Return of the DIY Abortion

A hostile law, and stretched services, are pushing women onto the Internet for abortion care

by Alison McCulloch

While the spectre of the illegal abortionist in rough premises with dirty instruments is a thing of the past in New Zealand, there is mounting evidence that our cumbersome and onerous abortion legislation is pushing some women to bypass the law in an effort to obtain an abortion on their own terms.

According to figures from the Ministry of Health, a steady flow of medication that can be used to induce abortions is being intercepted at New Zealand’s borders each year by Customs. Last year, the Ministry says, 32 consignments containing mifepristone or misoprostol, both of which are used in legal medical abortion services, were intercepted and referred to Medsafe, the medical safety authority, for action. This year, the count so far stands at nine. What cannot be known is how much is slipping past the Customs net.

At the same time, the international abortion telemedicine service Women on Web, which provides advice and in some cases abortion medication to women primarily in areas with no safe abortion access, has reported that its help desk has seen a rising number of inquiries from women in developed countries where abortion is, in theory, available, including New Zealand.

Women on Web answers about 80,000 email inquiries each year from across the globe, and in about 4,000 to 5,000 of those cases, it also provides abortion medication directly to the woman, though only after an online consultation with a doctor. Dr. Rebecca Gomperts, the Dutch physician who founded Women on Web (and before it, Women on Waves, which runs ocean-going campaigns), says New Zealand is no different from other countries, like Britain and the United States, where abortion is accessible in theory but, in practice, “not for some groups of women”.

One recent inquiry the organisation received from New Zealand was from a woman who because she wasn’t a resident faced out of pocket costs of around $2,000 for an abortion. “She absolutely didn’t have the money,” Gomperts said. Another involved a woman who, because of rape, did not want the bodily invasion of a surgical abortion. She “really really wanted to have a medical abortion,” Gomperts said, but couldn’t access one in the area she was living.

Gomperts won’t comment on whether or not Women on Web provided the medication to these, or other New Zealand women. But she did say that because of the organisation’s philosophy that women have the right to access the medical treatment they need, its policy would be to help such women.

While abortion in New Zealand remains criminalized under the Crimes Act, it is relatively accessible, very safe, and free for residents and citizens. But the referral and approval procedures are complicated, and humiliating delays and waits for appointments are common, as are long journeys to the clinic – up to 10 hours in one recorded case – and the availability of the abortion pill is poor. All of which increases the likelihood women will try to find their own way to get hold of a medication which Gomperts believes they should have access to as a human right.

“What is so important about this medicine,” Gomperts says, “is that it really gives women autonomy in a very profound way, and that is also why the backlash against it is so strong.” She describes the abortion medication as revolutionary because it has de-medicalised the procedure. “It’s taking it away from the hands of health professionals because you don’t need a doctor to take a pill.”

But what about the risk of prosecution, either for importing the drugs or for trying to self-abort, both of which are illegal? In Australia, one young couple faced just that situation in 2009 when they were prosecuted under Queensland’s 19th century abortion laws, for allegedly procuring an abortion and supplying the drugs to do so. According to reports of the case, the young man and his girlfriend arranged for the drugs to be sent to Australia by a relative in Ukraine. Both faced hefty terms of imprisonment, but after a grueling 18 months during which their house was fire-bombed, their car vandalized and they were forced into hiding, the pair were acquitted by a jury on all charges.

There’s been no case like the Queensland one in New Zealand so far, though there has been legal action over the importation of abortion medication. In its 2004 report the Abortion Supervisory Committee, the statutory body that oversees abortion services, said it had been notified of four alleged illegal abortions involving both importation of abortion drugs and doctors “illegally facilitating abortion”.

It’s not known what happened in the cases of the doctors as there were no reports of prosecutions, but in 2006 an Auckland student was jailed for 20 months for offences including the importing and selling of abortion and contraceptive medication from China. According to The New Zealand Herald, it was the first case of its kind to come before the courts, with the student’s lawyer reported as saying his client “sympathized with the position of some young Chinese girls who found themselves pregnant, alone, with no family, few friends and little support”.

According to the Ministry of Health, the abortion medications intercepted here in the past two and a half years – all in quantities deemed for personal use – originated in China, Great Britain, the Philippines, the United States and India, with India the source of the vast majority. Werewolf asked the Abortion Supervisory Committee (ASC), if it was concerned about women seeking abortion medication through non-official routes. It responded only by saying that it was “not aware of this occurring, but if it was alerted to any instances of women seeking abortion other than through the lawful route, it would refer the matter to the appropriate investigating agency”.

