The conservative liberalism of NZ's abortion law

abortion is a touchy subject that continues to divide opinion and inspire heated debate in New Zealand. Which is the reason why we don’t talk about it much. Since the passing of the Contraception, Sterilisation and Abortion (CSA) Act 1977, the issue of abortion has been left largely untouched by successive governments, despite calls from both sides of the debate for reform.

Abortion law in New Zealand is not straightforward. To summarise briefly, the Contraception, Sterilisation and Abortion Act 1977 was adopted to implement the recommendations of a report by the Royal Commission on Contraception, Sterilisation and Abortion. The CSA Act 1977, and relevant amendments made to the Crimes Act 1961 constitute New Zealand’s abortion law, which is administered by the Ministry of Justice.

By law, abortion in New Zealand is a criminal offence. However, the law provides that in a number of exceptional circumstances, an abortion may be authorised by two certifying consultants. 98 to 99 percent of abortions in New Zealand under section 187A of the Crimes Act are authorised on the grounds that “the continuance of the pregnancy would result in serious danger…to the life, or to the physical or mental health, of the woman or girl.”

The Abortion Supervisory Committee (ASC) was established by the CSA Act 1977 and its powers and functions of the ASC are set out in section 14 of the Act. It is the responsibility of the ASC to “keep under review all the provisions of the abortion law, and the operation and effect of those provisions in practice.”

Law of good faith

In June last year, Justice Miller delivered a so-called ‘landmark’ judgement in a High Court case reviewing the functions of the Abortion Supervisory Committee (ASC) under the Contraception, Sterilisation and Abortion (CSA) Act 1977. Right to Life, a Christchurch-based organisation advocating for the rights of the unborn child, applied for the judicial review. Right to Life New Zealand’s spokesperson Ken Orr said that the organisation called for the review because they, and others in the community, were “concerned” that New Zealand’s abortion law “was not being upheld.”

Mr Orr says there was concern that “The ASC [was] not fulfilling [its] statutory duties as laid down by CSA Act.” He said that as a consequence “the rights of unborn children in New Zealand were being violated” and that the “health and welfare of women was not being protected.”

Justice Miller concluded that the abortion law, as it currently stands, does not recognise the right to life of an unborn child. Despite this, it was found that Parliament recognises through the abortion laws that “the unborn child has a claim on the conscience of the community, and not merely that of the mother.” This is recognised through law in that “abortions may be authorised by the certifying consultants only where they believe, in good faith, that continuance of the pregnancy would result in serious danger to the mother’s life or health.” Justice Miller concluded that “there is reason to doubt the lawfulness of many abortions authorised by certifying consultants.” He adds that the ASC itself has admitted that the abortion laws are being more liberally interpreted than Parliament intended. Furthermore, Justice Miller concludes that the ASC has “misinterpreted its functions and powers under the abortion law.” The ASC, Justice Miller stated, has incorrectly reasoned that the judgement in Wall vs Livingston means it “may not review or scrutinise the decisions of certifying consultants.”

Justice Miller’s judgement did not make any clear recommendations for the Government to act upon with regard to abortion law. President of the Abortion Law Reform Association of New Zealand (ALRANZ) Dr Margaret Sparrow says that no significant changes to the application of the law have occurred following Justice Miller’s conclusions. “As a result of Justice Miller’s comments the Abortion Supervisory Committee has reminded certifying consultants of their legal obligations but as they have been interpreting the law in good faith there has been no significant change,” she says.

The ASC appealed the decision of Justice Miller to the Court of Appeal, and Right to Life subsequently cross-appealed. The appeal is to be heard in the next few weeks.

Shh… don’t say a word

The conclusions made by Justice Miller brought to the surface—albeit briefly—lingering tensions over the state of the abortion laws that currently exist in this country. However, a reluctance on the part of politicians to put abortion back on the legislative agenda has stalled the chance for any open and frank public debate taking place.

Abortion law—and the prospect for reform—made the headlines of several daily newspapers in the days following the release of Justice Miller’s judgement. Some of the media coverage speculated that the conclusions drawn in the judgement could have serious implications for the application of New Zealand’s abortion laws and consequently, womens’ access to abortions. The pro-life lobby saw the judgement as another victory towards the legal recognition of the rights of the unborn child.

After a week or so of polarised debate in print, the issue of abortion, yet again, fell off the radar. In election year, no politician in either major party wanted to touch the issue of abortion with a six-foot barge pole. Whatever your personal views are on the subject of abortion, the conclusions drawn by Justice Miller are significant to the ongoing debate about abortion in New Zealand.

Liberal interpretations

There is consensus amongst many involved in the women’s health sector that some reform of the abortion law needs to occur. However, the reluctance of the general public and the government to engage in an open debate about abortion is a barrier to undertaking necessary reforms.

