's 1965 jigsaw-puzzle operation on these provisions would be impossible to imagine in any Australian court, even if analogous jigsaw pieces were available (as they are not) in Australia. Even in 1965, no one foresaw the next step.

This was that, from 1969 on, American courts began to use the new "right to privacy" as a weapon against the whole range of "fienccs (mainly sexual ones) in which criminal law is used to enforce morality. Whether the law should be used in this way has been intensely controversial for a decade (indeed, for a century). By asserting that each such law invades the "privacy" of the offender, American courts have found that they can simply bypass the whole controversy. The solution may be intellectually dishonest: but it works. Against this background, the Supreme Court decision was wholly predictable.

Yet the past two years have seen at least eight challenges to abortion laws in the Supreme Court; and until last week the court hod avoided giving any decision. It seems clear that the court (as it often docs on controversial issues) was waiting until it judged that the climate of public opinion was ready to accept its decision. The fact that this was "judicial law-making" in a broad sense is no problem. In an equally broad sense, "judicial law-making" happens in every country. But the court did not confine itself to a broad judicial conclusion.

It went on to lay down detailed rules for all abortion laws. Abortion by a doctor during the first three months of pregnancy is to be absolutely protected; for "the next three or four months" licence requirements, and operative standards, may be imposed by law; and after that abortion may still be validly forbidden. In recent years the court has embarked on similar detailed rule-making in several other areas (police line-ups, electoral boundaries, But its power to do so is still controversial. It makes functional sense for the court in one case to explain what might otherwise take a dozen cases to find out: to give clear guidance as to what is now allowed, and what is not. Even so, it is argued, detailed rule-making is not a job for courts.

Parallel examples can be found even in the Australian High Court (for instance as to "freedom of interstate trade" in 1955). But on this ground, also, last week's decision will not cut much ice in Australia. In short, the decision may seem to give symbolic comfort, and even perhaps political support, to opponents of Australian abortion laws. But its legal impact here is confined to three peripheral points. The first is the Supreme Chief Justice Burger of the US Supreme Court.

THE FEDERAL Treasurer's announcement of further controls on overseas capital is a logical extension of the previously existing controls on short-term capital inflow. Although such controls arc in principle bad, and regarded as such by the International Monetary Fund and the Organisation for Economic Co-operation and Development, no one is really in a position to point a finger at Australia at present. Short-term capital controls have become very much the order of the day on the international monetary scene. No doubt the extension of controls will ensure that capital inflow drops quite sharply. The figures so far available for January, which are subject to a number of reservations, indicate that the December measures of revaluation and compulsory deposits with the Reserve Bank are already having a marked effect.

The new series of measures directed against intercompany accounts, deferred payment for imports and other obvious channels for avoidance of capital inflow controls must toughen the impact. This is particularly so because of the previous lack of experience in Australia of these sort of inflow controls. Unlike Europe, companies operating here will not have sophisticated avoidance techniques developed by long practice that can be implemented within a reasonably short period. It is likely to take some time to develop these techniques, although the history of exchange controls dictates that they will be developed eventually if local circumstances warrant it. During the period that the controls will be effective it is impossible to be precise, or even reasonably accurate, about their likely effects on excessive domestic liquidity.

The authorities are operating as much in the dark as anybody else, and it is always possible that the measures may go too far in the direction of cutting liquidity back. Much will depend on the pace of domestic economic recovery. Meanwhile, little progress is being made abroad on development of a system of more realistic exchange rates or measures to ensure the necessary flexibility of exchange rate adjustments, essential to a viable international monetary system. Growing signs of weakness and instability in the Smithsonian rates have emerged in recent weeks with the floating of the Swiss franc, the two-tier lira and the weakening of the dollar in foreign markets. As long as the dollar remains inconvertible the US balance of pavments is invulnerable and other countries may be forced to follow the trend towards floating rates, like it or not, if the world is faced with a new monetary crisis.

