Around the world, two words – Roe v Wade – have become synonymous with the right to reproductive freedom.
The Roe in question is Jane McCorvey, a Texan woman who, in 1970, entered her struggle to end a pregnancy. the US Constitution did not explicitly mention abortion, but implied the right to privacy that extended to reproductive decisions.
For nearly 50 years, that reasoning granted Americans the constitutional right to abortion in the first three months of pregnancy and prevented states from banning them in the second trimester. That is until the same court voted late Saturday to overturn the ruling, allowing individual states to create their own abortion laws.
Across the world, Prime Minister Anthony Albanese described the move as a “setback for women and their right to control their own bodies” and reiterated that access to abortion in Australia is “not a matter of partisan political debate”.
But it wasn’t always like that. In the years leading up to Roe v Wade, another lesser-known abortion access case was heard before the Victorian Supreme Court – and it paved the way for reproductive rights in Australia.
Introducing the Menhennitt Pronunciation
In the Australia of the 1950s and ’60s, there was already a nascent campaign for greater reproductive freedom – but unlike the feminist movements that came later, medical professionals were often on the front lines.
“This was basically on the grounds that unsafe abortion could be very dangerous,” said Dr Erica Millar, an expert on abortion services in Australia at La Trobe University. “And they were tired of dealing with patients with abortion complications and also thinking about the real toll it takes on a person.”
By the late 1960s, abortions were already commonplace, performed by physicians and non-medical professionals, despite being a criminal offense in all states and territories. Among those who offered abortions was Melbourne gynecologist Ken Davidson.
“He deliberately broke the law to be arrested because he wanted to challenge the violation,” Millar said. In Victoria, she says, very few people were charged with violating the abortion law at the time. “It was one of those crimes that are on the books but not actually enforced.”
This changed in 1967, according to a report by journalist Gideon Haigh in his book The Racket: How Abortion Became Legal in Australia, when murder plot detectives raided Davidson’s operating room in East Melbourne after receiving a tip that he had a abortion that morning.
Two years later, Davidson stood before the Victorian Supreme Court and was charged with four charges of wrongfully using a device to induce a miscarriage and one charge of conspiracy to wrongfully commit a miscarriage. The case was heard the same year that South Australia moved for the right to doctors to perform early abortions if a pregnancy could harm a person’s physical or mental health.
In what would set a nationwide precedent, Victorian Supreme Court judge Clifford Menhennitt ruled that abortion was not illegal if a doctor sincerely believed that a person’s physical or mental health would be “seriously” endangered if the pregnancy continued.
The judgment was based on the “principle of necessity,” often referred to as the “less evil” approach—basically the idea that you can break the literal law if the harm will be less than the alternative.
“What Menhennitt said was that if you can show that abortion was the lesser evil in the circumstances, it becomes a legal abortion,” said Mark Rankin, a senior lecturer at Flinders’ University Law School and an expert on Australian abortion law.
According to a parliament research paper on Australia’s abortion law, this interpretation of unlawful was less restrictive than the test set out in an earlier English case, “significantly reducing the level of health hazard required before an abortion can be legalized.” executed”.
However, the ruling did not establish that a doctor was allowed to perform an abortion for reasons other than health reasons and “she certainly did not allow an abortion because the pregnant woman simply did not want to continue the pregnancy”.
Still, Millar says it marked a “huge shift” and in practice meant doctors were free to perform abortions on the basis that being forced to continue a pregnancy against a person’s will is almost always more harmful. was deemed beyond a termination.
“The Menhennitt ruling gave doctors the flexibility to perform an abortion primarily on a pregnant person’s choice,” she says. “But the problem was it said it was a doctor’s decision, so it relied heavily on finding the right doctor.”
This framework remained the status quo until 2008, when Victoria removed abortion from the Crimes Act.
“Because abortion was so freely provided, in terms of abortion provision, very little happened with that law,” Millar says. “While it is important for the law to recognize abortion as a pregnant person’s choice, it was almost symbolic in terms of amenities.”
A national precedent
Despite South Australia having already moved to improve access to abortion, Rankin describes the Menhennitt ruling as “hugely important” to Australia.
That’s largely because, while South Australian law only extended to that jurisdiction, the Victorian case ruling provided “convincing authority” or a soft precedent for similar actions in other states and territories.
Where South Australian law required two doctors to sign a decision to offer an abortion, the Menhennitt ruling also required only one doctor to make the call.
The verdict “quickly resonated across the country,” Louise Anderson, head of the Victorian Supreme Court told the ABC in 2016, forcing states and territories to respond “in a way that reflected women’s right to make those very difficult decisions.” to take over their lives and families”.
It didn’t take long for NSW to adopt the Menhennitt ruling and build on it. In 1971, a district court passed the verdict, but expanded the terms of physical and mental health to include economic and social reasons why abortion may be necessary. That decision is now known as the Levine ruling.
Three years later, in 1974, the Northern Territory introduced legislation similar to that in South Australia. Then, in 1986, another case law decision – the McGuire ruling – was handed down in Queensland, confirming the interpretation of the law as set forth by Menhennitt.
“Menhennitt’s ruling over time, with minor differences here and there, was a huge influence because it essentially reflected the law not only in Victoria but also in NSW and Queensland, the vast majority of the Australian population Rankin says.
Both Queensland and New South Wales decriminalized abortion in 2018 and 2019 respectively, meaning the Menhennitt ruling is no longer relied upon (Western Australia is now the only Australian state or territory where abortion is still in the criminal code). But during his lifetime, Rankin says, the ruling’s influence on Australia — both symbolically and practically — was comparable to Roe v Wade in the United States.
How it differed from Roe v Wade
However, there were some important limitations to the Menhennitt statement. The most important of these dealt with the way abortion was treated in Australia for decades.
Roe v Wade granted Americans the positive right to abortion under the Constitution. Australia’s equivalent, on the other hand, simply offered a defense against a crime. It also left the final decision on the matter in the hands of a doctor, rather than the person wishing to have an abortion. “One talks about rights and therefore creates limits to the exercise of legislature by the American states, the other is really just developing a defense against crime, but says nothing about the crime itself,” says Rankin. .
Because Roe v Wade touched on the US Constitution – as opposed to Australian case law on abortion – it also had immediate national impact. “It was more top-down than bottom-up,” Millar says. “It wasn’t as organic as the law change in Australia, but it was also more comprehensive because it was the pregnant woman’s choice over doctors.”
With the reversal of Roe v Wade, the power to legally regulate access to abortion has now been returned to the states, making it more in line with the Australian system, albeit in a very different partisan reality.
But Rankin believes there is also a big similarity between Roe v Wade and the Menhennitt ruling: Both are set on “awkward and fragile” legal grounds. While Australian law relied on the defense of necessity, which was open to subjective interpretation, US law was based on the equally unstable right to privacy.
“It’s not a good basis for that because it’s very easy for a court to later say the necessity doesn’t apply to abortion because it’s not the lesser evil,” Rankin said. “It’s a subjective approach, meaning the court has to make a moral judgment.”
Even now in Australia, Millar says the system is far from perfect. “We’ve had legal access to abortion in Australia for 50 years, but we don’t have optimal access — far from it,” said Millar.
“It’s a zip code lottery how much you pay and whether you have access to abortion. Legal abortion does not equal local and accessible abortion.”