Abortion law in line for shake up

The Law Commission is currently reviewing New Zealand’s abortion law on a fast-track basis, at the behest of the Justice Minister, the Hon Andrew Little.

Mr Little wrote to the Commission recently asking for advice on reworking the law. The Minister indicated the Government wants abortion to be treated as a health issue, rather than a criminal one. The Government believes the sense of criminalisation in place around abortion should not be there, and that it made the law unfit for the 21st century. In his letter to the Commission, Mr Little asked it to advise on what changes could be made to the country’s legal framework to align it with that approach.

“Specifically, I expect the scope of the Law Commission’s advice to include reviewing the criminal aspects of abortion law, and the statutory grounds for an abortion and the process for receiving services,” he said.

The Minister said the Commission did not need to review the offence of killing an unborn child in specific circumstances.

“For example, where a pregnant woman is the subject of a violent assault and as a result loses the pregnancy. That is something that you do want the criminal law to sanction. But what we don’t want is women who are considering an abortion left thinking that they are committing a criminal act by doing so.”

For many years, abortion law reform has been off the political agenda, the polarising topic being considered too hot to handle by MPs of all political persuasions. For example, in 2010, Labour MP Steve Chadwick proposed a private members’ Bill decriminalising abortion, but it never got off the ground.

But, like it or not it, the issue reappeared on the radar earlier this year when the Abortion Supervisory Committee – the state institution that oversees abortion practices – told Parliament’s Justice Committee that the 41-year-old law was impractical and made the difficult lives of women seeking abortions even more difficult. The Committee said it had been years since it had seen any meaningful engagement from Parliament, including that it had been over three years since a minister had met with its members.

Chairwoman Professor Dame Linda Holloway said updating the law was a greater priority than decriminalisation. She said the number of abortions overall had declined, despite fears that more abortion clinics would lead to a rise in numbers. But she pointed out there was a disproportionately high number of abortions in Auckland City, mainly because of a lack of service options in South Auckland. Dame Linda said the Committee had asked the Counties-Manukau DHB to set up a service, but to no avail.

“The travel challenges for someone in South Auckland, with multiple small children or an absent or unsupportive partner, to travel to Epsom and back again is a bigger challenge than for someone from Ruatoria to get to Gisborne, because Ngati Porou has got things set up responsibly.”

She said the current law had language (such as “first certifying consultant”) that was so old that it had become ambiguous.

“If you are a doctor who’s been recruited from overseas to New Zealand and who is unfamiliar with this very difficult legislation, or a young medical student or doctor or lawyer, they worry about it. If in some way they misinterpret ambiguous legislation, they are putting their professional careers at risk.”

In 2016 (the latest year for which statistics are available), 12,823 women had an abortion, the lowest rate in more than 25 years. Most were aged between 20 and 24, accounting for 28 per cent of abortions. However, the abortion rate for women in this group dropped from a peak of 41 abortions per 1000 women in 2003, to 21 per 1000 in 2016.

During the same period, 252 “not justified abortion” certificates were issued, a number which has remained steady over the years. A “not justified” certificate does not necessarily indicate a denied abortion, as a third certifying doctor could declare that the abortion was justified.

Family Planning Chief Executive, Jackie Edmond, says the drop in abortions is partially due to the increase in women using long-acting reversible contraception (like IUDs), which were more effective. She also thought youth were getting good access to sexual education information and services, and choosing to wait longer before their first sexual experience, which helped reduce unwanted pregnancies.

The Auckland Women Lawyers’ Association (AWLA) welcomes the Law Commission’s review of New Zealand’s abortion law. Spokesperson Emma Smith told LawNews that the AWLA recognises this is an issue on which people hold sharply contrasting views, some very strongly, and that “some of our members may have personal views that differ from those expressed here”.

“However, the law that was passed in 1977 no longer reflects available medicine and does not reflect the attitudes of a large proportion of society – which is clear from the way it is being interpreted and the fact successive Parliaments have done nothing in response to reports that it was being interpreted in that way.”

Ms Smith says the current legal starting point is that procuring an abortion is a crime.

“Section 187A of the Crimes Act 1961 then provides specific exceptions, where to procure an abortion prior to 20 weeks’ gestation is not unlawful. The most well-known of these, and the ground under which most abortions are performed, is that continuing the pregnancy would result in serious danger to the life, or to the physical or mental health, of the pregnant person. Other exceptions are where the child (if born) would be seriously handicapped, where the pregnant woman or girl is ‘severely subnormal’, or where the pregnancy is the result of incest.”

Ms Smith says the law has its origins in a 1977 Royal Commission report, which took the view that it is “wrong, except for good reasons, to terminate unborn life”.

“The Abortion Supervisory Committee has consistently drawn Parliament’s attention to its concerns that the Act is operating more liberally in practice, expressing concerns that medical professionals are relying on the mental health ground more than they strictly should. It reported this numerous times in its annual reports to Parliament. No Parliament has yet done anything in response, which suggests (until now) a lack of appetite for reform. The Justice Minister’s interest in reviewing and potentially reforming the law is therefore very welcome.”

Ms Smith says, while the de facto position may be that women can access abortion on demand in many cases, that may not be the case for women who live outside main centres, who have access to only a very small number of health professionals.

“And it is certainly not desirable that women seeking abortions have to rely, effectively, on the discretion of medical professionals to interpret section 187A of the Crimes Act in a way that labels them as mentally unwell (or at least, highly likely to become so). We are also aware of some places in New Zealand declining to provide abortions up until the 20-week deadline, instead adopting their own timeframes that are shorter than provided for in the legislation. It is trite that laws should be drafted in a way that is clear and not open to arbitrary interpretation or discretion.”

Ms Smith says the legislation has also not kept pace with developments in medicine – perhaps unsurprising, given it has not been updated for several decades.

“The most frequently-cited example is medical abortions – whereas these were once undertaken only in very limited cases, early medical abortions are now available to pregnant women during the very early stages of pregnancy and involve taking two pills, usually on two separate occasions. The law provides that abortions can only be administered at a licensed clinic – meaning that the woman is required to attend a clinic to take a tablet that she could take at home or somewhere more convenient.

“This may not seem like any significant inconvenience to someone in, say, central Auckland, who can pop to a clinic in their lunch break, but it creates a logistical burden for women who are not located close to a clinic, and who may have other commitments (such as childcare). The current process of requiring two certifying consultants can also act as a barrier to women accessing this type of abortion, which is available only up to nine weeks.”

Ms Smith says the Justice Minister’s intention is to ask the Law Commission for advice on how abortions could be regulated in a way that treats them as medical processes, rather than a criminal issue.

“That would involve amendments to the Crimes Act as well as the CSAA [the Contraception, Sterilisation, and Abortion Act 1977], and particular care would need to be taken with drafting measures to regulate abortions from a health perspective. The advice of a specialist legislative research body is appropriate, therefore.

“In addition to the Law Commission, if the Minister’s intention is to make it easier for women to access abortions, any new regulations would need to consider practical access issues as well as high-level policy issues, and the input of practitioners and those who work with women, particularly in remote areas or areas where women have difficulty accessing abortion services, should also be sought and should be given meaningful consideration during the legislative process.”

The discussion continues in next week’s LawNews, with some differing views on the proposed reform of abortion law in New Zealand.

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