Abortion in the Dock

The Supreme Court’s recent upholding of the status quo on abortion access doesn’t fix the problems our outdated abortion laws continue to create

by Alison McCulloch

It has been almost 35 years since 40 men and no women voted the Contraception Sterilisation and Abortion Bill into law, and less than a month since the latest skirmish over that same law ended with a Supreme Court decision to keep the status quo largely intact.

Our current abortion law was wildly unpopular when it was passed in December 1977. Its immediate effect was to close down the only abortion clinic in the country, forcing hundreds of women to travel to Australia for abortions they could no longer get at home. But slowly, abortion services were established and doctors grew more confident about authorising them under the legal grounds that the law had set in place.

Now, all those decades later, the law is still unpopular – and on both sides of the endlessly contentious abortion issue. On the pro-choice side, it is seen as an archaic, punitive piece of legislation that criminalises what should be a private health matter left up to the woman concerned. On the anti-abortion side, it’s not so much the law that’s considered bad, but the implementation of it. How can 15,000-plus abortions a year be legal under a statute that, according to the Society for the Protection of the Unborn Child (SPUC) at the time of its passage, should allow for fewer than a hundred?

It was on that very point that the anti-abortion group Right to Life (RTL), the Christchurch based off-shoot from SPUC, launched its latest legal assault on abortion access, early in 2005. It took aim at the Abortion Supervisory Committee (ASC), the three-member body appointed by Parliament that is charged with overseeing the law. In its action, RTL sought a judicial review of how the committee was performing – or not performing, in RTL’s view – its statutory duties. (RTL also challenged the abortion counselling regime in New Zealand and sought to have the right to life of the embryo from conception enshrined in law. These parts of the case were lost at earlier stages, and ALRANZ has a detailed timeline.)

By the time the case reached the Supreme Court this year, it was focussed around whether or not the ASC could or should be scrutinising doctors’ individual decisions in abortion cases. Under the law, for an abortion to be legal it must be approved by two certifying consultants in line with one of the grounds set out in the Crimes Act 1961: serious danger to the life, physical or mental health of the mother, incest or sexual relations with a guardian, mental subnormality of the woman or fetal abnormality. (The grounds are narrower and stricter after 20 weeks of pregnancy.) It’s the fact that more than 98 percent of all abortions are authorised under the so-called mental health ground that RTL saw as evidence of an ASC that wasn’t doing its job.

They were given a boost on that point in 2008, when Justice Forrest Miller said in the High Court that there was “reason to doubt the lawfulness of many abortions authorised by certifying consultants. Indeed, the Committee itself has stated that the law is being used more liberally than Parliament intended”. Majorities of both the Court of Appeal and later the Supreme Court were not happy with Miller’s “observations”, saying he went too far in his comment about lawfulness. But Miller was right that the ASC itself had pointed to problems with the law – something both anti-abortion and pro-choice groups also contend. New Zealand’s abortion law, almost everyone agrees, is not working.

Which was one reason pro-choice campaigners weren’t at all confident that this case would go against RTL – and breathed a collective sigh of relief when news broke on 9 August that a 3-2 majority of the Court had decided – against RTL – that it was not the ASC’s job to be second-guessing decisions doctors make about abortions.

Key to the justices’ decision was a 1982 precedent set in a case known as Wall v Livingston, named for an anti-abortion doctor, Melvyn Wall, and a certifying consultant, Derek Livingston, who had approved an abortion for a 15-year-old New Plymouth girl. (Livingston died on 20 July this year at the age of 83.) Wall challenged the approval, but the court dismissed the challenge, ruling that decisions by certifying consultants were not open to review. Indeed, it is that very Wall v. Livingston precedent that is so crucial today in propping up the relatively liberal abortion regime that eventually took root beneath New Zealand’s conservative abortion statute. And it was precisely that precedent that was under threat in the Right to Life case. In the end, though, Chief Justice Dame Sian Elias, along with justices Andrew Tipping, and Peter Blanchard upheld Wall v. Livingston, writing in their judgment that:

the Committee cannot, even after the event, make any inquiry or investigation into the decision-making in an individual case where that would tend to question a decision actually made in a particular case … To do this would be to engage in a process of attempting to review the clinical judgment of the consultant in an individual case – something which, as Wall v Livingston recognised, is not contemplated by the Act.