“The law as it currently stands, it is actually a conservative law that is being liberally interpreted,” says Fiona Robertson, whose involvement in women’s health and the abortion debate dates back to the 1977 Royal Commission

“It is quite a conservative law because it defines the grounds for abortion,” Ms Roberston says.

Lynda Williams, of the Auckland Women’s Health Council, says that the CSA Act “desparately needs bringing into the 21st century.”

“It’s a hugely outdated Act, but no government has yet been prepared to go there,” she says.

“The fear is that when you open that debate again and all those that are currently opposed to abortion do their things and get involved, the fear is that… we will end up with less of a service than we’ve got now, and they’ll toughen it up.”

Ms Williams says that the ASC has made several recommendations over the years stating that the Act needs to be revised, and that providing abortion services needs to be placed within the context of providing other women’s health services.

“That’s what needs to happen, but the risk is that we’ll lose even the bit that we’ve got now.”

Ms Roberston says that until women are prevented from getting abortions, the abortion law should be left as it currently stands. “As long as women are getting terminations, it kind of doesn’t matter [if they are] legal, or however they do it, but provided they can get their terminations I think you tolerate what you’ve got.”

Under the current law, abortion is considered a criminal matter, not a matter of women’s health.

“Abortion is not a crime. It is a health matter. There is no need to have grounds for abortion,” Dr Sparrow says.

“It is crazy that over 98 percent are done on the spurious ground of mental health. Abortion should be decriminalised as has happened in Canada in 1988… [and] more recently in the Australian Capital Territory, and last October in the State of Victoria abortion was decriminalised.”

Ms Williams has similar views. “I think the legislation just needs to be scrapped and the provision of contraception, sterilisation and abortion services needs to be part of the mainstream women’s heath services.”

Ms Robertson is concerned that New Zealand is not “adult” enough to see abortion as a health issue. “I don’t think New Zealand has got that viewpoint. It’s still seen as quite an ethical issue. It’s a women’s health issue and it’s nobody else’s business other than the woman’s.”

Minister of Justice Simon Power has justified the administration of the abortion law under the Ministry of Justice. “It is appropriate that the Ministry of Justice administers the Contraception, Sterilisation and Abortion Act. When Parliament decided that the Act should be administered in the Ministry, it ensured that the issues covered by the Act, particularly that of abortion, would not be treated as purely medical issues,” he says.

“Ministry of Justice officials regularly liaise with other government agencies about these issues and that includes the Ministry of Health and the Ministry of Women’s Affairs.”

Do way instain mother

Those on the other side of the abortion debate are concerned that the current abortion law is not being upheld. Communications Manager of Voice for Life Bernard Moran says that many of the measures that his organisation is advocating for can be achieved through better administration of the law.

Mr Moran says that the CSA Act was the “best law that was possible at the time” when it was passed in 1977. The law represented a compromise between two sides that had been engaged in a heated debate about abortion for several years.

The provision of counselling services, Mr Moran says, has been the major fault of New Zealand’s abortion law. Mr Moran would like women who are thinking about having an abortion to be provided with more adequate counselling services and improved information about the procedure and other options available to them, such as open adoption.

Right to Life New Zealand has been a vocal lobby group advocating for the rights of the unborn child. “We would like to see some improvements done, but at this moment we’re focusing on having the law, as passed by Parliament upheld,” says Mr Orr.

Right to Life New Zealand says that abortion is a criminal matter. “It is traditionally accepted in most states that it is a criminal matter because the state has a great interest in protecting the lives of its future citizens. It recognises that unborn children do have rights and they need to be protected,” he says.

Sleeping dogs

Given the current global financial crisis, and the government’s efforts to minimise its wider societal effects, it is unlikely that the issue of abortion will make the government’s legislative agenda in the near future. Minister of Justice Simon Power says that the National government has “no current plans to reform the abortion laws.”

In the event that abortion did make it back on to the public agenda, Mr Power says it would be dealt with as a conscience issue. “In the past, the main political parties, including the National party, have not developed a position on abortion but made it a conscience issue for each of their members of Parliament. If the issue of abortion made it back on to the public agenda, I expect that the National Government would treat the issue in a similar way.”

It seems unlikely that the New Zealand public will engage in another open debate on abortion in the near future. “Abortion is always a controversial issue and many people think that because the system allows abortion things should be left as they are,” Dr Sparrow says.

Letting sleeping dogs lie seems to be the easy way out in terms of the question of abortion law reform. However, the issue of abortion in New Zealand is not going to go away anytime soon. It will continue to inspire heated debate and divide opinions. Ultimately, Ms Williams says, “some government some time is really going to have to take the bull by the horns and just quickly deal with it.”

http://www.salient.org.nz/columns/health-or-justice

This story was syndicated by the Aotearoa Student Press Association via Salient www.salient.org.nz

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