Somewhere between one in three and one in four women in Aotearoa New Zealand will seek and have a legal abortion at some time in their life. A decade ago, there were almost 21 abortions per year per 1000 women of child bearing ages, but has been declining since. Last year it was 13 per 1000. Better education and contraceptives have seen a dramatic drop in teenage abortions while abortions in women in their twenties and thirties have risen slightly. Our abortion rates are not too different from countries in North America or western Europe, but unlike in the US, abortion here is a crime.
The law as it is now
The Crimes Act 1961 determines the grounds for an abortion under 20 weeks, which can be serious danger to life, any form of incest or sexual relations with a guardian, mental sub normality and foetal abnormality. Extremes of age and sexual violation can also be taken into account but aren’t grounds in themselves.
After 20 weeks gestation the grounds are different. Abortions can only be performed to save the life of the mother or to prevent serious permanent injury to the physical or mental health of the mother.
The law is an ass
Around 98% of abortions are perform on mental health grounds, and are essentially a means of getting around the current criminal nature of abortions. The Dunedin longitudinal study reveals that the most common reason given for having an abortion was not being ready, followed by relationship reasons, including being in the wrong relationship and being alone. In other words the law is an ass. The law should be either enforced or changed.
And here we differ markedly from the trend that we observe is going on in America. In early 2018, Andrew Little, the Minister of justice, asked the Law Commission to provide advice on what alternative approaches could be taken to ensure New Zealand’s abortion laws are consistent with treating abortion as a health issue.
Law Commission recommendations
Earlier this year, the Commission presented its ministerial briefing paper and offered three possible models:
- Under 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.
- Under 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.
- Under 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.
Regardless of which model may be preferred, the briefing paper sets out several other changes that could be made to align the law with a health approach to abortion. They include:
- Repealing the current grounds for abortion in the Crimes Act.
- Removing the requirement for abortions to be authorised by two specially appointed doctors called ‘certifying consultants’.
- 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.
The art of the possible
The legislation that is to be introduced into the parliament is essentially model C with all the suggested changes, but with the statutory test being at 20 weeks instead of 22. Andrew Little would have preferred model A, but politics is the art of the possible. It’s unlikely that a bill based on model A would be able to make its way through all stages of the process required to make it law. He’s indicated that the 20 week threshold was another of those compromises he needed to make to gain support from some members of parliament, notably members of the New Zealand First party. While the reforms might not be ideal, it’s certainly far better than keeping the status quo. As the Prime Minister Jacinda Ardern commented “Ultimately, it is about putting something to Parliament that has the strongest likelihood of succeeding. This issue should not be in the Crimes Act.”
Polls indicate that around 70% to 75% of the NZ adult population favour decriminalising abortion, but to what degree liberalisation should occur is less clear. However, as elsewhere, those opposing reform are by far the loudest. In this country opposition is not entirely along religious or gender lines.
Passage through parliament
If the bill passes its first reading it will be referred to a select committee, which can then take months to hear submissions from all interested parties, and you can be sure that on this topic there will be a great many submissions. It’s most likely the the select committee stage will be a prolonged affair, as more that the usual numbers supporters and opponents will wish to make vocal submissions as well as written ones. This can be expected on issues where emotions run high.
After the select committee process the bill then has to pass the second and third reading before being passed into law, and as the minister of justice admits, there’s no guarantee that this will happen. However, it’s very unlikely that he would introduce the legislation unless he believed there was a better than even chance that it would get through all stages. Time will tell if he is correct.