Many believe that the leniency and ambiguity of The Crimes Act 1900 (NSW) in respect to abortion has led to the epidemic rate of abortions undertaken highlighting our moral failings, such opinions come from Tony Abbott, Leader of the House and federal Health Minister and a catholic and former seminarian. Abbot has said that “Even those who think that abortion is a woman’s right should be tortured by the fact that 100,000 Australian women choose to destroy their unborn babies every year”. His blunt views highlight those held by many religious sanctions, such as the Catholic Church. On the other hand there are many who declare themselves to be pro-choice about the abortion issue, such as Opposition Leader Mark Latham who believes this isn’t a simplistic issue as Abbott puts it and that social and medical reforms must take place to put the reproductive and sexual health of Australians in main concern.
When evaluating the effectiveness of the law in achieving justice in moral issues, it is important to note that an individual’s definition of justice in relation to these moral issues will greatly be reflected by the morals upheld by that individual.
It is the ambiguity of The Crimes Act 1900 (NSW) in respect to abortion that greatly hinders the effectiveness of the law in achieving justice, the lack of certainty which is produced by laws which are made obsolete through failure of enforcement by the courts has also led to the ineffectiveness of The Crimes Act 1900 (NSW) It is this fact which lends to the argument that there should be uniform abortion laws throughout Australia. Abortion should either be legalised or the law should be clarified so that no ambiguity as to the lawfulness of the procedure remains, relying on common law to fulfill justice is very limited as we than rely on the judges discretion to interpret the law. The lack of definitive laws is also a burden on the individual and society in respect to resource efficiency of the judicial system and the economic weight of legal costs the individual must pay to utilize the judicial system in order to receive justice, those who cannot afford such costs would be very disadvantaged as accessibility is only offered to those who can afford it. Another issue of effectiveness is that of compliance of the law, as if people don’t believe what they are doing is morally wrong they will not comply with the law, especially as a law such as abortion which lacks police action which has effectively led to an increase of abortion on request. Abortion on request has been the reality in Australia for about thirty years, although technically it remains a crime, with strict medical exceptions.
Euthanasia is deliberately ending a person’s life in order to stop that person’s pain and suffering. As recent experience shows, Euthanasia is a topic that is increasingly visiting the higher courts as they are invited to solve contested problems of life and death that is not addressed in The Euthanasia Laws Act 1997 (Cth). This Act Amends the Northern Territory Self Government Act 1978 to disallow the making of laws which permit or have the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia or the assisting of a person to terminate his or her life.
Again the establishment of justice is similarly hampered by those issues affecting Abortion. Ambiguity of Euthanasia Laws Act 1997 (Cth) has also increased the involvement of Common law involvement, relying on common law to achieve justice. Compliance and enforcement of the law are all issues pertaining to Euthanasia, where you have figures such as Dr. Phillip Nitschke, openly holding “death” workshops and developing processors to make the experience more efficient and painless as possible (the new Euthanasia Pill released in early June, 2004) without being prosecuted, despite assisting in Euthanasia.
On top of this we have the issue of individual’s human rights being affected. Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) provides:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Netherlands, who is one of the only countries to have legalised abortion, believes that by doing so they have no breached Article 6(1) of the ICCPR. They believe that they have the legal power to interpret the vaguely worded provisions within their domestic legal system. They also believe that they are satisfying the criteria of “respect for life” and that performing euthanasia in response to a voluntary request from a patient cannot constitute as intentional deprivation of life, merely as a more comfortable way to free the suffering.
The ambiguity of article 6(1) on euthanasia raises a number of questions including the scope of the right to life, the interpretation of 'arbitrary' deprivation of life and the definition of life and in particular when life ends. On the other hand, to allow someone to have to endure unbearable suffering could also be seen as a breach of Human rights. It’s within this thinking that has given way for defenders of the 'right to life' and those who assert the 'right to choose' when and how to die.
Many such arguments have been bought up by individuals, such as Dr. Nitschke who is passionately involved with helping sufferers end their lives; he has put himself in a very compromising position within the law to assist these people to terminate their suffering and lives. Nitschke believes all people, regardless of age or health, should have the right to take their own life, and that it should be legal to provide people with the required knowledge to do so. This concept goes against some religions foundations such as Christianity, Islamic and Judaism where this act of “suicide” and assisting suicide constitutes as sinful behavior, to which goes against all of their religious ethics and morals. Another standpoint is that of Bishop Fisher who has contended;
“Humans, indeed all species, have a strong instinct against killing each other. There is a basic moral line, and I describe it as profound respect for human life. In a society that recognises no universal religious authority, values are carried by professional institutions. And to institute euthanasia is to have two major professions crossing that moral line. You'd have the law, which upholds the respect for life, changed to allow life to be taken. And you'd have the people who are supposed to act with the most profound respect for life - the physicians - actually taking lives. As a society, we can't afford that."
To conclude, achieving justice in respect to issues of Morality such as Abortion and Euthanasia is merely impossible. In a society that is as diverse as Australia, being able to reflect the whole of society’s morals and values would be impracticable and unachievable, this is what has led to such debate over criminal justice issues such as the ones expressed in this essay.
Bibliography
Newspaper Articles
Tony Abbott steps on a moral minefield –The Age (Melbourne) – 19/3/2004
Fury, praise for Abbott’s comments on abortion – Canberra Times – 18/3/2004
Costello plays safe in abortion debate – Mark Metherell, Alexandra Smith - Sydney Morning Herald – 18/3/2004
In praise of truly Christian Politician – Angela Shanahan – The Age (Melbourne) – 19/3/2004
No cuts to abortion funding – Sydney Morning Herald – 19/3/2004
Rate of abortion highlights our moral failings – Australian – 17/3/2003
Nitschke launches suicide machine – Sydney Morning Herald - 3/12/2002
The fight to end a life – Sydney Morning Herald - 27/9/1996
Confusion over law as second person takes life – Sydney Morning Herald – 7/1/1997
Articles
Right to die: Examining euthanasia: a comparative discussion of criminal responsibility in Japan and Australia – Stanley Yeo – Alternative Law Journal Volume 28, No 2, April 2003
Essays
The Enforcement of Morals – Delvin, P – 1965
Morals and the Criminal Law – Delvin, P
Books
The Philosophy of a Law - ed. R..M. Dworkin - Oxford Pess - 1977).
Periodicals
Issues in society - Volume 173 - The Euthanasia Debate – Spinney Press
Issues in society - Volume 142 - Crime and Justice – Spinney Press
Issues in society - Volume 119 - The Abortion Debate – Spinney Press
Textbooks/Study guides
Macquarie Legal Studies
Excel Legal Studies
Websites
. - about Dr. Phillip Nitschke
- Bishop Fisher and Dr Philip Nitschke in Sydney euthanasia debate
- law and morality
– Health Law
- Court decision reignites euthanasia debate (TV program transcript)
Media Files
– interview with Nitschke