As for the legality, or otherwise, of importing abortion drugs for personal use, the ASC said it could not comment, and simply pointed Werewolf to Section 44 of the Contraception Sterilisation and Abortion Act dealing with the illegality of self-abortion. Under that section, a woman is liable to a fine of $200 if she takes “any poison or any drug or any noxious thing” with the intent to procure a miscarriage, whether or not she is pregnant and whether or not what she takes is “in fact capable of procuring miscarriage”.

Women on Web argues on its Website that in most countries, it is in fact legal to receive medicine in the mail for personal use, and Gomperts points out that both mifepristone and misoprostol are considered essential medicines by the World Health Organisation. “What that means,” she says, “is that governments actually have a positive obligation to make sure that their citizens have access to these medicines.”

New Zealand law is, in theory, not quite that generous, although the practice appears fairly benign. The Ministry of Health makes clear that importing these kinds of medications, even in small amounts, without “reasonable excuse” is illegal. It cites Sections 43 and 78 of the Medicines Act 1981, which set out the requirements as well as penalties of up to three months in prison or a $500 fine. It’s not an easy Act for the non-lawyer to decipher, but the Ministry makes a good stab at doing so on its on Web site under the headline “The Legality of Importing Medicines”. According to that advice, if the amount of medication is no more than a “personal supply quantity”, the importer can meet the “reasonable excuse” requirement if she or he provides a prescription from “a New Zealand authorised prescriber” to Medsafe within 30 days. If a prescription isn’t provided, the drugs will be destroyed. In all but one of the recent cases, the Ministry said, no prescription was provided.

It appears there is little appetite to prosecute, however, with the ASC saying it was unaware of any cases other than those previously reported in the media. Werewolf was unable to locate evidence of any prosecutions for importing these medicines for personal use, which suggests the authorities see the destruction of the drugs as punishment enough.

Approximately one quarter of all pregnancies in New Zealand end in abortion, with one in every four women undergoing a termination in her lifetime, making it one of the most common medical procedures. It’s also a very safe one, with no deaths in more than 30 years. But despite the efforts of committed clinic staff and doctors, New Zealand badly lags comparable countries in providing timely care and in offering women the option of medication abortion.

Women seeking abortion in New Zealand have to wait, on average, more than three weeks between their first visit to a referring doctor and their abortion, according to a 2010 study, which showed that 53 percent of the women surveyed thought the wait was too long. Those waits contribute to New Zealand’s falling behind in providing early abortions. Latest figures, for example, show 77 percent of abortions in the UK are performed up to the ninth week of pregnancy, while the figure for New Zealand is 56 percent. Later abortions raise the risk of complications and death, and make it less viable for women to access medication abortions, which in New Zealand are used only up until the ninth week.

According to the latest Abortion Supervisory Committee report, only 6.6 percent of all abortions – of which there were 16,630 in 2010 – were medication abortions. As the ASC noted in its own report the previous year, in other countries where medication abortions are readily available, between 20 and 30 percent of women will choose that option. In England and Wales, the figure is 43 percent, while in Scotland the rate is over 72 percent.

Early medical abortion is available at only eight units in New Zealand only eight units in New Zealand and although the ASC has said it wants to improve that, progress is painfully slow. Asked by Werewolf if any further action was being taken, the ASC simply said that it was “monitoring the uptake”, adding that “Licensed institutions decide individually whether to offer surgical and/or medical abortions procedures (sic) in their facilities”.

One obstacle to use of medication abortion in New Zealand is the 35-year-old abortion law mandating that all abortions must be “performed” in a licensed institution. Medication abortion involves taking two sets of pills 24 to 48 hours apart – first Mifegyne® (generically mifepristone, formerly known as RU486 & pictured left) followed by Cytotec® (generically called misoprostol, which is available on prescription and also used to treat ulcers and prevent stomach bleeding after surgery). When Mifegyne was approved for use in New Zealand in 2001, the immediate question was what it meant to “perform” a medication abortion. Is it the handing over of the pills? Their administration? Or when the abortion actually occurs?

The importers of the drug, a group of doctors who formed a non-profit company called Istar, requested the ASC apply to the courts for a judicial review of the matter, and in 2003 received a High Court judgment stating that the pills must be administered in the licensed institution, but that the woman need not stay on the premises between the two doses, or after the last one. In many countries, the second set of pills can be taken at home, ensuring the abortion takes place there rather than on the bus or in the car en route.

