NZ Abortion Law Under the Spotlight

by Andy Moore // May 20 2009

On 15 December 1977, the National Government passed the Contraception, Sterilisation, and Abortion Bill into law. The long title of the Act mentions that it was enacted “to provide for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child.”

This was designed to ban abortions in all but the most extreme cases. It established the Abortion Supervisory Committee (ASC), and laid out the grounds on which an abortion could legally be performed. The ASC selects a number of certifying consultants who assess women seeking to have an abortion. Two of these certifying consultants must then establish that the woman’s life or her physical or mental health is in serious danger before an abortion may proceed.

In 2007, 98.7% of the 18,382 certified abortions performed in New Zealand were approved on the grounds of the mental health of the mother being at risk. The vast majority of this figure actually represents “convenience-abortions”, since the mother’s health was not sufficiently endangered as to warrant an abortion under the law.

Indeed the Contraception, Sterilisation, and Abortion Act 1977, Section 37 (2) states that an abortion is only justified if it “is immediately necessary to save the life of the patient or to prevent serious permanent injury to her physical or mental health”. The Crimes Act 1961, Section 182 (2) also states that the only exception where an abortion is justified is if it is “in good faith for the preservation of the life of the mother”.

In New Zealand, the number of pregnancies presenting a serious threat to the mother is under 1%. With approximately 78,000 known pregnancies in 2007, you would expect the number of abortions to have been around 780. Why then, were there over 18,000 abortions performed?

It is the duty of the ASC to ensure that the certifying consultants are operating within the law. The reason for New Zealand’s incredibly high abortion rate is that the certifying consultants have been approving numerous abortions that should never be permitted. For this reason, lobby-group Right to Life NZ made an application to the High Court for a judicial review of the performance of the ASC.

The following is an excerpt from the June 2008 judgment of Justice Miller in the case Right to Life NZ vs. the ASC:

“There is reason to doubt the lawfulness of many abortions authorised by certifying consultants. Indeed, the [Abortion Supervisory] Committee itself has stated that the law is being used more liberally than Parliament intended…

…The [Abortion Supervisory Committee] has misinterpreted its functions and powers under the abortion law, reasoning incorrectly that Wall v Livingston means it may not review or scrutinise the decisions of certifying consultants.”

Though Justice Miller ruled in favour of Right to Life, the ASC has appealed the ruling in an effort to defend themselves. Therefore, early last week (May 12–13), Right to Life was in the Court of Appeal, opposing the overruling of the original decisions by Justice Miller that, “there is reason to doubt the lawfulness of many abortions”, and that “the ASC has misinterpreted its functions”. This was a monumental case for New Zealand; the biggest development since abortion was legalised back in 1977.

If Justice Miller’s ruling is upheld, this will herald a significant shake-up for the application of abortion law in New Zealand. It will re-establish the precedent that the unborn human being has a status that merits protection in law, and that abortion “for reasons of social convenience” is unacceptable. Certifying consultants will be forced to be much more stringent when approving an abortion on mental-health grounds.

However in an unexpected turn of events, the Court of Appeal dismissed the case on Tuesday, determining that the original case should be re-heard in the High Court, saying the case was outside its jurisdiction. This will probably take place some time next year.

Following hard on the heels of this are revelations that various District Health Boards have not been adhering to the Code of Health Rights (1996). In November 2008, Right to Life NZ contacted the District Health Boards (DHBs) throughout New Zealand, asking for their policy on pregnant women being offered to see an ultrasound picture of their unborn baby. The Waikato DHB stated that “to offer a woman an opportunity to view her scan would be an infringement of a patient’s rights”.

The Health Commissioner responded in April 2009:

“…clearly, a woman undergoing an ultrasound scan has the right to view her scan…she also has the right to decide not to view the scan. In order to exercise this choice, a woman will know that she is able to view the scan. I have written to Waikato DHB reminding them of Right 6 of the Code, which states that consumers have the right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive. In my view, this would generally include the information that the woman may view the scan should she wish.”

If a pregnant mother has a right that she is unaware of, it follows that she should be made aware that she has this right. Any attempts to keep women from seeing the scan of their unborn child can only be seen as a condemnable subversion of the rights of both the mother and her child.

Prolife UC is deeply concerned that New Zealand’s legislature is failing to protect the rights of our unborn children. If our government is genuinely concerned about New Zealand’s unacceptably high abortion rate, they should keep the ASC accountable for their actions. Given that unborn babies are incapable of speaking for themselves, we believe it is imperative that those of us who were not aborted speak up for them. Prolife UC exists as a hub at the University of Canterbury for pro-life students and to raise awareness on the issue of abortion in New Zealand. As well as having club meetings during term-time, we run public forums and seminars, designed to stimulate discussion on this important issue.

For references of quotations/statistics cited above, email Andy.