(in Coke's own words) "so horrible an offence should not go unpunished." Bracton (about 1250) had written that abortion was but with that even Coke disagreed. Stanford (1557) wrote that "if a man killed a child in the womb of its mother: this is not a and Lambardc (1581) that "if a childe be destroyed in the mothers belly, is no manslaycr nor Felone." But these are only opinions. English common law really depends upon decided cases; and only three abortion cases before Coke's time (and indeed before 1880) can be found. In 1327, "for the reason that the Justices were unwilling to adjudge this thing a Not so humble Letters TO THE EDITOR Hospital for Mount Druitt area SIR The Minister for Health's idea for a Catholic hospital in the Mount Druitt area will be a mixed blessing for this part of the world. The most serious problem facing us here is overpopulation coupled with the fact that almost all of us are it a very low income group.

The most important needs here, in order of importance, are A family planning clinic A hospital general surgical, children's, obstetric. A public transport system and it looks as though buses are the only possibility. A Catholic hospital is all right where there's a choice of hospitals, but where it is the only one it is not the right thing for Mount Druitt. We need a hospital which will have a family planning clinic with some realistic ideas about the problem. Catholic hospitals will not have performed on their premises tubal tying, vasectomy, or co-operate in the dissemination of any contraceptive knowledge of a reliable nature, or the fitting of any contraceptive device.

MICHAEL FARRELL. Lethbridge Park. AT THIS time it is appropriate to quote some famous last words attributed to William Pitt the Younger: "I think I could eat one of Bellamy's meat pics." Such a valedictory remark, if made today, would be an advertising man's dream, but it couldn't very well be adopted as a slogan for National Pic Week, which, we are told, takes place soon. It would be regarded as too much of a "puff" for a particular manufacturer. Moreover it would explode the carefully nurtured myth that the meat pie was practically an Australian invention like beer, and certain ancient cuss words.

The fact is that Australia is not the only country where pie-eating is a cult. A century ago Harriet Beecher Stowe claimed that although the pie was an English institution it had, "when planted on American soil, run rampant and burst forth into an untold variety of genera and species." So there! These were not the words with which she launched the American Civil War, but if they had been written somewhat earlier they might well have stoked the fires of the War of Independence. Nevertheless the phrase "as American as apple pie" is misleading. Apple pie is no more indigenously American than meat pic is Australian. The American contribution to the apple pie has been to serve it with ice cream and call it, not without reason, "pie alia mud" (or, if you insist, "pie a la The Australian contribution to the meat pie has been to make it "individual," douse it with tomato sauce and serve it straight that is to say straight from seller to customer untouched by anything but human hands.

Obviously, to keep up with our great and powerful friends (if any) we must give this dainty Australian dish a fancy French name how about pics-de-resistance? But of course National Pie Week is designed to promote not only meat pics but pies in all their infinite variety, not withered by age nor staled by custom. They include, let us hope, such exotics as the pizza and the Perigord. It should be unnecessary to explain that a Perigord is a pie flavoured with truffles. Anybody who doesn't know THAT doesn't belong in the upper crust. quarters or at the overseas airport or some such location.

Or does Qantas need the monev to help pav its pilots? (Mrs) J. M. RUTLPOGE. Chatswood. Chinese beer SIR China has a chauvinistic idea of Australian beer January 27).

There are quite a number of very good beers in China. Bai-yun beer, brewed in the Pearl River Brewery at Canton, Tsingtao beer and Beijing lager, to name a few, are equal to the best of world beers. I feci sure that if the Australian Embassy staff are connoisseurs of beer they will enjoy Chinese beers, and the price one shilling and sixpence per bottle in 1967. Maybe the origin of Chinese breweries was in British occupation. NELL BAIRSTOW.

Sofala. SAYINGS OF THE WEEK Labor health insurance scheme SIR I am impressed with the drive and energy shown by the Minister for Social Security (Mr Haydcn) in appointing an expert committee which will plan the implementation of the Labor Party's health insurance scheme. It is appreciated that the committee's recommendations are to be published and that die community will be afforded an opportunity to offer "constructive ideas which would improve the scheme or identify detects" (to quote Mr Hayden's official statement). Though the committee, under the chairmanship of Dr Deeble, an eminent economist, consists of some of the ablest planners and most experienced public servants, it does not in my opinion include the most vital human elements without whose constant counsel the success of die entire enterprise is being jeopardised. There is no direct representation on the Deeble committee of (1) The patient who, as mass consumer of the likely facilities, will pay for the entire venture from his weekly pay packet or monthly salary cheque.

