Graycar, Regina; Morgan, Jenny --- "A quarter century of feminism in law: Back to the future" [1999] AltLawJl 20; (1999) 24(3) Alternative Law Journal 117

Men as a group are not comparably disempowered by their reproductive capacities — no one forces them to impregnate women or to bear children — and they are not generally required by society to spend their lives caring for children to the comparative preclusion of other life pursuits.[29]

and that:

Laws cannot alter the reproductive capacities of men and women, but they can and do prescribe the social and legal consequences which attach to them.[30]

These sorts of assertions or claims seem to rest on fairly broad brush claims about ‘women’ and ‘men’. It is difficult in a litigation context to reflect a more nuanced understanding of the recent challenges to ‘white’ feminism by Aboriginal women and women of non-English speaking background. So would it be possible to include the experiences of a wide variety of women in a litigation context? Could you point out that women do not unequivocally control their access to contraception? (It is costly, particularly for poor women.) Could you emphasise that Aboriginal women have been subjected to forcible use of contraceptives such as depo provera?[31] How about women with disabilities who have been sterilised, often for eugenic purposes?[32] It is unclear to us whether there would have been an opportunity, even if WEL had been granted intervener status,[33] to make any of these arguments. The equality arguments in Canada have been developed in a context where the Canadian constitution contains a guarantee of sex equality and LEAF has been challenged to become more coalitionist in its politics and include issues of race, disability etc in its argumentation on behalf of ‘women’. In Australia, given the difficulty of getting the court to see a connection between reproduction and women’s equality, Australian feminists may be even more wary of muddying the waters by representing a more nuanced approach to women’s diverse equality claims.

It is unclear to us whether the next 25 years are likely to see more feminist engagement in litigation, especially as interveners. Will we have a constitutionally entrenched bill of rights? Will the granting of intervener status to the Catholic Church in CES lead to a broader range of voices being heard in that court? Specifically, will this (or any future) government fund a National Women’s Justice Program of the type recommended by the Australian Law Reform Commission in its 1994 report ‘Equality before the Law: Justice for Women’? Or are Australian feminists more likely to stay in the legislative arena where so much of the activist energy has to date been focused? That the legislative arena can, on occasion, provide a sympathetic environment for feminist arguments in the abortion area is illustrated by events in Western Australia in the past year.

Early in 1998 the West Australian DPP charged two doctors with performing an unlawful termination.[34] The termination had come to the attention of the authorities as the Maori woman concerned had asked to take the foetus home so she could bury it in accordance with her religious and cultural beliefs. She had kept it in her fridge and her child described this at ‘show and tell’ at his school.[35] The Western Australian Criminal Code, while it had some similarities to the Victorian and New South Wales legislation, was not the same and there was some doubt whether the Levine and Menhennit rulings applied in that jurisdiction. When the charges were laid, doctors in that State threatened to cease performing abortions, and newspapers reported that some women were attempting to abort themselves, with tragic results. The opportunity of the prosecution was seized upon by long time campaigner, the Hon Cheryl Davenport to introduce legislation which would have removed abortion from the Criminal Code altogether. After a lengthy debate, the original criminal offences were abolished but they were replaced with a new provision in the Health Act that provides, in effect, that an abortion is lawful if the woman concerned has given ‘informed consent’. While the informed consent provision requires two doctors to be involved (a doctor other than the one to perform the abortion must ensure her ‘informed consent’), there is no restriction on where abortions can be performed. Most importantly, the decision is expressed to be one for the woman rather than for a medical practitioner.[36]

As with involvement in the CES litigation, feminist activism on abortion in WA was also reactive: while Davenport had sought reform of the law for some time, it was the crisis generated by the apparent ‘banning’ of abortion that ultimately concluded with a new, more permissive, legal regime. There is real doubt whether this progressive legislation would be achieved in other jurisdictions in the future; that is, there is no reason to assume that because, in 1998, the Western Australian parliament passed progressive legislation, feminist activists should turn their attention to their own parliaments. Feminist activists in Western Australia had no choice and, as indicated by the CES litigation, feminist interventions in law both at the parliamentary level and in the courts, are often going to be at the dictates of others.[37] However, the legislative arena in Western Australia did provide at least some opportunity for abortion to be recognised as an equality issue for women[38] and while we occasionally envy our feminist colleagues in Canada able to intervene frequently in constitutional litigation, it may be that the legislative arena will continue to offer a more fertile ground for feminist legal interventions in Australia, despite the prevalence of conservative governments.

Back to the future?

