On Zoe’s Law, And The Accidental/On Purpose Erosion Of Your Reproductive Rights

[UPDATE: November 21, 2013]

A whole lot of men (and a couple of women) in the NSW Government lower house voted in favour of Zoe’s Law this afternoon — a bill that declares a foetus of 20 weeks or 400g to be a living person with rights. It was introduced by former One Nation youth president and two-time candidate Chris Spence, and passed 63 votes to 26 today with the assistance of NSW Premier Barry O’Farrell.

But that’s not the end of the road for this law — it still needs to pass the Upper House, where it will be sponsored by anti-choice Christian Democrats leader Fred Nile.

In other words, we still have time to fight it.

There’s a lot of confusion about the implications of Zoe’s Law. Many who have worked to push it through parliament have done so on a “pro-choice” platform. But in a state where abortion is written into the Crimes Act, granting rights to an unborn foetus is anything but pro-choice.

Here’s a not-so-brief history of the law, and why you should put on your pink sneakers and run it out of town.

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Where Did This All Begin?

Let’s all agree on one thing: Brodie Donegan’s story is heartbreaking.

It was Christmas Day in 2009 when Brodie’s life was turned upside down. Eight months pregnant, she’d been walking along the footpath when a minivan steered by a drug-affected driver veered off the road and smashed into her. Badly injured, she was also pinned between trees and partly under the vehicle, and it took three hours to free her from the scene. Brodie was airlifted to the hospital, and when she arrived, her unborn daughter Zoe still had a heartbeat — but two hours later that pulse couldn’t be found. Brodie had an emergency caesarean, and her daughter was stillborn.

“She was perfect except for a mark on her lip from the resuscitation attempts,” Brodie told SBS earlier this month, explaining that her heartbreak was far more difficult to recover from than any of her physical injuries. “She was warm and looked and smelt like any other newborn.”

On Christmas Day.

In the months that followed, the driver was charged with dangerous driving causing grievous bodily harm against Brodie, and sentenced to two years and three months jail — but she was released after a non parole period of nine months. Court documents listed the loss of Zoe amongst Brodie’s injuries, which included multiple broken bones and soft tissue damage, which Brodie understandably felt did not do justice to the reality of her loss.

Brodie’s grief and subsequent public campaigning set the wheels in motion for two bills to change the law in NSW, so that an unborn child would be recognised as a separate life from its mother. This would mean that, in future, anyone who takes that life will be liable for the separate crime of killing an unborn child, and not just causing harm to the mother.

Zoe’s Law I vs Zoe’s Law II: What’s The Difference?

The first bill was introduced earlier this year by the leader of the Christian Democrats and anti-abortion zealot Fred Nile. His bill decreed a child to be its own separate life from the moment of conception, and made manslaughter an applicable offence to taking that life. Nile didn’t consult Brodie Donegan before naming the bill after her stillborn child, and she came out strongly against it, given her own pro-choice beliefs made her “wary of the direction this law was heading”.

The bill was (predictably) defeated, but Donegan then drafted her own version of the law, which looks a little bit more likely was passed in the NSW lower house on November 21. Problem is, the new law introduces a very similar fundamental change to personhood, only with a few extra hurdles thrown in to hinder pro-lifers from sprinting towards prosecuting abortions:

Zoe’s Law II’s Protective Measures

1. Medical procedures are exempt.

2. The mother is exempt even if she causes the child’s death out of negligence, reckless behaviour, or by deliberately harming herself.

3. Rather than a child’s life being counted as separate from the moment of conception, this bill draws the line at 20 weeks, or 400g, in line with the Births, Deaths and Marriages Act’s definition of stillbirth as opposed to miscarriage.

4. Manslaughter is not applicable. A person charged with causing the death of an unborn child would still be charged with Grievous Bodily Harm, only against the child instead of just the mother.

If All These Measures Are In Place, Why Is Zoe’s Law A Problem?

