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Court looked into ancient practise, as abortion in the ancient times was practised by
the Greeks and ‘resorted to without scruple’ – as in there was nothing wrong with
abortion
⚪ However, back then it was based on the concept of a violation of the father’s
right to his offspring
⚪ In short, ancient religion did not bar abortion
⚪ They raised the Hippocratic Oath, in which abortion was not to be helped as it
is similar to killing a life
⚪ Question: why did the oath not stop abortion during Roman civilization?
■ The oath was not uncontested. Only the Pythagorean school of
philosophers opposed suicide & abortion
■ However, most Greek thinkers, on the other hand, commended
abortion at least when it is viable
The court also referred to the common law
⚪ In CL, abortion was allowed before the foetus was detected to move in the
womb (quickening), hence it is not an offence
⚪ Quickening is based on the earlier philosophical, theological, civil & canon
law concepts on when life begins
⚪ Under Christian theology, 40 days after conception; the foetus then has a soul
⚪ There was agreement however prior to that point, the foetus was part of the
mother’s body hence it was not homicide
⚪ CL did not regard foetus as human being, even when it has quickened – and
penalty was merely manslaughter
Court also referred to English statutory law
⚪ Laid down that abortion of foetus who has gone through quickening is a
capital crime
⚪ Infant Life (Preservation) Act
■ Committing abortion is a felony BUT if it is done in good faith & to
protect life of mother then it is not an offence
■ Hence, abortion here is allowed and not totally prohibited
■ This was exemplified in Rex v Bourne
⚪ Abortion Act 1967
■ The Act permits licensed physician to perform a abortion where 2
other licensed physicians agree that the pregnancy would risk the life
of the woman or any living children in the family, OR the child if born
will suffer from abnormalities
■ So this too allows abortion
Then they looked into American law
⚪ Abortion before quickening was made a crime only in 1860
⚪ In 1828, abortion is allowed
They then looked into how the US legislation dealt with abortion
⚪ Firstly dealt with strictly, before becoming more lenient
The judges looked into how American doctors viewed abortion
⚪ An 1859 report, deplored abortion because there was a misconception that the
foetus is not alive until after period of quickening
⚪ Besides that, the report also pointed out that there were also doctors who did
not protect foetus; careless
⚪ An 1871 report, abortion was opposed because it involves human life which is
sacred & serious & how it is unlawful to abort without concurrent opinion of
one respectable physician
⚪ In 1970, American Public Health Assoc changed their stance and launched
new standards for abortion
■ Rapid & simple abortion referral must be readily avail through state &
local public facilities
■ Counselling should be to simplify & expedite the provision of abortion
services
■ Psychiatric consultation should not be mandatory as it is only for
serious situations
■ Individuals are from appropriately trained, sympathetic volunteers to
be the counsellors
■ Contraception & sterilization should be discussed with the abortion
patients
⚪ More requirements were added in 1971 which include, properly trained
individuals, properly set up facilities & the need to record details
Court in this case thus suggested that abortions in 2nd trimester can be done in hospital
as inpatient procedures; whereas those in 1st trimester who want abortion with or
without overnight stay is the “safest way to go”
The reason why the state controlled abortion was because it was hazardous for women
(a paternalistic approach)
⚪ The court responded to this with saying that abortion back then was unsafe but
modern medical techniques have changed this
Court felt that state has a legitimate interest in ensuring abortion is carried out safely
The court also looked at the fact that high mortality rate at illegal abortion centres
further prove the point that the state must control abortion processes
This case therefore gave right to the state to control abortion (in terms of registration
of clinics, doctors etc)
RIGHT TO PRIVACY
The court also looked into issue of right to privacy
In M’sia, the tort of invasion of privacy is not recognized
But in Roe v Wade,