Another factor in the slow uptake of abortion medication here is fierce advocacy by anti-abortion groups, and the ongoing fear of pretty much everything about abortion on the part of many politicians, DHB officials and health professionals. One obvious route for improving access, especially outside the main centres, would be to license Family Planning clinics to provide the drugs, something Family Planning tried to accomplish in 2009, when it applied for a license to provide medical abortions up until the ninth week of pregnancy at its clinic in Hamilton. The outcry from anti-abortion groups was swift and loud, with activists setting up an effective “Stop Family Planning” campaign and numerous groups joining in, including Catholic bishops, who lobbied government ministers over the issue.

Family Planning’s application languished with the Abortion Supervisory Committee for nearly two years before ultimately failing when the organisation finally withdrew it. The ostensible reason was that the abortion service for the Waikato District Health Board had been put out to tender, and the contract was not won by Family Planning but by the private AMAC clinic in Auckland.

While the contract issue is certainly part of the explanation, the lack of advocacy from public health officials, doctors and politicians in the face of such heated controversy played a big role, as it always does when the issue is abortion. While Family Planning says it remains committed to making early medical abortion an option for New Zealand women, it declined to comment for this article on what if any action it is currently taking to further this goal.

Meanwhile, according to an article late last year in The New Zealand Herald, The New Zealand Herald early medication abortion is still not available in the Waikato, with women wanting that option having to travel to Auckland. (Disclosure: The author is quoted in that Herald article as a spokesperson for the Abortion Law Reform Association of New Zealand, a pro-choice advocacy group, of which she is an active member.)

Lying at the root of New Zealand’s strained abortion services are an outdated and cumbersome law, which was passed in 1977 by an 87-member Parliament – it included just four women, all of whom opposed it. As previously noted, the legality of abortion is covered by the 1961 Crimes Act (it was amended by the 1977 legislation) under which women can only access a legal abortion by meeting one of a narrow set of grounds: where continuing the pregnancy poses serious danger to the life or mental health of the mother, cases of severe mental or physical handicap of the fetus, incest and other unlawful sexual relations, or severe mental sub-normality of the mother. Rape and extreme ages of the girl or woman are not grounds for abortion in New Zealand. (The grounds are tighter for pregnancies over 20 weeks.) Two certifying consultants – doctors specially appointed by the ASC – must sign off on each abortion, and currently, more than 98 percent are approved under the mental health ground, a liberal interpretation of the law that is at the heart of the current Right to Life v Abortion Supervisory Committee court case, on which a decision by the Supreme Court is imminent.

As Rebecca Gomperts points out, there are few countries in which women get to make the decision themselves, and none in which they can follow that decision up by directly accessing abortion medication. But it’s something her work has led her to see as a basic human right.

“There is still a fundamental distrust of women being able to make the decision about their own bodies and their pregnancies,” Gomperts says, “and I think that if you really argue through what a medical abortion can do … and compare it to a miscarriage, to situations where women are being trusted to make decisions and to do it on their own, the only conclusion that you can take is that the medicines for medical abortion should be available to women directly and with good information as with any other medication,” she says. “There are more men dying from using Viagra than women using medical abortion. If you look at the rates, it’s more dangerous to use penicillin, it’s even more dangerous to use Paracetamol.” The spectre of danger that lurks around abortion is a social construct, a media construct, she says, “it’s not a reality”.

As for concerns that making abortion medication more easily available would lead to it being given to pregnant women against their will, Gomperts notes that carrying out any medical procedure against a person’s will is illegal, and covered by statutes against assault, abuse and mistreatment.

Women on Web started out, she says, with a “harm reduction” model: where women had no other option but an unsafe abortion, the service would provide help. But over time, and after studying the safety of what it was doing, the organisation moved toward a rights approach. “It’s not only about getting access to abortion,” Gomperts says, “but actually women have rights to be able to access medical abortion on their terms”. She says women are very capable of dealing with medical abortion themselves. “It’s like miscarriage, and women are dealing with miscarriages in every situation, and the difference with the medical abortion is that you actually can plan it so that you can actually be near a hospital or a first aid facility when you take the medicines.”

“Our philosophy is that if we really respect women, and we really trust them, and we trust them to become parents and to be pregnant, we have to trust them also to be able to take a medical abortion on their own terms.”

Alison McCulloch just finished a book on the recent history of the reproductive rights struggle in New Zealand.

Photo Credit: Image of October 2010 Wellington protest outside Court of Appeal: ALRANZ

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