Making the Wrong Moves on the Rights of the Unborn

by Tory Shepherd

A man, enraged, kicks his pregnant partner in the stomach until she miscarries. A baby he didn’t want. Later, she dies. It’s a horrific image, a terrible crime. But should it be a double homicide?

The debate about the rights of the unborn is set to rev up – again – as South Australian Family First MP Robert Brokenshire prepares a Bill that declares it a crime to “destroy the life of” or do “grievous bodily harm to” a foetus.

Laws around foetuses vary from state to state. Queensland has recently expanded its laws, while a NSW review dismissed the need to. At one stage the Tasmanian Greens looked at whether a mother who smoked or drank to excess could be charged with child abuse.

Of course, you can’t start to talk about the legal status of an unborn child without also talking about abortion. As much as Family First would like to see abortion as a “red herring”, the very philosophical argument about what constitutes a person cannot help but cross over.

If the law says that it’s a crime to hurt a foetus – even if it specifies that it’s only in the context of an illegal assault – there’s then an obvious clash with the very idea of legal abortion.

And Dr Leslie Cannold – author, commentator, academic – is right to point out that when the push to change the laws around foetuses come from Family First, you have to wonder what the bigger picture is. She said:

It’s no accident that every time (these laws) get proposed it’s by organisations like Family First who are known to be anti-choice… they’ve gone at it directly before by attacking women’s right to choose, and now they’re going by the back door.

Mr Brokenshire does not want this to turn into an abortion debate, and says we should be “mature enough” to keep it separate. Maybe he means “trusting enough”.

On the surface of it, Mr Brokenshire makes a lot of sense. The community is and should be outraged if the additional horror of a dead foetus is seemingly ignored in an assault. Assaults occur on a scale, obviously. They’re all bad. Some are worse than others. A pregnancy being deliberately ended when the woman wanted that baby would add to the seriousness of the assault.

The law should always recognise that. The consequences of the assault on the victim, the victim’s family should be taken into account.

But there must be a way to do that without wading in to the murky waters. There must be a better way to do it, that perhaps in a broader sense helps victims of assault more generally by reflecting their pain, their experience, and the community’s expectations.

Politicians should have a grander aim than just a rapid-fire response to what is, really, a rare occurrence. They should be striving, constantly, to make sure that the legislation allows the judiciary to do what they should always be doing – ensuring justice is done.

Publication history

Making the Wrong Moves on The Rights of the Unborn   The Punch