Our abortion law of 1861 v Our Constitution of 1981
On the face of it, the status of women in society has changed so much in the 120 years between our inherited abortion law (1861) and the range of rights expressed in our modern constitution (1981), that there should be no need for the formality of a constitutional challenge.
The gap is so extraordinary that the answer should be obvious. That law is rooted in a time and a science that no longer exists. Its irrelevance should be self-evident
What was the social context of the 1861 abortion law in England?
Women could not vote. They could not run for political office. Married women could not own property. Worse, through coverture, upon marriage, a woman and her property fell under her husband’s authority and protection.
A married woman could not have a bank account without her husband’s permission. Until 1857, it was almost impossible for a woman to obtain a divorce.
In 1861 women could attend university but could not earn a degree. Instead, they would receive Certificates of Proficiency. They were blocked from studying Medicine, Engineering, Law and Theology.
It was a world of extraordinary constraints for adult women. That was the social culture and legal context of the abortion law that was imposed on us during our colonial experience and which we ‘received’ at independence.
The abortion law is rooted in an era so out of tune with the status of women in modern society and so is patently alien to the values of equality and dignity entrenched in our constitution that a declaration of its unconstitutionality must be both easy and absolutely essential, a sine qua non.
Sincerely,
ASPIRE
