Following the overturning of Roe v Wade on 24th of June 2022, it is interesting to reflect on the history of abortion law through history.
There are basically two systems of law in the world, the common law and civil law.
The common law arose in England following the Norman Conquest of England in 1066. It was so known because it was “common" to the King's courts and was based upon the precedence of previous judicial decisions, known as the Latin doctrine of“stare decisis"(to stand by that which is decided).
This includes the adversarial system of criminal prosecution based upon the presumption of innocence until guilt is proven, as remarkably overlooked by the Victorian Court of Appeal in the Cardinal Pell case, and corrected by the High Court.
England transported the common law to its colonies, which is now the system of law in most of those countries, including Australia, Canada, Hong Kong, India and the United States of America.
The remainder of the world has the civil system of law, which is based on codified law alone and has no regard to judicial precedent. In contrast to the common law, this includes the inquisitorial system of criminal prosecution which is based upon the presumption of guilt until innocence is proven.
Civil law arose in Europe in the Middle Ages and was based upon the old Roman Law. This was codified in France by the Napoleonic Code of 1810, which abolished the feudal system and freed peasants from serfdom.
Up until the French Revolution when it was legalised, abortion was a crime in Europe. It was generally not prosecuted as a crime, but instead regarded as a serious sin. The Napoleonic Code made abortion a crime in France punishable by imprisonment, and during WWII, the Vichy pro-German Government increased the punishment to death. Marie-Louise Giraud was guillotined in France in1943 for having performed twenty- seven abortions. Following WWII, the death penalty was removed in France, but the illegality of abortion continued.
Generally, up until the 1960s abortion was illegal in the Western World in both common law and civil law jurisdictions. This article does not address the Asian countries such as China and Japan in any detail, but abortion there is widespread.
Section 58 of the Offences Against the Person Act UK (1861) made abortion a crime, punishable by a maximum term of life imprisonment. Following this, hundreds of women were incarcerated in London's Holloway Prison for terms of up to fourteen years, for having participated in an abortion.
The campaign in England for legalisation of abortion was led by the Canadian born socialist\communist Stella Browne, who in In February 1936 became the first vice-chairman of the Abortion Law Reform Association, "ALRA", and was to continue in that position until her death in 1955. In an address to the ALRA in 1936 in London, she summarized her philosophy:
What is this ban on abortion? It is a survival of the veiled face, of the barred window and the locked door, of burning, branding, mutilation and stoning; of all the pain and fear inflicted ever since the grip of ownership came down on women, thousands of years ago.”
It was only after the backlash to the severe deformities caused to babies by the drug thalidomide worldwide in the late 1950s and the early 1960s, that the pro-abortion campaigners were able to use that as a springboard in order to have abortion legalised in Great Britain. The Abortion Act(1967), which to all intents and purposes legalised abortion, received Royal Assent in 1968. This then opened the floodgates in the Western World.
The proscription of abortion in the Offences Against the Person Act (UK) 1861, remained in place, with the Abortion Act (1967), providing among other things, that an abortion was legal only if two medical practitioners were of the opinion that the continuation of the pregnancy would pose the risk of injury to the physical or mental health of the pregnant woman, or to any existing children of her family.
Of course, this signalled the end of any prosecution for any further abortions in the UK, as the abortionist and any colleague would have only to express that view, and they would, wouldn’t they?
This subterfuge was followed in the USA in the 1973 Supreme Court Case of Roe v Wade. The issue to be decided was whether the Constitution guaranteed a woman's right to privacy, and supposedly the consequent right to have an abortion. While admitting that the Constitution does not explicitly mention any right of privacy, and after referring to cases which held that the Constitution included the right to privacy, even though it did not say so explicitly, in a controversial and contrived opinion Justice Blackmun effectively held that the Constitution does include such a right. He stated in his opinion:
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
This judge-made law opened the floodgates to abortion in the United States.
In India, which operates under the common law, the Medical Termination of Pregnancy Act, 1971made abortion which was previously illegal, legal up until 20 weeks of gestation. In line with other common law countries, this was subject to the opinion of one or two registered medical practitioners (who may be abortionists), depending on the circumstances. In exceptional circumstances, the 20 weeks may be extended by leave of the court.
In South Africa, the revered Nelson Mandela was feted almost universally during his lifetime, but one of the most telling acts of his presidency has been ignored. That was the legalisation of abortion. Previous to 1997, abortion on demand was illegal in South Africa and abortions could be performed only in extremely limited circumstances. Mandela was in favour of abortion on demand, stating:
Women have the right to decide what they want to do with their bodies, like so many others, denying the right to life of the unborn child. Consequently, abortion on demand was legalized in the Choice on Termination of Pregnancy Act, signed into law by Mandela in 1997, which stated in the preamble:
This Act therefore repeals the restrictive and inaccessible provisions of the Abortion and Sterilization Act, 1975 (Act No.2 of 1975), and promotes reproductive rights and extends freedom of choice by affording every woman the right to choose whether to have an early, safe and legal termination of pregnancy according to her individual beliefs.
Not only was abortion on demand legalized up until the 13th week of pregnancy, restrictions on abortions in the second and third trimesters were little more than a formality.
In Australia, prior to Federation in 1901, each colonial State had adopted the Offences Against the Person Act UK (1861)referred to above, which made abortion illegal in any circumstances. Following Federation, abortion was made a criminal offence in each State, with the provisions drawn from the UK 1861 Act, which proscribed “unlawfully" procuring an abortion. In the 1969 Victorian case of R v Davidson, the judge, relying on semantics and ignoring stare decisis, held that an abortion was not unlawful if the mental or physical health of the mother was at risk. This was Australia's Roe v Wade, following which abortion was de facto legal in Australia, if not de jure.
All Australian States and Territories then proceeded to legalise abortion, the last being New South Wales in 2019 at the instigation of the Greens, and supported by the left of the Liberals and Labor. Prior to that, notwithstanding that abortion was a serious indictable offence, the New South Wales Government made it a criminal offence to demonstrate or pray within 150 metres of an abortion establishment where serious crimes were being committed. Similar legislation exists in all other States except Western Australia.
In January 2021, the arch pro-abortion Joe Biden promised to codify Roe v Wade so as to remove it from the jurisdiction of the Supreme Court, and for good measure to appoint pro-abortion judges to that court.
However, on the 24th of June 2022, the Supreme Court of the United States overturned Roe v Wade.
There are over 50 million abortions carried out annually worldwide. There are probably many millions more, given China's policy of forced abortion as a means of population control.
Sadly, in Australia because of the fakery, babies are murdered up until the moment of birth and beyond, in what are known as partial birth abortions In a partial birth abortion, the baby is partially extracted from the womb, is stabbed to death by the abortionist, and has its brains vacuumed out and its skull crushed, so as to enable transfer from the womb to the waste container.
While the Australian anti-child-abuse Royal Commission was in progress, scores of babies were murdered each day, some just across the road from where the Commission was sitting.
