Personhood, Foetal Rights, and Fred Nile’s Sideswipe at Abortion
Featured image shows Fred Nile’s head photoshopped onto on a Ghostbusters-style image of a white ghost with a red slash through it.
What Nile Proposes:
On the 21 Feb 2013, Reverend Fred Nile introduced a bill into the Legislative Council of NSW. The full title of the bill is “Crimes Amendment (Zoe’s Law) Bill 2013: An Act to amend the Crimes Act 1900 to prohibit conduct that causes serious harm to or the destruction of a child in utero; and for other purposes.”
Other purposes, indeed. Nile argues that his bill “specifically excludes terminations of pregnancies, abortions”. It’s worth noticing that this bill needs to. This bill sets out a situation in which abortion is legal not as an extension of the rights of a woman to control her body, but as an exception in the rights of a foetus, whose rights are in a few specific cases superseded by those of its mother.
The bill itself can be found here, along with a copy of the speech Nile gave when introducing the bill.
I actually feel that it’s worth quoting Hansard, not to hear Nile speak, but to hear when he is interrupted.
Reverend the Hon. FRED NILE: The objects of the Crimes Amendment (Zoe’s Law) Bill 2013 are to amend the Crimes Act 1900 to:
- (a) establish a separate offence for conduct causing serious harm to, or destruction of a child in utero and,
- (b) to extend the offence of dangerous driving causing death or grievous bodily harm to dangerous driving causing the destruction of, or serious harm to a child in utero.
The Opposition spokesperson has been reported in the media as saying that the Opposition does not understand the necessity for this bill. I hope my second reading speech will show the absolute necessity for this bill. That is the reason the name “Zoe” is in the title of this bill: an incident involving the baby Zoe shows why this bill is absolutely necessary. In 2011 and 2002 two public incidents drew attention to the deficiency of the law with regard to protections extended towards women during pregnancy. I emphasise that this bill provides an exemption for “medical procedures”, which is the terminology used for a termination of a pregnancy or for an abortion. This bill specifically states that it has nothing to do with an abortion or a termination of a pregnancy.
The Hon. Helen Westwood: Give women a go.
Reverend the Hon. FRED NILE: The bill states that: it is the fact.
The Hon. Cate Faehrmann: And it does that in the United States as well.
Reverend the Hon. FRED NILE: That is the point I am making.
The Hon. Matthew Mason-Cox: Point of order: I ask that members of the Opposition be asked to cease interjecting so that we can hear Reverend the Hon. Fred Nile in silence.
DEPUTY-PRESIDENT (The Hon. Paul Green): Order! Members will give respect to Reverend the Hon. Fred Nile. I appreciate that it is a sensitive topic but the member will be heard in silence.
The Hon. Cate Faehrmann and Helen Westwood are interjecting because they know that even if Nile’s bill states that it has “nothing to do” with abortion, it is all about attacking women’s rights to abortion in Australia using a strategy that has been very successful for anti-abortion lobbyists in the United States. In this little snippet of Australian parliamentary process, we hear one man try to introduce a sneaky law, two women interrupt him, and two men call for those women’s silence.
Mr Deputy-President sir, I refuse your order.
In June we enjoyed the sight of male legislators in the Texas Senate being taken aback when women wouldn’t let them be heard in dignified silence as they tried to introduce a series of anti-abortion laws.
Nile’s law might not be nearly as terrifying, but it is part of the same project to limit women’s control over their bodies.
A big reveal about the purposes of this amendment to the Crimes Act is that, as far as its stated purposes go, it’s actually unnecessary.
Why this law is unnecessary:
Since 2005, the definition of Grievous Bodily Harm includes:
the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm.
This is known as Byron’s Law.
This definition of grievous bodily harm hold the rights of the mother paramount, and still allows a crime of harm to her pregnancy to be prosecuted. Grievous bodily harm carries a maximum of 25 years in prison, if there is intention to cause harm, 14 years if the company recklessly causes harm, 10 years if a person recklessly causes harm.
In 2010, the laws around foetal death were again reviewed. In the 2010 report by the Hon. Michael Campbell QC, “Review of Laws Surrounding Criminal Incidents Involving the Death of an Unborn Child”, Campbell recommends no change be made to the current law. According to the Campbell report, the current law “appropriately reflects the seriousness of the offence and, most importantly, differentiates between abortions and criminal acts by third parties resulting in fetal death.” This differentiation is not made in a special exception (as it is in Nile’s law) but is structurally encoded in the law. A pregnancy is part of the pregnant woman, it’s not a separate legal entity. Campbell stresses that the NSW definition of grievous bodily harm means that the law doesn’t have to deal with complicated medical issues of whether a foetus was viable; importantly, it also “avoids the common law issue of whether there is ‘a creature in being’ to which harm can be done.”
