Around the world, two words — Roe v Wade — have become synonymous with the right to reproductive freedom.
The Roe in question is Jane McCorvey, a Texas woman who took her fight to be able to terminate a pregnancy to the courts in 1970. In a landmark ruling on the case in 1973, a 7-2 majority of Supreme Court judges found that while the US constitution did not explicitly mention abortion, it did imply the right to privacy which extended to reproductive decisions.
For almost 50 years, that reasoning granted Americans the constitutional right to an abortion in the first three months of pregnancy and prevented states from prohibiting them in the second trimester. That is until the same court voted to overturn the ruling late on Saturday, allowing individual states to make their own abortion laws.
From the other side of the world, Prime Minister Anthony Albanese described the move as a “setback for women and their right to control their own bodies” and reiterated that in Australia abortion access “is not a matter for partisan political debate”.
But it wasn’t always that way. In the years preceding Roe v Wade, another lesser-known case on abortion access was heard before the Victorian Supreme Court — and it paved the way for reproductive rights in Australia.
Introducing the Menhennitt ruling
In 1950 and ’60s Australia, a burgeoning campaign for greater reproductive freedom was already underway — but unlike the feminist movements that came later, medical professionals were often on the frontline.
“This was basically on the grounds that unsafe abortion could be very dangerous,” says Dr Erica Millar, an expert on abortion provision in Australia at La Trobe University. “And they were sick of dealing with patients with complications of abortion and also thinking about the real toll it takes on a person.”
By the late ’60s, abortions were already common place, undertaken by doctors and non-medical professionals, despite it being a criminal offence in all states and territories. Among those offering abortions was Melbourne gynaecologist Ken Davidson.
“He was kind of flouting the law deliberately in order to get arrested because he wanted to challenge the offence,” Millar says. In Victoria at the time, she says, very few people were actually charged with breaking the law on abortion. “It was one of those crimes that are on the books, but not really enforced.”
This changed in 1967, according to an account by journalist Gideon Haigh in his book The Racket: How Abortion Became Legal in Australia, when homicide squad detectives raided Davidson’s East Melbourne surgery after receiving a tip-off that he was set to perform an abortion that morning.
Two years later, Davidson found himself before the Victorian Supreme Court charged with four counts of unlawfully using an instrument to procure a miscarriage and one count of conspiring to unlawfully procure a miscarriage. The case was heard in the same year South Australia moved to legislate the right for doctors to perform early-term abortions if a pregnancy was likely to cause harm to a person’s physical or mental health.
In what would become a nationwide precedent, Victorian Supreme Court Justice Clifford Menhennitt ruled that abortion was not illegal if a doctor honestly believed that a person’s physical or mental health would be “seriously” endangered if the pregnancy was to continue.
The judgement relied on the “necessity principle”, often called the “lesser evils” approach — basically the idea that you can break the literal law if the harm of doing so will be less than the alternative.
“What Menhennitt said was if you can show that abortion was the lesser evil in the circumstances, then it becomes a lawful abortion,” says Mark Rankin, a senior lecturer at Flinders’ University law school and expert on Australian abortion law.
According to a parliament research paper on abortion law in Australia, this interpretation of unlawful was less restrictive than the test established in an earlier English case, “considerably reducing the level of danger to health required before an abortion could be performed lawfully”.
The ruling did not, however, establish that a doctor could perform an abortion for any reason other than health grounds and “it certainly did not permit abortion on the basis that the pregnant woman simply did not wish to continue with the pregnancy”.
But even so, Millar says it marked a “huge shift” and in practice meant doctors were free to perform abortions on the basis that being forced to continue with a pregnancy against a person’s will was almost always seen to be more harmful than a termination.
“The Menhennitt ruling allowed doctors the flexibility to perform an abortion essentially on a pregnant person’s choice,” she says. “But, the problem was it said it was a doctor’s decision, so it relied heavily on finding the right doctor.”
This framework remained the status quo until 2008, when Victoria removed abortion from the Crimes Act.
“Because abortion was being so freely provided, in terms of abortion provision, very little happened with that law,” Millar says. “While it’s important for the law to recognise abortion as a pregnant person’s choice, in terms of provision … it was almost symbolic.”
A national precedent
Despite South Australia having already moved to improve abortion access, Rankin describes the Menhennitt ruling as “hugely significant” for Australia.
That’s largely because while the South Australian law only extended to that jurisdiction, the Victorian case ruling provided “persuasive authority” or a soft precedent for similar actions in other states and territories.
Where the South Australian legislation required two doctors to sign off on a decision to offer abortion, the Menhennitt ruling also only required one medical practitioner to make the call.
The judgement quickly “resonated across the country”, Victorian Supreme Court chief executive Louise Anderson told the ABC in 2016and forced the states and territories to respond “in a way that reflected women’s right to make those very difficult decisions about their lives and families”.
It didn’t take long for NSW to take the Menhennitt ruling and build upon it. In 1971, a District Court adopted the judgement but expanded the terms of what could constitute physical and mental health to include economic and social reasons why abortion may be necessary. That decision is now known as the Levine ruling.
Three years later, in 1974, the Northern Territory introduced legislation similar to that in South Australia. Then in 1986, another case law decision — the McGuire ruling — was handed down in Queensland, confirming the interpretation of the law as set out by Menhennitt.
“The Menhennitt ruling over time, with slight differences here and there, was a huge influence because it essentially reflected the law not only in Victoria but also in NSW and Queensland, which is the vast majority of the Australian population,” Rankin says.
Both Queensland and New South Wales decriminalised abortion in 2018 and 2019 respectively, meaning the Menhennitt ruling is no longer relied upon (Western Australia is now the only Australian state or territory where abortion remains in the criminal code). But during its lifetime, Rankin says, the ruling’s influence on Australia — both symbolic and practical — was comparable to Roe v Wade in the United States.
How it differed from Roe v Wade
There were, however, some major limitations to the Menhennitt ruling. The most significant of which went to the heart of how abortion was treated in Australia for decades.
Roe v Wade granted Americans the positive right to abortion under the constitution. Australia’s equivalent, on the other hand, simply provided a defence to a crime. It also left the final decision on the matter in the hands of a doctor, rather than the person seeking an abortion. “One is talking about rights and therefore creating limits to the exercise of legislative power by the US states, the other is really just developing a defence to the crime but not saying anything about the crime itself,” Rankin says.
Because Roe v Wade concerned the US constitution — unlike Australia’s abortion case law — it also had an immediate nationwide effect. “It was more top-down than bottom-up,” Millar says. “It wasn’t as organic as the legislative change in Australia, but it was also more encompassing because it was the pregnant person’s choice rather than doctors.”
With the overturning of Roe v Wade, the power to legislate access to abortion has now been handed back to the states, bringing it more in line with the Australian system, albeit in a very different partisan reality.
But Rankin believes there is also a major similarity between Roe v Wade and the Menhennitt ruling: both were established on “awkward and fragile” legal grounds. Where the Australian law relied on the necessity defence, which was open to subjective interpretation, America’s law was based on the similarly unstable right to privacy.
“It’s not a good basis for it because it’s very easy for a court to say later on that necessity doesn’t apply to abortion, because it’s not the lesser evil,” Rankin says. “It’s a subjective approach that means the court has to make some sort of moral judgement.”
Even now in Australia, Millar says the system is far from perfect. “We’ve had legal access to abortion in Australia for 50 years, but we don’t have optimal access — far from it,” Millar says.
“It’s postcode lottery how much you pay and whether you can access abortion. Legal abortion does not equal local and accessible abortion.”