The court did, however, throw RTL something of a lifeline, arguing that even though individual decisions by doctors were off limits, the ASC “could, in our view, ask a consultant how he was approaching decision-making in general – over the whole of his workload under the Act”. In responding to its loss, RTL used that point in order to claim victory: “Supreme Court confirms duty of Abortion Supervisory Committee to hold certifying consultants accountable for abortions they authorise,” it said in a media release. RTL went on to argue that the ruling “places certifying consultants on notice”, and that it expected the implementation of the Court’s decision would “place restraints on the abortion on demand regime that prevails in New Zealand”.

As RTL’s statement made clear, anti-abortionists are certain to use the judgment to pursue the ASC to pursue certifying consultants, though as of last week, the committee said it had received no such requests from Right to Life. Asked if it had any comment on the outcome, the ASC said it was “still considering the Judgment and is taking advice as to how it may adjust the enquiries it already makes of certifying consultants”. RTL indicates it will be holding the Justice and Electoral Select Committee’s feet to the fire to “ensure that the ASC complies with the requirements of the judgment”. And so the skirmishing will go on.

The case – which was so crucial to continued abortion access in New Zealand – has received little attention or analysis in the mainstream news media. For pro-choice activists, the outcome was a little too close for comfort and could quite easily have gone the other way. Indeed, were it heard today, it might well do so. Two of the three justices in the majority –Tipping, and Blanchard – have since retired from the bench, and lawyers who have followed the case say the judges who have, by their dissenting opinons, supported RTL’s arguments made some convincing points.

But of more importance than the specifics of this particular case is what it says about the parlous state of New Zealand’s abortion law. RTL’s action took aim at a fault line running through the abortion regime in New Zealand, and until the underlying tension between a liberal abortion practice and a conservative abortion law is resolved, there will be more cases, more challenges, more threats to abortion access and New Zealand will fall farther behind than it already has in providing timely abortion care. A 2010 study showed that compared to other developed countries, abortions are accessed much later in New Zealand, increasing the risk of complications. And though the study didn’t take aim at the law, the cumbersome approval procedures it demands are clearly the major factor in delaying access to abortion.

Those procedures also add hugely to the cost, with more than $4.5 million paid each year to the country’s 175 certifying consultants. This wasn’t a cheap case to fight either. RTL says it spent $119,000 on the action – it was represented by Peter McKenzie QC, Dr Ian Bassett and Rachael Wong – while, as of August 2011, the Crown had spent $390,000 in its defence. And that’s not counting the cost of the 16 judges who were involved in this case over its seven -year-plus lifespan, and all the court time.

Interestingly, less than two weeks before the Supreme Court made its ruling, the United Nations Committee on CEDAW (the Convention on the Elimination of All Forms of Discrimination Against Women) rapped New Zealand’s knuckles over its abortion law. In its concluding observations on our seventh periodic CEDAW report, the committee said it:

notes with concern … the convoluted abortion laws which require women to get certificates from two certified consultants before an abortion can be performed, thus making women dependent on the benevolent interpretation of a rule which nullifies their autonomy. The Committee is also concerned that abortion remains criminalized in [New Zealand], which leads women to seek illegal abortions, which are often unsafe.

The CEDAW committee went on to urge New Zealand to “review the abortion law and practice with a view to simplifying it and to ensure women’s autonomy to choose” and “prevent women from having to resort to unsafe abortions and remove punitive provisions imposed on women who undergo an abortion”.

Given the lack of action in the face of repeated calls for reform by Parliament’s own ASC, it’s clear that – as the Minister of Women’s Affairs Jo Goodhew told the UN Committee – there’s no “appetite” for change. And so we will continue to muddle along with an out-dated law that no one supports, that hinders best medical practice, and that remains vulnerable to ongoing judicial and administrative attack.