The Fourth Court in Victoria’s Supreme Court complex would intimidate the sturdiest accused. It is poorly ventilated, dimly lit, high ceilinged and ornately decorated. The public gallery is supported by Doric columns; the judge presides from an elevated bench canopied in cedar; the witness stand is exposed on all sides. Nearest of all courts to the cells, it traditionally hosted the most lurid of cases. It was here that Ronald Ryan, awaiting the verdict in his murder trial on 30 March 1966, muttered to co-accused Peter John Walker: ‘I think we’re in deep shit.’
On 22 May 1969, the atmosphere was likewise tense, but less obviously dramatic. There were a scattering of watchers in the gallery; there were no journalists present; there was no cut and thrust of cross-examination. Instead, a single unamplified voice commenced to read into the court record a 3000-word ruling soporific with precedent: ‘In R v. MacKay [1957] VicRp 79; [1957] VR 560; [1957] ALR 648, Lowe, J, stated these two elements in his propositions numbered 3 and 6 set out at (VR) pp. 562–3; (ALR) p. 649. Smith, J, decided, at (VR) pp. 571–3; (ALR) pp. 654–6 …’ and so forth.
Justice Clifford Menhennitt, 56 years old, enrobed, bewigged, heavy-set, looked and sounded nothing like a great reformer. He was sober, fussy, pedantic, slow. He had been an equity lawyer, best known at the bar for his expertise in section 92 (‘Free Trade Between The States’), and most distinguished in his role as H.V. Evatt’s junior in the bank nationalisation case. He had been on the Bench three years, and had peaked; when he was mentioned as potential High Court material, Garfield Barwick is said to have retorted: ‘Heavens no, we don’t have time.’
His Honour was the unlikeliest jurist to be presiding in the case before him, involving an East Melbourne gynaecologist facing four counts of ‘unlawfully using an instrument or other means with intent to procure the miscarriage of a woman’ and one count of ‘conspiring unlawfully to procure the miscarriage of a woman’. His own marriage was childless; a former colleague would tell me: ‘What Cliff would have known about abortion was precisely nothing.’ The matter had come before him merely because he and his colleagues took turns in ‘crime’; a ruling was now necessary on the admissibility of medical evidence. He had gone away for a few days to think about it; now he was back. When Menhennitt sat down, abortion was a crime tantamount to murder and nigh unspeakable, in a state where an entrenched conservative premier was shored up by a rusted on Catholic vote. When he stood up, abortion was, under simple and certain strikingly flexible criteria, lawful, and his standard became the basis of evaluation for the next half century.
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I was introduced to the story by an ex-girlfriend whose work as an obstetrician we were discussing over lunch. When she deployed the word ‘Menhennitt’ several times in the context of how she and colleagues evaluated late-term abortion, I asked her to explain. The test asked, she said, whether the prolongation of the pregnancy would endanger a woman’s physical or mental wellbeing, and whether the danger of the termination outweighed the danger it was designed to prevent. A useful and elegant standard, she agreed, although she was unable to elaborate on its provenance, beyond repeating that curious name. Note to self: find out more. Not because I had either a passionate view or a personal experience of abortion; more because of the opposite, that it was something of which I knew next to nothing, and ignorance is not to be feared but remedied.
Remedy was elusive. There existed a huge library about the ethics of abortion, its symbolic resonances, its partisan politics. Yet there was comparatively little to be found in the nature of basic information – that is, the origins of the regime of its accessibility. It was disappointing, and enticing. Clearly a book needed to be written. Why should I not write it? Actually there were a few reasons. I had no cause. I had no background. I was arguably the wrong gender. But I have always aspired to a journalism that is, above all, of use. Something that competently retold the past of this complex medico-legal story might be efficacious in its future. Subconsciously, I suspect, I applied a version of Menhennitt’s standard – that a book’s potential helpfulness outweighed its potential harm. I began work on my book about abortion, The Racket (2008).
I’m bound to say that this perspective changed as I charted the history of illegal abortion in this country, the scale of the demand, the fragmented, ruinous and frankly sadistic state of supply, and, perhaps above all, the pragmatism and stoicism with which women withstood both. This was not a subject for polite society; not even for impolite society; it was an urgent need for confused and fearful individuals, the livelihood of ambiguously motivated providers. The scale must be understood, too, in terms of immense sexual ignorance, high levels of female fertility, poor education about birth control, taboo on unwed motherhood, and prolonged phases of economic hardship for sizeable proportions of society. For most of Australian history, abortion has not been a lifestyle choice; it has been an alternative to worsening poverty.
