| Abstract: | This article traces the abortion reform processes in the US, the UK, and Australia to reveal the underlying rhetoric and policy rationales which served to fuel abortion reform. The early abortion legislation in Great Britain, Australia, and Texas is described to lay the groundwork for a discussion on the widespread modification the laws were subject to through medical practice and judicial interpretation. In 1938, a trial judge in Britain carved out a legal loophole to sway a jury to acquit a physician who openly performed an abortion on a 14-year-old rape victim. The judge found that the law neither prohibited abortion absolutely nor permitted unrestricted medical discretion, but rather lay within the two extremes. Before the 1960s, psychiatric subterfuges were used by physicians as justification for performing abortions for "social" reasons, but reform was spearheaded by concerns about rape, incest, and fetal damage (especially after exposure to rubella or thalidomide). Reformers also argued that abortion would reduce poverty, and it soon became clear that all but the poor could obtain safe abortions. Claims were also made that abortion had historically been allowed before quickening. A new consensus grew and was encouraged by physicians who accepted abortion because it furthered social justice. The law struggled to keep up. In Britain a major reform bill was enacted by Parliament. In Australia, the police gave up trying to prosecute doctors as judges interpreted the law in such a way as to render the doctors innocent of wrongdoing, and, in the US, some states adopted liberal laws. The Roe vs. Wade decision in the US, therefore, may have made abortion a constitutional issue through use of the doctrine of privacy, but the other elements of the decision reflected the situation in the UK and Australia. For example, the Row decision relies on the physician-patient relationship to regulate abortion on demand. Also, the decision acknowledges that conflicting rights exist which allow the law to neither prohibit abortion nor leave it entirely unrestricted. In each country, the legislation is centered on the professional competence of the practitioner and on the provision of abortion before quickening. This reliance on a medical decision imbues the abortion debate with a certain ambiguity which is shared by all three countries. |
