While social attitudes are clearly changing toward abortion, the politicians are only just catching up, and they now face the need to overhaul a patently outdated and farcical legal framework.
Abortion is still illegal in this country, technically, at least. Of course it’s usually possible to get an abortion but women have to jump through a number of bizarre hoops to get there. It’s all due to the entirely inadequate piece of legislation enacted in 1977 – the Contraception, Sterilisation and Abortion Act, as well as the Crimes Act 1961. The 1977 law was highly problematic when it was passed, and the framework of rules has only got more ridiculous over time, meaning modernisation of the law is well overdue.
New Zealand’s abortion laws are, in formal terms, among the most restrictive in the world. In practice, they operate much more liberally, giving women varying degrees of access to abortion services.
Gordon Campbell had a good article yesterday on the current situation – see: On the conflicts over abortion. He challenges the notion – put forward on Sunday by Prime Minister Bill English – that the current arrangements are working fine: “So let’s take stock: a cumbersome law that delivers abortion services inequitably throughout New Zealand. A conservative law that criminalises abortion, and relies on subterfuge to operate in the liberal fashion that the public expects, and demands. Abortion procedures being partially abetted and superseded by chemical agents, self-administered, by those able to access and afford the pills involved. And a Women’s Minister and deputy PM busily chirping that she’s ‘pro-choice’ to liberal voters in Auckland while otherwise sitting on her hands. Yep, nothing to see here, move on.”
New Zealand’s strange abortion laws
The legal status and practice of abortion services in New Zealand has been discussed much more than usual recently. Plenty of articles have looked at the reality and detail of what happens in this relatively cloistered area. For example, Henry Cooke reported this week on recent statistics: “Around 13,000 abortions were performed in total in 2015, down from over 16,000 in 2010. One in four Kiwi women are estimated to have had an abortion” – see: Hundreds of Kiwi women told their abortions were 'not justified'.
Using material obtained under the Official Information Act, Cooke also found the number of women being denied – at least, initially – abortion services remained constant: “Last year, 252 ‘not justified abortion’ certificates were issued. Close to 1500 have been handed out this decade.’
But the final numbers of women denied abortions is not compiled by the Abortion Supervisory Committee, which is the agency with the role of overseeing the laws – see Kristin Hall’s Hundreds of 'not justified' abortion certificates given to Kiwi women.
This has raised the question of just how restricted abortion services are in New Zealand. Recently, Stephanie Rodgers explained: “It’s difficult to access, especially if you aren’t bureaucracy-savvy or don’t live in a major centre. A pregnant person on the West Coast will have to travel to Christchurch, at least twice, to a clinic which is only open a few days each week, to terminate a pregnancy. They’ll need to take time off work or find last-minute childcare and god forbid they’re in a vulnerable situation where they have to keep it all a secret. We’re talking about a safe medical procedure, a basic question of personal agency, a life-changing situation not adequately supported by our health system” – see: The political prospects for 2017: living our values.
According to left-wing activist Daphna Whitmore, the current arrangements also do not equate with good health practice: “This farcical charade is because the law denies the woman the right to make her choice independently. The legal obstacle-course means abortions happen later than ideal. It is unnecessarily costly, involving medical specialists to certify abortions and is far from best medical practice” – see: Getting abortion out of the Crimes Act.
Whitmore elaborates: “If abortion was decriminalised, clinics could provide services locally. For instance, if the law was changed women could have a relatively simple medical abortion by taking tablets to induce a miscarriage. This could be provided by a nearby GP or a family planning clinic, as early as three weeks and up to nine weeks of a pregnancy. Later abortions require surgical intervention. Earlier abortions are safer, easier and recognised as best practice.”
The recent history of abortion laws
To understand the current abortion laws and their history, it’s well worth reading Ben Thomas’ 2008 NBR article, Time to stop being polite, which explains how the laws ended up being a compromise between the pro-life and pro-choice sides of the debate: “The deal brokered in 1977 following a royal commission inquiry was commonly referred to as the abortion compromise. That's possibly a more roundabout way of describing it than a "polite fiction." Abortion as a woman's individual right was rejected. It was permitted only as a medical procedure where the prospective mother faced serious physical or mental harm as a result of carrying the unborn child to term.”