Incidentally, Nile also claimed that his law had nothing to do with abortion, and had included wording to suggest it would not apply to medical procedures or actions taken by mothers. But people including Brodie Donegan saw straight through it; they were aware of Nile’s anti-abortion agenda, and could see it was the thin edge of the wedge. This new law is a problem because it’s just a thinner edge of the same wedge.

Whereas Nile’s anti-abortion agenda is easily recognised and dismissed by reasonable people, the ‘pro-choice’ sheep’s clothing of this law and its championing by Donegan makes it far easier for politicians of all stripes to support.

1. Unintended consequences

Laws don’t occur in a vacuum. New laws unlock debates and open doors for new interpretations, and newer laws. This is especially true when it comes to legal definitions and exemptions that may be shaky, arbitrary, or in disagreement with other sections of the law. Lawyers like their laws to agree with each other — and they also like to pick apart any loopholes or logical question marks that might help them win a case.

Plenty of the specifications in Zoe’s Law that supposedly prevent mothers or their doctors from being prosecuted could be contested.  If an unborn child is classed as a person, for instance, why shouldn’t killing that person constitute murder?

Despite the protestations of Ms Donegan and other supporters of Zoe’s Law, that it does not apply to terminations or anything the mother might do to result in the death of her child, plenty of the specifications that supposedly prevent mothers or their doctors from being prosecuted could be contested. For example, the logic of classing the offence against the child as ‘grievous bodily harm’ rather than manslaughter or murder is debatable. If an unborn child is classed as a person, why shouldn’t killing that person constitute murder? As NSW Shadow Attorney-General Paul Lynch suggested in his speech against the bill, the logical charge of murder/manslaughter would have been “too difficult politically” — so the drafters went with the politically expedient, contestable decision rather than the logical one.

The most fundamental change brought about by this law is the definition of personhood. Instead of personhood (for the purposes of the Crimes Act) coming about from a child’s first breath, this law brings the definition of a foetus as a person — separate from its mother — in line with the definition of stillbirth in the Births Deaths and Marriages Act. That’s a foetus of 20 weeks or, if age cannot be determined, of 400 grams. This is supposed to clear up an “arbitrary” line of personhood (being born), but in doing so it draws its own — far more arbitrary — line, between a foetus of 20 weeks or 400 grams and one that is younger, or smaller. Brodie Donegan was upset that Zoe didn’t receive recognition as an unborn child when she was lost in the accident. What’s to say a mother in a similar position but with a foetus a day or two shy of 20 weeks would not feel the same sense of injustice?

Yes, Brodie Donegan has drafted this law carefully to reflect her own pro-choice beliefs — but to suggest its protection of women’s reproductive rights is iron-clad is to ignore how lawmaking works (not to mention the lack of protection for women’s reproductive rights already in NSW, but we’ll get to that). It ignores the fact that Zoe’s Law itself uses the Births, Deaths and Marriages Act’s existing definition of personhood to make a fundamental change the Crimes Act.

Full respect to Ms Donegan, but just like the drafters of the BDM Act probably didn’t think it would be used to re-define personhood for the purposes of crime and punishment, she and her pro-choice feelings unfortunately won’t get to decide how Zoe’s Law is interpreted and used by others in the future.

2. It’s not necessary

A 2010 review into the laws surrounding the death of an unborn child found that the current laws are entirely adequate from a legal perspective. The Crimes Act already specifically recognises the destruction of a foetus as a serious offence. A person who causes a pregnant woman to lose her child, whether or not the woman herself is physically harmed, can be charged with causing grievous bodily harm, and face up to 14 years jail. If we think the driver who killed Zoe should have received a tougher sentence, that’s a matter to take up with the judge who handed it down — it shouldn’t be an opportunity for anti-choice campaigners to bring in a new law.

This law won’t bring Zoe back. It won’t stop unborn babies dying in car accidents or violent altercations. It won’t even necessarily increase the sentence of the person responsible — Brodie herself admits that’s not what it’s about. “I am not arguing the adequacy of the penalties surrounding the current law”, she told SBS. “Indeed we would be replicating these penalties.”

So What IS It About?

