Abortion Law Reform –
Update November 2018

From the December 2018 AWHC Newsletter

New Zealand’s abortion legislation is one step closer to reform thanks to recent advice provided by the Law Commission to the Minster for Justice, Andrew Little.
In February, Andrew Little requested the advice on how best to ensure that our abortion laws are consistent with treating abortion as a health issue, and said that “he expected the Commission’s advice to include reviewing the criminal aspects of abortion law, the statutory grounds for abortion and the process for receiving services.”
The Commission was asked to provide within eight months of the Minister’s request and public submissions were sought between; 3,419 submissions were received.
The Law Commission provide three alternative approaches to the abortion laws in the event of abortion law reform:

Model A: there would be no statutory test that must be satisfied before an abortion could be performed. The decision whether to have an abortion would be made by the woman concerned in consultation with her health practitioner.
Model B: there would be a statutory test. The health practitioner who intends to perform an abortion would need to be satisfied that the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing.
Model C: there would be no statutory test until 22 weeks of a pregnancy. After 22 weeks, the health practitioner who intends to perform an abortion would need to be satisfied that the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing.

Because Model A requires no statutory test, no abortion legislation would be required at all and thus the abortion provisions in the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977 would be repealed. The Law Commission report points out that “most health services are not subject to their own legislative regime and are instead governed by this general health regulatory framework.” Models B and C both require a statutory test so there would be a legislative requirement.
Under all three models two changes to the law would be required: both the current grounds for abortion in the Crimes Act and the requirement for abortions to be authorised by two certifying consultants would be repealed. From a criminal perspective, the Law Commission “proposes either repealing the criminal offences for abortion or amending them so that they only apply to unqualified people who perform abortions.”
In addition the report sets out other law changes that could be made to align the law with a health approach to abortion including:

Repealing the criminal offences in the Crimes Act relating to abortion. Instead, other offences in the Crimes Act and health legislation that currently exist would protect women from unsafe abortions. If Model B or C is adopted, an additional offence could be introduced in health legislation for people who perform abortions that don’t meet the statutory test. In no case would the woman be subject to an offence.
Allowing women to access abortion services directly, rather than having to get a referral from a doctor as they do under the current law.
Removing the current restrictions around who may perform an abortion and where abortions must be performed. Instead, the provision of abortion services would be regulated by appropriate health bodies, the same as any other health care procedure.
Moving the Abortion Supervisory Committee’s oversight responsibilities to the Ministry of Health.
Requiring health practitioners who do not wish to provide health services in relation to abortion because of a conscientious objection to refer women to someone who can provide the service.

Where to from Here?

Andrew Little said at the time that he received the report he would be “taking time to talk [to his] colleagues across all parties about the Law Commission’s briefing before progressing further.”
In an article on newsroom.co.nz, it was reported that Ministers will be briefed on the Law Commission report before Cabinet decides which of the three proposals, if any, it supports, and that Newsroom “understands this will likely occur sometime next year.”
Any bill will face a conscience vote, and MPs will not have to vote along party lines. However, New Zealand First’s policy is that any reform be put to the public in a referendum, but Andrew Little prefers further public consultation through the Select Committee process.

Submissions Received

A total of 3,419 submissions on abortion law reform were received by the Law Commission from a diverse range of individuals and organisations. Of the total submissions received, 61 were from organisations such as government bodies, professional organisations, academic groups, religious organisations and interest groups. A further four submissions were made by peer groups within professions. The remaining 3,354 submissions were from people speaking in their personal capacity.
The Law Commission report noted that “a significant number of personal submissions were based on the Family First New Zealand pamphlet “I’m with both”, which was produced to assist people to make a submission. These submissions followed similar themes and included similar or identical comments.”

In addition they say that “that although 3,419 submissions were received, this does not mean 3,419 separate viewpoints were expressed. Some submitters made duplicate or follow up submissions, which were recorded as separate submissions.”

Not all submitters addressed the most significant issue that the Law Commission was asked to address; that of decriminalising abortion and treating it purely a health issue. Two thousand, two hundred and eighty submitters did so and of these, 1,677 opposed decriminalisation, while 603 supported treating abortion as a health issue. The remaining 1,139 submitters did not expressly address decriminalisation.