(2) Private medical practitioners who are treating the bulk of patients and without whose expertise and co-operation no health scheme can function satisfactorily. While it may be argued that each member of the committee is, in fact, a consumer and that the Australian Medical Association has been invited to offer a detailed submission to the committee, it is equally valid to point out that neither the voice of the practising doctor nor that of his patient will be heard while the experts decide the fate of both. JOHN M. BANKS, President, NSW branch AMA. Sydney.

The book'covering situation SIR As the mother of a 10-yeir-old son, I write to you in desperation in a plea for all other parents in the same book-covering situation as I am. I have a sneaking suspicion that, somewhere in the dark offices of the Education Department, there sits a neurotic, frustrated dictator who early in his career was not allowed to cover his pretty picture books with brown paper as a child. Now this masochist, whoever he be, is allowed to dream glorious dreams of thousands of muttering, mind-blown parents all over Sydney, spending their precious evenings helping if not doing the whole job themselves to cover hundreds of flimsy, cheap, exercise hooks with brown paper and lovely plastic sheeting. Have you ever tried to cover a thin exercise book with plastic? 1 find it requires the skill of an efficiency expert even to fold the sliding, slippery mass of nothing. Or is it a plot to give us occupational therapy? Can we unite as a body and explode the myth that plastic-covered exercise books improve the contents of the bookwork inside? Greasy-fingered children could perhaps be the answer but why brown paper, then plastic? And why all of this to cover a 7c book? I fear the first month of every school year, as children arrive home with at least 13 books to be plastered with plastic.

Parents of the world, unite, be-fore we too end up covered in cellotape and plastic. (Mrs) SHIRLEY HOSK1NS. North Bondi. Pop in the rain SIR Force One International, the promoters of last Sunday's rock-concert at Rand-wick, grossed about $130,000. Neither the demands of their entertainers nor the expectations of their audience were considered.

It had been raining for the 36 hours prior to the advertised starting time of 1 pm. No attempt had been made to project the stage-right and roof scaffolding so as to shield both stage and performer from die weather. At 4 pm the music began, minus the four local groups who had been scheduled to appear. The bedraggled who inquired were refused a refund. The promoters had made another killing: Australia's long-suffering pop fans had been ripped off again.

Thanks, Lindisfame and friends, for your musical excellence; unfortunate that it was pitted against such mismanagement. ROD HURLEY. Paddington. The 'air-fare' Nolans SIR I was dismayed to read that Qantas plans to dispose of a number of Sidney Nolan paintings (acquired in such interesting circumstances) by auction, hoping to get $3000 each. Surely a company like Qantas could afford to display the paintings where the public might enjoy them at it! city head We can't help it if NSW has to go underground for its coal.

Queensland Premier, Mr Bjelkc Petersen. You can't have a four-party meeting with only three parties VS official in Saigon. We try to sell the idea that one does not need to come to school armed. VS school administrator. It is not the Government's policy to wave a big stick.

New Zealand's Prime Minister, Mr Norman Kirk. It is time to get big government off your back and out of your pocket. President Nixon. To find a way of escaping taxes is not especially dirty in the eyes of Swiss bankers and financiers. Dr Ernst Egli, Swiss financier.

All the faces here this evening seem to be bloody Poms. Prince Charles, at an Australia Day Dinner in London. Experience shows that dogs often bark if they are too closely confined. Paper prepared hy Department of the Australian Capital Territory. Lord Carrington is not just another lord.

Mr Whitlam. All comedy does not have to be controversial although there will always be exceptions. Mr Bill Cotton, head of the BBCs light entertainment department. When you have 5,000 people in one place you quickly realise that there will be at least 100 yahoos among them. Mr Des Sullivan, manager of Rottnest Island, WA tourist resort.

Their inspiration is partly Teutonic-democratic, enlivened perhaps by a mixture of the trendy neo-Marxism of the kind adopted sometimes during a brief tenure of office of a president of Latin-American banana States. Mr Harold Wilson, on British ami' Inflation measures. Oh, for a Muse of fire that would ascend the brightest heaven- of invention Shakespeare..