It seems that, more than anything else, this law is about making a symbolic shift in the paradigm of personhood. We’re told that it’s about giving parents who lose their children as the result of a crime a sense of justice, that their loss means something more tangible than grievous bodily harm against the mother.

We have to be careful with laws which are put in place to serve a symbolic rather than a logical, material purpose.

It’s understandable that parents might want this. But we have to be careful with laws which are put in place to serve a symbolic rather than a logical, material purpose — especially when they seek to fundamentally alter something as important, as controversial, and as potentially dangerous, as the line between a foetus and an individual person. People have rights, and the rights of one often clash with the rights of another. It’s only when cases are tested in the courts that we see how these conflicting rights play out, and it’s not far fetched to imagine that with such a paradigm shift, the rights of an unborn child might clash with the rights of its mother — with devastating results for women.

This is why people who are experts on the law and its use to control women’s bodies — like the NSW Bar Association, the Australian Medical Association and the Women’s Legal Service — don’t want this bill passed. Because they know that even in its more palatable version, Zoe’s Law will open the already-rusty gate guarding women and their doctors from prosecution, and it will only be a matter of time before a bunch of rabid anti-abortion campaigners try to march through the gap.

MPs arguing in favour of this bill have repeatedly stated that it protects women’s right to choose, but for one glaringly obvious reason, they’re completely wrong.

Women In NSW DON’T Have The Right To Choose

While Zoe’s Law is likely open up the debate over a mother’s existing right to medical terminations, and leave both pregnant women and their doctors open to future litigation, it will also undoubtedly shut down the other debate about reproductive rights: a woman’s right to choose whether or not to carry out her pregnancy.

Contrary to popular belief, women don’t have that right in NSW. Our abortion law is murky and leaves much up to the interpretation and discretion of the court. ‘Unlawful’ abortion is prohibited, but we don’t have any definition of what is ‘lawful’. The most recent case in NSW of an abortion prosecution happened in 2006. A doctor who administered an abortion drug to a woman 23 weeks pregnant was charged with manslaughter and found guilty of the lesser charge of an unlawful termination. The abortion was classed as unlawful because the jury found the doctor failed to adequately counsel her patient.

It’s generally agreed that a woman whose doctor says carrying a child to full term will cause her undue physical or psychological damage can terminate her pregnancy without fear of prosecution. But that’s about medical treatment, not control over our own bodies. Not choice.

What Happens Now?

We all want justice for Brodie — what happened to her was unimaginably terrible. But while changing the wording of the Crimes Act might make her feel better about her loss, chances are it won’t really change much else in that regard. Zoe’s Law won’t bring Zoe back, or make it harder for negligent drivers to crash into pregnant women. It will make it harder for women to access safe abortions. It will make doctors more hesitant to perform them. It will increase the stigma and stress associated with something that is already frowned upon and taboo. It may even lead to prosecutions and future law changes to strengthen the pro-life case against women’s reproductive rights.

Zoe’s Law won’t bring Zoe back, or make it harder for negligent drivers to crash into pregnant women. It will make it harder for women to access safe abortions.

Earlier this year we watched as Wendy Davis heroically filibustered an anti-abortion law being introduced in Texas. This proposed law was to ban abortions after 20 weeks, and reduced the number of abortion facilities via instituting stringent licensing restrictions.

It’s easy to be swept along with outrage over Republican interference in women’s reproductive rights in the US — but we forget that our own reproductive rights have far less protection than in America, where (non-late-term) abortion is enshrined federally as a woman’s legal right. We all cheered Wendy Davis, but where were we when a law that could have even worse consequences for women in our own backyard went to the vote in a room dominated by men?

Where will we be when Fred Nile pushes it into the Upper House?

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Sydney Feminists have organised a snap rally to protest the passing of Zoe’s Law, on the steps of NSW Parliament at 5:30pm today.

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Jenny Noyes writes from Sydney’s inner west. She enjoys making opinions about arts and isms, which you can read on her Tumblr or Twitter: @jennynoise.

Feature image by Bob Daemmrich/Corbis/NYMag.