Among those who supported treating abortion as a health issue or removing abortion from the Crimes Act the predominant concerns were the rights, interests, health and wellbeing of women including:

The right of women to bodily autonomy
That abortion is a medical procedure or health care issue and that decriminalisation is crucial for women’s mental and physical health and wellbeing.
That women suffer stress as a result of the current process for obtaining an abortion.
That culturally-informed, evidence-based abortion services should be part of comprehensive sexual and reproductive services for all.
That decriminalisation is needed to ensure timely and equal access to services and to simplify the clinical care pathway to promote earlier, and therefore safer, abortions.
That the current law is outdated or not fit for purpose and does not reflect technological or medical advancements.

That women should not need to lie about their mental state or be declared mentally unfit to access abortion services, and that this is demeaning, traumatic and not reflective of reality.

The Law Commission report, Alternative approaches to abortion law, Ministerial briefing paper can be accessed at https://www.lawcom.govt.nz/abortion
The submissions received by the Law Commission on abortion law reform can be accessed at https://submissions.lawcom.govt.nz/category/abortion-law-reform/

Abortion Law Reform 2018

From the May-June 2018 AWHC Newsletter
Abortion law reform is on the political agenda, with the Law Commission having sought public submissions in May this year, in response to a request by Minister of Justice, Hon Andrew Little, for them to “provide him with a briefing on what alternative approaches could be taken in our legal framework to align with a health approach.”

The Law Commission expects to provide its advice to the Minister in October 2018.

In May, in a history making referendum, Ireland voted overwhelmingly to overturn that country’s ban on abortion by 66.4 per cent to 33.6 per cent. Previously, abortion was permitted in only a very few cases with researchers saying as many as 3500 women seeking abortion in Britain each year, while another 2,000 end their pregnancies with pills they buy over the Internet and smuggle into Ireland for the procedure.

Ireland’s new abortion law will allow unrestricted abortion up to 12 weeks, and beyond that in cases of fatal fetal abnormalities or serious risks to a mother’s health, bring Ireland more in line with the other 27 members of the European Union.

Irish Times columnist Finan O’Toole tweeted that “…every part of Ireland has voted in broadly the same way, which is to trust women and make them fully equal citizens.”

While New Zealand’s abortion laws are not anywhere near as restrictive as Ireland’s were, abortion here is still a crime. Under certain limited circumstances, and with the approval of two certifying consultants, New Zealand women may have an abortion. Abortion falls under both the Crimes Act 1961 and the Contraception, Sterilisation and Abortion Act 1977, which is the last time any real political debate was held on the issue.

Circumstances that do not qualify as grounds for abortion include a baby conceived as a result of sexual violence, although conception as a result of incest is grounds for an abortion. After twenty weeks gestation, that the development of the fetus is such that the child will be born with severe and unsurvivable disabilities in the very short term (for example, congenital conditions that would lead to death during or soon after birth, and or degenerative conditions that will cause significant pain and suffering to the child for the duration of its short life), are not grounds on which an abortion may be approved.

While there is a widespread belief that women can get abortion on demand in New Zealand, that is not the case, and every year women are denied abortions. Specific statistics on denied abortions are not collected. However, in 2017, under the Official Information Act, Stuff obtained “not justified” certificate numbers from the Abortion Supervisory Committee; the ASC noted that a “not justified” certificate did not necessarily indicate a denied abortion, as a third consultant could declare that the abortion was justified.

Over six years between 2010 and 2016, 1485 “not justified” certificates were issued (2010 – 344; 2011 – 181; 2012 – 198; 2013 – 283; 2014 – 216; 2016 – 264), representing approximately that number of women who were denied abortion or who had to find a third certifying consultant to approve her abortion.

The reality is that for most women who do not wish to continue with a pregnancy, they have to plead that they will be so adversely impacted either physically or mentally that to continue the pregnancy will destroy them. There is still – rightly or wrongly – significant stigma associated with mental illness and for a woman to be forced to say that she will suffer mental illness if she continues with a pregnancy, as a means to get an abortion is unnecessarily cruel and degrading.

The path to abortion law reform is not clear, but an article on Newsroom by ex-MP, Peter Dunne, suggests the process may be a lengthy one and even if law reform is sufficiently supported by the community and Parliament, changes in the current legislation may still not happen until after the next election in 2020.