Yet it has not been, in Australia at least, a forefront feminist issue, in the same way as women’s suffrage, or property ownership, or equal pay, or educational availability. Abortion breaks cover quite regularly in female fiction in the first half of last century: in Jean Devanny’s Riven (1929), Fay is counselled to ‘put up with it and be quiet’; in Kylie Tennant’s Tiburon (1935), Mrs Mulvey refers breezily to ‘me operation’; in Eleanor Dark’s Waterway (1938), Aggie Trugg counts herself as mother of six ‘not counting odds and ends’; in Dymphna Cusack’s Jungfrau (1936), free-spirited Marc Roberts describes the procedure as ‘messy but no different to having your appendix out’; in Ruth Park’s The Harp in the South (1948), the heroine’s neighbour openly boasts of her ‘fifteen misses’; most memorable of all, perhaps, is Catherine Edmonds’ memoir Caddie (1953), where the procedure is the preserve of ‘a dirty old hag with filthy fingernails’ working in something ‘like a morgue’. But it is treated as a woman’s biological lot, something to deal with, to be endured, like a station of the cross. This is despite its pre-penicillin toll where women’s hospitals had whole wards allocated to the treatment of post-abortion sepsis.
Illegality and shame cloak the historic record of these times. In the course of my research, I perused inquest files for about 150 abortion-related deaths at Victoria’s Public Record Office, and ended up quoting from about fifty. The records are fragmentary, obfuscatory and far from comprehensive, but also suggestive. Abortion’s demonology accentuates the influence of the ‘backyard abortion’. The expression is more recent than it seems: the earliest reference Trove throws up is from the Canberra Times in 1968. What was meant varied. Providers always included the ranks of the greedy, the creepy, the cranky. But it was more often a lucrative business for entrepreneurial midwives, like the one who South Melbourne woman Jean Brett visited in the 1930s while her husband waited, impatiently and uncomprehendingly:
I’m telling you, it’s damned agony. You’d have no anaesthetic or nothing, all they would do is clean out your womb and you would be conscious. At any stage they would do it. They weren’t doctors they were midwives. They were supposed to be midwives. I can’t remember how much you’d pay … but I do remember my husband was waiting for me in the car when I came out. I was half damn dead, I might tell you. He said: ‘Christ I’m sick and tired of bloody waiting, I was nearly going to go home.’
How can they possibly … how can he … because I had no idea either, I don’t know what I expected. But you do think they’re going to do something … something gentle, don’t you? No they don’t. They just scrape it out as though it’s a … scraping up mud out of a gutter. That’s the truth. They had no feelings whatsoever. You paid whatever sum it was, it was far more than a man’s weekly wage would be. Some women couldn’t have any more kids after that. As I said they just scraped you out, like scraping out the inside of a marrow.
My impression, however, was that abortion was more profuse, and riskier, when it was self-procured. There existed a prodigious variety of folk remedies such as castor oil, baking soda, eating matches, drinking turpentine, pills from lead-plaster, liquor in which copper coins had been boiled, riding bicycles, reclining in hot mustard baths, jumping off high places, driving on bumpy roads or riding the big dipper at Luna Park. In April 1929, the Coroner took evidence in the death of 32-year-old Elizabeth Bren, who had used a trusty piece of elmbark kept in a jar on the mantelpiece – inserted in the cervix, elmbark tended to swell from the moisture until it precipitated contractions. Bren, a friend revealed, was a serial offender: ‘I said she was a foolish woman to do it. She said: “What else could I do with four hungry children around me? I could not possibly bring any more into the world.” She did happen to mention she had done it eighteen times previously in the last four years.’
A sizeable proportion of houses also featured a Higginson’s Syringe, a device devised in the 1850s to irrigate body cavities. It became a rite of reaching reproductive age to be instructed in inducing a miscarriage by administering a solution of Lifebuoy soap or Lysol disinfectant – hugely perilous in a non-sterile environment but also convenient for being minimally disruptive. Some of the inquest files I remember vividly. 33-year-old Doris Sanderson died after syringing a three-month pregnancy with Lifebuoy on 17 August 1946 while her husband was at the football and her sister listened to the radio in the kitchen. 33-year-old Janie Harrington suffered a fatal embolism on 16 January 1948 using Lysol, having told a friend over morning tea: ‘I think I will fix myself up before the boys come home.’ Admitted to Wangaratta Base Hospital in October 1956, 35-year-old Benalla waitress Muriel Swindle confessed to attempting to abort herself with Dettol, administered by a bicycle pump hidden in the cabinet of an old wireless set. The valve, sealed in a plastic pocket, is still in her inquest file at Victoria’s Public Records Office.