So in law, abortion would be a crime and covered by the Crimes Act. But there would effectively be exemptions for women who could satisfy certain criteria. In the few years after the law was passed, this was seen as a major defeat for the pro-choice movement, abortion clinics closed, and thousands of women had to go to Australia for abortions instead.
Eventually, the restrictive laws began being interpreted in an increasingly liberal way by many doctors. But there has always been a somewhat dishonest and degrading nature to the compromise. Women and medical consultants would essentially have lie about their situation, or least stretch the truth beyond credibility. This meant that in 2008 a judicial review of the practices of the act found that the law was apparently being broken. This is covered very well by Chris Barton’s 2009 feature article, Abortion: all agree the law is an ass.
Barton explained that “High Court Justice Forrest Miller gave voice to what some had suspected for some time – there is "reason to doubt the lawfulness of many abortions authorised by certifying consultants" in New Zealand.”
Barton also discussed whether this arrangement was satisfactory: “There are some arguments for doing nothing – the law, despite being outdated, does actually allow women to get abortions, even if they do have to go through a cumbersome, some say demeaning, process that sees most of them granted an abortion because of the danger to their mental health. On the other hand, the law is doing the opposite of what it set out to do – to provide restrictions on abortions. As Right to Life argued before Justice Miller, the effect of the law is that ‘New Zealand has abortion on request.’ The irony of the situation is that both factions in debate actually agree on one point – the law is an ass.”
There was further very interesting analysis of this debate at the time – see No Right Turn’s Abortion: Putting it back on the agenda, and Karl du Fresne’s Abortion law travesty exposed.
Public views on abortion laws
So is New Zealand as divided over abortion as it was in the 1970s? It appears that New Zealanders are now much more liberal. Sally Murphy reports on one recent survey: “More than 50% of people think an abortion should be legal if the woman does not want to be a mother or cannot afford another child, a new survey shows” – see: More than half NZers back legalising abortion – survey.
Further details of the poll results can be found in Nicholas Jones’ report, Health Minister Jonathan Coleman's abortion stance 'contradictory': Andrew Little. For example, in the scenario that a “Pregnant woman is likely to die without an abortion,” 77% supported abortion being legal, with 5 per cent disagreeing, and 18 per cent being unsure or refusing to answer.
The research was carried out by David Farrar’s Curia research company, and he presents the results in a different way, showing the “net level of support” for each scenario – for example, 72% favour abortion being legal if the women is likely to die – see: Poll on abortion.
Commenting on these results, Terry Bellamark of the Abortion Law Reform Association, says “These numbers demonstrate New Zealanders overwhelmingly support abortion on request. It’s not even close” – see: New Zealand Is Pro-choice on Abortion.
Bellamark calls for reform: “why can’t we have a system that is cost effective instead of wasting money on certifying consultants? Why can’t we have a system that doesn’t force patients to waste time running around getting approvals, necessitating more complicated and expensive procedures? Why can’t we have a system that puts the patients’ welfare first, instead of prioritising a box-ticking exercise to satisfy a 40-year old abortion bureaucracy? Don’t ask the Ministry of Health. The abortion bureaucracy comes under the Ministry of Justice. Because abortion is still a crime. The current system serves everyone poorly. It’s not good enough. We need to decriminalise abortion, and reform our antiquated abortion laws.”
Pro-choice campaigner Sarah Batkin has started a petition for reform on Change.org, and it currently has 12,612 signatures – see: Legalise Abortion in New Zealand.
Finally, for three personal accounts of women’s experiences of abortion, see Frances Cook’s Real stories of women who've had an abortion in New Zealand, and The Spinoff’s two anonymous accounts: To the staff of Wellington Hospital’s Te Mahoe clinic, and ‘I love my child to the end of the world. But if I could go back and change it, I would change it’