What does the return of abortion to the front pages and the return of feminist activists to the front lines tell us about what to expect in the future? As we mentioned earlier, the range of issues in law that feminists have identified as operating in a gendered manner has expanded well beyond the first wave of concern about rape law, domestic violence, and women’s control over their fertility. But at the same time, hard-earned reforms are constantly under challenge. We have referred to the work of feminist legal activists in Canada where the equality guarantee under the Charter of Rights and Freedoms has provided a framework within which feminist arguments are made (and sometimes heard) in the Supreme Court of Canada. Yet in the first few months of this year, the Attorney-General of one province has recalled brochures for women survivors of domestic violence on the grounds that no comparable literature is available for male ‘victims’ and we have already discussed the attacks on feminism in the Supreme Court of Canada.

In Australia, as in Canada, the struggle in the context of sexual assault has moved to the issue of counsellors’ records. Women’s right to control their fertility, including their right to safe, affordable abortion, once considered relatively settled, has re-emerged as an issue that can be used by those who oppose women’s equality to try to limit their autonomy.

While no-one can predict with any certainty what the next quarter century will bring women involved in the law and legal issues, it is sobering to reflect how much has changed but how much has remained the same in the past 25 years. Twenty-five years ago, a course in feminist legal theory or law and gender at an Australian university law school would have been unthinkable; now such courses are relatively common. Yet many areas of legal doctrine are still taught, practised and pronounced upon by courts as if women remain ‘fringe dwellers of the jurisprudential community’,[39] or as if law schools and the courts were still the sole domain of white anglo heterosexual men (though ones who occasionally are sufficiently generous to ‘allow in’ a few token women).

What will an article like this one say in 25 years from now? Will 50% of superior court judges in 2024 be women? (Well, there is no law against fantasising.) The history of the past quarter century suggests that the same issues will continue to resurface; that 25 years from now we will still campaign around rape and sexual assault, and reproductive freedom. As well, our 25-year-old colleagues will identify their own priorities and agendas and hopefully these will take a more prominent place on the legal stage.