All things considered, however, prosecutions were few, and convictions fewer. The prohibition on abortion in Victoria was carried from the old Offences Against the Person Act into the new Crimes Act, but the Homicide Squad, who had carriage of the law, enforced it spasmodically. Why? In the period from the 1930s to the 1960s, it would seem, the midwives were steadily replaced by doctors. Patients now slightly better off and growingly conscious of safety felt more comfortable about a sotto voce referral at a GP’s surgery than disappearing down an alleyway in Collingwood. Doctors had waiting rooms. Doctors could offer antibiotics and anaesthetics. They charged exorbitant fees, in cash, on the nail. They set limits on term. But as the narrator observes in Katharine Susannah Prichard’s Winged Seeds (1950): ‘A lot of girls take this abortion business quite easily Bill. Of course, sometimes it ends in a dirty tragedy; but there are doctors and nurses who do the job skilfully, I know. Costs a lot – but at least you get hygienic surroundings.’
For police, doctors were also a great deal easier to shake down. They were wealthy, soft, protective of their good names. Police knew that there was a demand for abortion, that it would somehow be met. So rather than enforce a more or less unenforceable law, they decided to take a cut – or at least, in Victoria, the protestant police did. The Catholics were a different matter. The route to the Menhennit ruling was opened not by an act of democratic dissidence, or civil disobedience, or empassioned advocacy, but by the opposite – the law of unintended consequences.
In mid-1965, an ambitious new head of Homicide, Frank Holland, long-time secretary of the Order of St Christopher, the Catholic policeman’s club, decided that once and for all he would put abortionists in Melbourne out of business. ‘The law says abortion is illegal and that is enough for me,’ he explained tersely. Over the course of the next five years, ten Melbourne abortionists went on trial. One was Ken Davidson. One night in 2007 I walked home from the football through East Melbourne to check on what now occupied his last known address. To my surprise, he did – his name was on a brass plate on the door. Journalism is full of serendipitous discoveries.
Holland’s campaign inadvertently revealed a long and tangled relationship between doctors and the Homicide Squad, resulting in a headline-hogging Royal Commission, in which a prominent presence was a flamboyant and volatile GP, Bertram Wainer, who claimed that 100,000 abortions were performed in Australia annually. But here’s a strange thing. The commission’s interest was not in the procedure, or the legislation, or the ethics; its focus was police corruption, which was in the end a mere symptom of the hypocrisies of the age. The truly momentous development, Menhennitt’s ruling, went completely unreported. On the day in question, according to The Age, the most pressing question in feminism was: ‘Are Ladies in Trousers Respectable?’ It was only when Wainer put the standard to the test by publicising an abortion and police took no action that it became clear something had shifted. The ruling underpinned the 1972 foundation of his controversial clinic, the first of its kind in Australia.
Nothing is inevitable, as they say, until it happens. What has often struck me about the story of abortion’s stumbling progression to lawfulness and Menhennitt’s judicial activism avant la lettre is its evitability. Australia was not exactly in feminist upheaval: Germaine Greer’s The Female Eunuch (1970) and Kate Millett’s Sexual Politics (1970) were still to come. Nor was Victoria a bastion of liberalism. The stick-in-the-mud Bolte government was underpinned by Catholic conservatives through the preference support of the Democratic Labor Party. What would have happened had Frank Holland not thrown the Homicide Squad into an anti-abortion crusade? What would have been the outcome had R v. Davidson come before a Catholic member of the Supreme Court Bench, of which there were several, and very distinguished at that? The story caused me to rethink my conception of Australia, which suddenly seemed a country luxuriating in great freedoms, little understood and tenuously grounded, that it tends to take for granted.
Those freedoms are important, however, precisely because, beneath the economic blessings and sun-kissed surfaces, lived experience in Australia has been harsher and nastier than we’re comfortable acknowledging, that it’s involved the sucking up of a lot of suffering by those on its margins, that there are many, many things we’d rather not think about. My experience with The Racket has been modestly instructive. It was rejected by the publisher with whom I had originally discussed it; it appeared eventually in cheap and tatty form; it went unpublicised and unreviewed; it sold miserably and was pulped. Yet in the decade since, I have received more correspondence about it than almost anything else I’ve ever published, including personal tales all deserving of their own tellers. If we forget what the reality of illegal abortion was like, then we are, to use Ronald Ryan’s expression, in deep shit.