CES v Superclinics was not meant to be a crusade about the legality of abortion in NSW, but a line of questioning from the bench about ss82 and 83 of the Crimes Act (1900) would cast the civil damages claim in a very different light. Catherine Henry discusses how the case continues to influence her work as a medical lawyer.
The CES litigation had sought compensation for the alleged negligence of several GPs who had failed to diagnose a woman’s pregnancy. By the time the claimant had confirmed through a different clinic that she was 19 ½ weeks pregnant, she was devastated to learn that it was too late to undergo a termination procedure.
Some years later, after the birth of the child, the woman engaged my law firm to sue Superclinics and its doctors for their alleged medical negligence.
Following a Court of Appeal decision in favour of the applicant in 1995, Superclinics applied for special leave to appeal and they were successful with that application. Then the case took an even more interesting turn. I learned that the Catholic Bishops Conference and the Australian Catholic Healthcare Association had applied to intervene in the High Court proceedings on an amicus curiae basis.
The intervention of the Catholic Church was a big news item and it happened late in the afternoon. Jo Wainer, who was on the news, said the Catholic Church had radically transformed this case from being about medical negligence to being the test case on abortion.