Campbell’s report refers to a letter dispatched from the Attorney General’s Department to various legal bodies. The letter explains some advantages of the current law, which are:
When the injury inflicted upon the foetus is regarded as an injury to the expectant mother:
- There is no concern about the rights of the mother being superseded by the rights of the foetus (although there may be concerns about the rights of the foetus not being recognised);
- There is no need to consider whether the foetus was viable at the time of injury. The loss of the foetus at whatever stage in the pregnancy may amount to grievous bodily harm;
- There is no need to formulate an exemption for expectant mothers as the offences involving grievous bodily harm do not contemplate a person inflicting grievous bodily harm upon themselves;
- There is no need to attempt to formulate an exemption for “lawful abortions”;
- The fault element is less complicated…
Legal experts are convinced that the best way to protect foetuses is to protect mothers. Even Nile himself notes that:
…in December 2003 the Court of Criminal Appeal ruled that: ‘The close physical connection between a pregnant woman and her unborn child means that the loss of that child can constitute grievous bodily harm to the pregnant woman, even in the absence of other injury to her.’
If this is true, isn’t it actually quite powerful? The injury is to her, she is the person, the entity, involved. The anguish and the tragedy is hers, it doesn’t belong to someone like Nile who would happily use it to promote his brand of Christianity. Given his anti-choice agenda, it is extremely difficult to believe that establishing a foetus (or embryo) as a legal ‘creature in being’ is not Nile’s ultimate aim with this.
Personhood and Foetal Rights
Nile is trying to introduce into law the idea that a zygote/embryo/foetus has legal rights from the moment of conception. His intention with this bill is “broadening the scope of protection to include all stages of pregnancy”—in other words, setting legal precedent for all stages of pregnancy to be considered legal personhood.
The Power of Language
In his Second Reading Speech, Nile’s language throughout refers to both an embryo and a foetus as “a baby in the womb”, “a child” “an unborn child” and “a baby”. A specific proposal in the bill is to “[make] use of the term “child in utero” as a naming convention to cover all stages of pregnancy”, where “child in utero means the prenatal offspring of a woman.”
Melanie Fernandez from the Women’s Electoral Lobby has said:
We cannot accept a foetus being considered as a “child” in NSW law. This will set an unacceptable precedent for the way foetuses are considered in the law through granting them rights.
This is the magic of calling a foetus a child (in law). Someone who uses the child-word enthusiastically is “Mary Joseph, Project Office with the Life Marriage and Family Centre”, who Nile actually quotes as saying “We also hope the debate about Zoe’s Law in Parliament will mark a turning point in our attitude to unborn children so we can more deeply recognise and respect the beautiful and unique expression of humanity represented in each of these children and the life they have to share. ” For all the sneakiness of this bill, I feel Mary Joseph is rather showing her hand here.
At the moment, our rights to abortion rest precariously on notions of time, of there being a specific point at which our body can no longer be considered ours, but instead the property of prosecutors. As far as rights to an abortion go, we are permanently on notice. Depending on which state you live in, you have a varying amount of time to exert control over your fertility, but then your time is up.
It is the scant few weeks where a choice exists that anti-abortionists have traditionally put more and more pressure on. Nile’s attempt here is in a way more sweeping, as he attempts to establish a right to life from the moment of conception.
In his speech about the bill, Nile appropriates the language of civil rights movements, making his big point that extending the legislation backwards to include pregnancies not yet counted as foetuses is an issue of equality, of not favouring more pregnant over less pregnant women. This is what he says:
The bill also seeks to provide equal protection for all pregnant women. With the passage of the Crimes Amendment (Grievous Bodily Harm) Bill in 2005 the current Crimes Act only covers cases involving a foetus, thereby ignoring the plight of any woman who happens to be less than 63 days into her pregnancy.
The bill seeks to provide equal protections for all pregnant women by removing discrimination against women who do not fulfil the selective criteria currently defined within the Crimes Act 1900—the current law.
This is a long bow to draw. Especially as law and policymakers have specifically highlighted the advantages of the law not having to determine if a foetus is viable. The most likely interpretation of current law is that ‘the loss of the foetus at whatever stage in the pregnancy may amount to grievous bodily harm’. This is an aspect of the law that prioritises the woman’s right to justice and recompense, and its very disingenuous of Nile to suppose that the law is trying to set criteria that will lock specific women out.
What feminists are worried about:
This law could be used against pregnant women in all sorts of ways. It could be used against women who choose to have a home birth, and it could be used against midwives. It could be used against pregnant women who drink, or smoke, or take drugs, or choose to ignore recommend dietary guidelines and eat raw fish, or soft cheese. It could be used against women who stay in an abusive relationship (even when it’s a choice between abuse and homelessness)—and it could be used against women who end up homeless.
This law is far more likely to be used to imprison pregnant women (especially low-income and CALD women) than it is to dissuade anyone from committing violence against them.