The Auckland Women’s Health Council advocates for and supports freely available access to, and information about, contraception, sterilisation and abortion services, and this is mentioned specifically in our constitution. We have made submissions in the past on various issues to do with the availability of abortion and the information provided to women on abortion, and remain committed to the concept of women being able to make informed decisions around this highly emotional topic. The decision to have an abortion is never taken lightly but is every woman’s right to make.

The AWHC made a submission to the Law Commission in May. The essential points from our submission are that:

abortion is a health issue and should be removed from the Crimes Act;
culturally and socially appropriate and acceptable language must be used in all governing legislation and regulations;
free abortion services must be provided within the public health system;
access must be through self-referral; or if any medical referral is necessary, any GP or sexual health doctor can refer a woman for an abortion without the need for certifying consultants;
safe medical abortions* should be offered to women at home where appropriate;
that strict criteria for abortions over 20 weeks are maintained, but that those criteria include cases in which the development of the foetus is such that the child will be born with severe and unsurvivable disabilities.

There is likely to be further public consultation on the issue of abortion law reform and we encourage all New Zealand women to have their say on this issue. We will endeavour to let our members, readers, Facebook followers and website visitors know as soon as we become aware of further public consultation opportunities.

* the use of drugs to induce ‘miscarriage’ as opposed to the traditional surgical method of abortion.

Sources:

Abortion Law Reform on the Law Commission Website at http://lawcom.govt.nz/news/abortion-law-reform

Booth, W. and Stanley-Becker, I. (2018): Ireland votes to overturn its abortion ban, ‘culmination of a quiet revolution,’ prime minister says, 26 May 2018, The Washington Post, US.

Cooke, H. (2017): Hundreds of Kiwi women told their abortions were ‘not justified’, 13 march, 2017, Stuff, accessed at https://www.stuff.co.nz/national/health/90390584/hundreds-of-kiwi-women-told-their-abortions-were-not-justified

Dunne, P. (2018): What our abortion debate would look like, 1 June 2018, newsroom, accessed at https://www.newsroom.co.nz/@health–science/2018/05/31/112557/what-our-abortion-debate-would-look-like

REFORMING NEW ZEALAND’S
ABORTION LAWS

There is little disagreement that the Contraception, Sterilisation and Abortion (CS&A) Act of 1977 needs to be overhauled. Those on both sides of this never-ending and uncompromising debate want the law changed. The Abortion Supervisory Committee that oversees the Act and reports directly to Parliament has repeatedly called for reforms to the CS&A Act in its annual reports, but to no avail. No political party is brave enough to even start the conversation and open public debate due to the strong feelings on both sides, and the harassment that inevitably seems to follow from the Right to Life society.

Decriminalisation of Abortion Law

The CS&A Act and the Abortion Supervisory Committee that oversees the Act are administered by the Ministry of Justice as the Act comes under the Crimes Act. Abortion is a woman’s health issue, not a crime. Abortion services should therefore be overseen by the Ministry of Health. This would decriminalise abortion and enable improvements to abortion services to be made more effectively.

New Zealand is not the only country facing this issue. In October 2008 the Abortion Law Reform Act was passed in Victoria, Australia, bringing the law relating to termination of pregnancy into line with existing clinical practice and community attitudes. The passing of the Abortion Law Reform Act was achieved after a long campaign by abortion law reform advocates in Victoria who ran an informed and educative campaign focused on political lobbying. In May 2010 Lynda Williams attended the 6th Australian Women’s Health Conference held in Hobart and spoke with some of Victoria’s abortion law reform campaigners. More information on how the law reform was achieved in Victoria and the lessons for New Zealand can be found in a report “A Road Map to Abortion Law Reform” written after the conference.¹

Cost of NZ’s abortion service

The current abortion service is costing NZ taxpayers over $5 million a year in consultant fees. There are 176 certifying consultants on the ASC’s list of practitioners who act as consultants for women considering a termination of pregnancy. The CS&A Act requires that a woman see two certifying consultants who must both agree that she has legal grounds for an abortion. (In 2009 17,230 of the 17,550 abortions were granted on the grounds that there was a danger to the mental health of the mother.) Each consultation costs $135.

This system is long past its use-by date and is both cumbersome and unnecessarily costly. Whatever the reasons were in 1977 for establishing such a process, they no longer apply now. The money is needed to improve the quality of the service and to improve access to abortion services for women in rural areas who are currently not receiving timely access to services. It is time for change.

References

A Road Map to Abortion Law Reform May 2010.

Abortion Law Reform – Update November 2018