THE LEGAL PROBLEM

Evening Post, Volume CXXIII, Issue CXXIII, 10 April 1937, Page 8

THE LEGAL PROBLEM

In our comment upon the report of the McMillan Committee yesterday we dealt with the social and moral aspects of the committee's findings. Upon these aspects the committee gave a definite lead, though-, certain recommendations will naturally call for further consideration before 'they can be adopted. Upon/the legal aspect of the prob : lem, the punishment of criminal abortion, the committee was less definite, though decidedly helpful. It set out fairly and fully the main questions upon which it was qualified to advise, and the directions in which action could be taken. It definitely recommended the prohibition of the advertisement, or of the sale, except on medical prescription, of certain drugs and appliances which might be used for abortion purposes. This dealt with the fact to which his Honour, the Chief Justice, drew attention in the' fourth Ayes' trial, the apparent ease with which instruments can be procured which "the medical evidence says cannot be imagined of use in the hands of a private person for other than an illegal purpose." We assume that the Government will find no difficulty in giving-effect to this recommendation.

The committee further considered the difficulties encountered in obtaining evidence and securing convictions for criminal abortion. A more difficult issue is raised by the suggestion that practitioners who innocently come in contact with such, cases should be required to notify them before' death and without the consent of the patient. The committee had to face the. probability that, if notification were made compulsory, medical' aid would often not be sought until too late. ■ In ( other words, the choice lay between saving the life of. the patient and tracking down the abortionist. The committee chose not to increase the risk of death; and we cannot say that it was wrong. At the same time the i committee emphasised the duty of practitioners to advise a patient, especially if her condition were serious, to make a statement to the police, and, in fatal cases, to assist the police. There remains the legal aspect of the question. On this the report stated:

The committee cannot but take -a serious view of the repeatedly defnonstrated difficulties in securing convictions, ' even in the face of. apparently conclusive evidence of persons charged with inducing abortion and considers that the time has arrived when careful consideration should be given to the condition of the law relating to such crimes and to what steps are necessary to discourage effectively their practice.

The report further drew attention to the "serious , social, physical, and moral consequences which are likely to follow if effective steps are not taken to enforce the clear intention of the law." No particular steps were proposed. The committee did not mention the suggestion that majority verdicts should be accepted. But we interpret the committee's words as meaning that action is necessary and that it is the province of the Government as guardian of the law to determine what form that action should take. Consideration of further action must include careful weighing of the wisdom of majority verdicts. It is, we are aware, no simple problem and the great safeguard of justice given by requiring jury unanimity may not be lightly put aside. Yet, as we pointed out in previous comment on

this grave issue, the law is there to be enforced, jurors are' not lawmakers and refusal to convict in the face of conclusive evidence may amount to an unauthorised and unrepresentative alteration of the law. This in itself is a great evil. The community through its representative institutions must consider whether the mischief thus done is not greater than any ill that may be feared from corrective measures.