Rachel Watts, in her 2012 article “Foetal homicide laws set up a competing set of rights for women”, makes the powerful point that current policies are failing to protect women from already unlawful domestic violence. Watts writes:
Assault on a woman is the result of someone else’s choice to be violent. Defining a foetus as a person does not address that choice. Women should not have to be deferential to society about the functions of their bodies. Women should know that should someone inflict violence upon her, pregnant or not, they will be dealt with seriously not because of a foetus within her, but because she has the same right as anyone else to live in peace and without fear.
In the case of a loss of or harm to a pregnancy, Watts writes:
While the heartbreak is beyond imagining, legislation covering what happens inside a woman’s body will do precisely nothing to prevent violence inflicted upon her.
Indeed, the precedent could actually be used to inflict more harm. Watts notes that the Australian Medical Association
demands we also consider punishing pregnant women who are “reckless” or who choose the circumstances under which they give birth, in the same way as for neglecting if not endangering a person.
A pregnant woman’s body belongs to her. Until the baby is born, the foetus is a part of her body, and the mother is the only legal entity in question. This is something that I believe, as a part of my feminism. It’s also the state of things the most likely to protect the most number of women, and what protects women protects their pregnancies and their babies. As Rachel Watts has said:
The way to give the best and most individual care for both women and babies is simple, trust women. Any attempt to punish “reckless mums” or to limit access to abortion prejudicially targets the most marginalised women.
The argument of anguish
About this bill, Nile says
The bill is geared to meet the anguish of women who are concerned and want something done; it is not being driven by men.
In some ways, the bill is difficult to speak against because it invokes the very real anguish of women who have lost their pregnancies. But the important question to ask is, whose interests does this bill serve? To what extent is Nile appropriating this genuine anguish for his political purposes? Well, for a start, the woman whose child this bill is named after did not give permission for the use of Zoe’s name, and is reported as saying that she does not herself support the bill. In UNSW’s Tharunka magazine, Brodie Donegan, the mother of Zoe, is quoted as saying:
I don’t support Fred Nile’s bill, or Fred Nile, and I’ve never had any communication with his office. We don’t want loopholes for a bill to be further amended to limit abortions — and that’s what my worry is about Fred Nile’s bill. … It’s very similar to the submission I put into the [NSW Parliament Review of Criminal Law on Death of Unborn Children] in 2010, but he’s changed a few words to cover an entire pregnancy and also negligence. I think he has definitely decided to manipulate what happened to us for his own agenda.
Donegan is further quoted as saying she wished to avoid such a situation arising from Zoe’s Law.
We just want a fair and practical law and if it can’t be done without encroaching on abortion law at the moment, then we’re just not interested in supporting that.
I also believe it wouldn’t be worth collaborating with [Fred Nile] as I don’t trust him … I believe he does want loopholes to be able to slowly work towards an abortion bill and I refuse to have any part of that, and I find it offensive he’s named his bill after our daughter without asking our permission — not that we would have given it.
It is difficult to want to deny any extra reparation to women so harmed. But it is easy to see the myriad of ways in which this propsed law could be used to harm women. And for me, reading Nile’s speech about the bill, the notion that it’s about reparation at all does not ring true. It’s soured by the fact that, in this law, recognition of harm is given on the condition that a women agrees to give up a right over her body – the right to reparation is given to the child as a person over and above the mother, and her body, like her grief, is appropriated for purposes other than her own.
What action can we take?
Contact your local member and let them know that you’re concerned about this Bill getting though.
Past F Collective action on Abortion:
Rachel Watts “Foetal homicide laws set up a competing set of rights for women”, 15 March 2012, The Drum http://www.abc.net.au/unleashed/3889266.html
Kirsty Needham “Nile bill to ignite debate over abortion”, June 30, 2013, Sydney Morning Herald, http://www.smh.com.au/nsw/nile-bill-to-ignite-debate-over-abortion-20130629-2p3y1.html
Melanie Fernandez, Women’s Electoral Lobby Media Release, http://welnsw.org.au/2013/07/01/zoes-law-a-trojan-horse-for-niles-anti-choice-agenda/
Ammy Singh “Proposed Foetal Rights Bill May Turn Abortion into Murder” Tharunka Frontpage / News / No. 3, Vol. 59 (2013) http://tharunka.arc.unsw.edu.au/proposed-foetal-rights-bill-may-turn-abortion-into-murder/
Women’s Legal Service NSE Submission to NSW Department of Justice and Attorney General on the Review of Laws Surrounding Criminal Incidents involving the Death of an Unborn Child (23 July 2010)” at http://www.womenslegalnsw.asn.au/law-and-policy-reform/recent-work.html
Michael Campbell “Review of Laws Surrounding Criminal Incidents Involving the Death of an Unborn Child” can be found at http://www.lpclrd.lawlink.nsw.gov.au/lpclrd/lpclrd_consultation/lpclrd_discussion.html