References

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[1] See now Question of Law Reserved on Acquittal Pursuant to Section 351(1A) Criminal Law Consolidation Act (No 1 of 1993) [1993] SASC 3896; (1993) 59 SASR 214.
[2] See Australian Law Reform Commission (ALRC), Equality Before the Law: Justice for Women, Report No 69, Part I, Sydney, 1994 and ALRC, Equality Before the Law: Women’s Equality, Report No 69, Part II, Sydney, 1994.
[3] Fehlberg, B., Sexually Transmitted Debt: Surety Wives and English Law, Clarendon, Oxford, 1997.
[4] Graycar, R., ‘Hoovering as a Hobby and Other Stories: Gendered Assessments of Personal Injury Damages’, (1997) 31 University of British Columbia Law Journal 17.
[5] See, for example, Stewart, M., ‘Reforming Tax for Social Justice’, (1998) 23 Alt LJ 157.
[6] See, for example, A. Edwards and S. Magarey (eds), Women in a Restructuring Australia, Allen and Unwin, Sydney, 1995 and Spender, P., ‘Exploring the Corporations Law Using a Gender Analysis’, (1996) 3 Canberra Law Review 82.
[7] See Family Law Reform Act 1995 (Cth). In relation to family law, see also the 1999 Discussion Paper, Property and Family Law: Options for Change, Attorney-General’s Department, 1999 which seems to suggest that women’s increased workforce participation means that ‘marriage is becoming increasingly recognised as an economic partnership’ (para 5) without noting the part-time and casualised nature of that participation. See article in this issue of Alt LJ by Renata Alexander.
[8] Thornton, M., Dissonance and Distrust, Oxford University Press, Melbourne, 1996.
[9] Law Society of NSW, Profile of the Solicitors of NSW 1998, Research Report 2, 1998 Table 7.
[10] Victorian Bar Council, 1998. See Hunter, R. and McKelvie, H., ‘Gender and Legal Practice’, (1999) 24(2) Alt.LJ 57.
[11] Harvey, C., ‘All Rise, Women in the Law Set a New Benchmark’, Australian, 16 April 1999, p.3.
[12] See Bird v Free and Others (1994) 126 ALR 475 and see generally Graycar, ‘The Gender of Judgments: Some Reflections on Bias’, (1998) 32 UBCLR 1.
[13] R v Ewanchuk (1999) 169 DLR (4th) 193, www.droit.umontreal.ca/doc/ csc-scc/en/rec/html/ewanchuk.en.html
[14] See National Post, 27 February 1999 and subsequent issues: www. nationalpost.com
[15] ‘Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault’, Department for Women, Sydney, 1996; Heenan, M. and McKelvie, H., ‘Evaluation of the Crimes (Rape) Act 1991’, Attorney-General’s Legislation and Policy Branch, Department of Justice, Melbourne, 1997.
[16] See MCCOC, Discussion Paper, Model Criminal Code: Chapter 5 — ‘Sexual Offences Against the Person’, November 1996.
[17] See Evidence Amendment (Confidential Communications) Act 1997 (NSW) and Evidence (Confidential Communications) Act 1998 (Vic) and Cossins, A., ‘Tipping the scales in her favour: The need to protect counselling records in sexual assault trials’ in P. Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture, Federation Press, Leichhardt, 1998.
[18] Smart, C., ‘Feminism and Law: Some Problems of Analysis and Strategy’, (1986) 14 International Journal of the Sociology of Law 109.
[19] See R v Davidson [1969] VicRp 85; [1969] VR 667 (the ‘Menhennit ruling’) and R v Wald (1971) 3 DCR (NSW) 25 (the ‘Levine ruling’).
[20] CES v Superclinics (1995) 38 NSWLR 47.
[21] Graycar, R. and Morgan, J., ‘“Unnatural Rejection of Womanhood and Motherhood”: Pregnancy, Damages and the Law — A Note on CES v Superclinics’[1996] SydLawRw 16; , (1996) 18 Sydney Law Review 323.
[22] See Superclinics Australia Pty Ltd v CES and ors, In the High Court of Australia, No S88 of 1996, Transcript of Proceedings, 11 September 1996.
[23] Kirby J did not sit: he had been a member of the Court of Appeal when it considered the matter. When the application for leave to intervene was made, Brennan CJ said: ‘... I have asked the Senior Registrar to inform counsel that I know Father McKenna, a deponent to one of the affidavits in support of the application to intervene, or to appear amicus curiae, and a number of members of the Australian Catholic Bishops’ Conference’, Transcript of Proceedings, 11 September 1996, at p.4.
[24] This contrasts quite sharply with the situation in Canada where the Women’s Legal Education and Action Fund (LEAF) has intervened in a series of cases, including before the Supreme Court of Canada, on behalf of women. Some of this work is described in Razack, S., Canadian Feminism and the Law, Second Story Press, Toronto, 1991 and see LEAF, Equality and the Charter: 1985–1995, Emond Montgomery, Toronto, 1996.
[25] See Superclinics Australia Pty Ltd v CES and ors, In the High Court of Australia, No S88 of 1996, Transcript of Proceedings, 12 September 1996.
[26] See Wainer, J., ‘Abortion before the High Court’, (1997) 8 Australian Feminist Law Journal 133.
[27] See ref 26 above.
[28] Cf for Australia, Ansett v Wardley (1984) EOC 92-002, and Sex Discrimination Act 1984 (Cth).
[29] See Factum of the Women’s Legal Education and Action Fund (LEAF), in Daigle v Tremblay, at para 35 (reproduced in Equality and the Charter, ref 24, above).
[30] See Factum of the Intervenor, The Elizabeth Bagshaw Society, Everywoman’s Health Centre Society (1988), The BC Coalition for Abortion Clinics, The BC Women’s CARE program and the Women’s Legal Education and Action Fund in R v Lewis, Supreme Court of British Columbia, 1996, para 28.
[31] Bunkle, Phillida, ‘Calling the Shots: The International Politics of Depo Provera’, in Second Opinion: The Politics of Women’s Health in New Zealand , Oxford University Press, Auckland, 1988, at n.13.
[32] See the discussion by Brennan J (as he then was) in Marion’s Case [1992] HCA 15; (1992) 175 CLR 218 at 275.
[33] There was a suggestion at the time that the Abortion Providers’ Federation would be raising the same issues as WEL and therefore WEL’s application might have been refused.
[34] These charges were eventually dropped.
[35] See Cica, N., ‘Ordering the Law on Abortion in Australia’s “Wild West’’’, (1998) 23 Alt LJ 89.
[36] See Acts Amendment (Abortion) Act 1998 (WA). Compare this with the recent ACT amendments. In 1998, the ACT parliament enacted the Health Regulation (Maternal Health Information) Act 1998. The Act provides that where an abortion is proposed, a medical practitioner should provide a woman with information about the medical risks of termination of pregnancy and carrying a pregnancy to term, any risks specific to her, any particular medical risks associated with the type of abortion procedure proposed and ‘the probable gestational age of the foetus at the time the abortion will be performed’ and offer referral to appropriate counselling (s.8). However, non-compliance with these provisions does not affect the lawfulness of the abortion performed for the purposes of the Crimes Act 1900.
[37] See Sheehy, E.A., ‘Feminist Argumentation Before the Supreme Court of Canada in R v Seaboyer; R v Gayme: The Sound of One Hand Clapping’[1991] MelbULawRw 27; , (1991) 18 Melbourne University Law Review 450.
[38] See Teasdale, L., ‘Confronting the Fear of Being ‘Caught’: Discourses on Abortion in Western Australia’[1999] UNSWLawJl 41; , (1999) 22(1) University of New South Wales Law Journal 60.
[39] See Thornton, ref 8, above.