Cross-Examination: Abortion Law Reform in New Zealand

The Equal Justice Project is a strictly apolitical organisation. We are committed to giving equal expression to, and providing fair critique of, all ideologies and viewpoints. Accordingly, in preparing this article we contacted all parliamentary parties, ALRANZ, Family First New Zealand, Pro-Life New Zealand, and the University of Auckland Campus Feminist Collective for comment; believing these groups to represent, between them, a wide range of opinion on the issue of abortion law reform. At the time of publication, we had only received substantive correspondence from Green MP Jan Logie and ALRANZ. If you feel that we have failed to adequately consider a particular viewpoint, the inclusion of which would enrich our discussion of abortion law reform, please contact comms@equaljusticeproject.co.nz.

Rebecca Hallas, Contributor

The New Zealand Crimes Act 1961 states that an abortion is unlawful unless it meets one or more of the following propositions:[1]

  1. the continuance of the pregnancy will be fatal or;
  2. the continuance of the pregnancy poses a serious risk of physical or mental harm to the pregnant person or;
  3. the pregnancy is the result of incest or;
  4. foetal abnormality

As a result, elective abortions are generally made through the mental harm category; annual figures show that 98% of abortions fall under that category.[2]

Consequently, category of mental harm has been a focal point for a vigorous debate in New Zealand between interested parties. Right to Life New Zealand, a pro-life organisation, began court proceedings several years ago. They claimed that too many abortions were being classified under mental health grounds.[3] The Abortion Law Reform Association of New Zealand (ALRANZ) responded positively, stating that they were glad “the clinics and doctors and women of this country have managed to adapt such an outdated, cumbersome law”.[4] Green Party MP Marama Davidson also commented that dishonesty is forced on those who wish to abort due to our legislation.[5]

There has been a tentative attempt to change the current law. The Green Party caused quite a stir when they proposed amendments to the current abortion legislation during the 2014 election. The amendments would have made elective abortions preceding the 20 week mark legal.[6] No change would have been made to the current law governing abortions after five months; the law makes an abortion available only if the pregnant person is at risk of serious permanent injury, or if continuing the pregnancy would be fatal.[7] The Green Party further stated that the purpose of these amendments was to redress the inadequacies of the current legislation: “Decriminalisation will… enable abortions to be performed earlier in pregnancy, which is safer for women”.[8]

As it stands, the abortion process is long and requires a series of tests. As far back as 2011, the President of ALRANZ, Morgan Healey, stated that many New Zealanders continue to be unaware of any legislative barriers to abortion, believing it to be a completely legal procedure.[9] In contrast to this common perception, the law requires the woman to undergo two ultrasounds, one or two blood tests, as well as a referral from one’s GP to two other consultants, declaration by oneself as to being mentally unfit to have a child, agreement of consultants as to mental unfitness, a half-day examination and, ultimately, undergoing another half day procedure to effect the abortion itself.[10] One woman waited weeks between the initial blood tests and ultrasounds, before finally being instructed to visit the consultants who would determine whether she was allowed an abortion:[11]

“Once the first flurry of appointments was over, I waited. I waited for three or four weeks without knowing why, and no one would tell me anything… I had no idea what was going on, or if I would be turned down.”

As outlined above, the time taken to prepare for an abortion (in order to meet the current legal requirements) can be incredibly stressful. It also arguably infringes on rights to quality medical care, as abortions are safest when done as early as possible.[12]

The existing legislation is also problematic as it is often discriminatory to those of lower socio-economic backgrounds. It requires time off work that can be difficult to procure and is financially detrimental, especially with rising levels of income inequality and poverty.[13] While the procedure itself is free for New Zealand citizens in the public health system, the costs of the ultrasounds, additional appointment charges,and loss of income due to time off work are financial hardships that those seeking an abortion have to bear. Therefore, the requirement that one must see two consultants to meet the “mental harm” threshold adds to a list of potentially costly appointments, and thus puts an even heavier burden on individual form lower socio-economic backgrounds.

In addition to these financial constraints, those in rural areas who have to travel long distances to access abortion services are also disadvantaged. A recent report by ALRANZ found that more than one in six New Zealand women have to travel long distances (between 116 km and 1130 km per return trip) in order to access a first trimester abortion.[14] ALRANZ also found that Maori women are especially susceptible to having to travel these long distances as they make up a larger proportion of those living in rural areas.[15] Therefore, as a group, they are significantly disadvantaged when attempting to access abortion services.

Despite these difficulties, the current government appears unlikely to undertake reform on abortion law. Prime Minister John Key stated he was “in favour of women having the right to choose”, concluding that “the current system [is] fine”.[16] Conversely, individual Labour MPs, including Andrew Little, have expressed a desire for more liberal abortion laws.[17] To date, however, the Labour Party does not have a clear policy stance on the issue. The reluctance of political parties to support the decriminalisation of abortion possibly stems from a fear of public backlash, especially from New Zealand pro-life organizations. The reaction the Green party received upon announcing their abortion policy most likely only confirmed these concerns.

It is an uncomfortable truth that this divisive issue can inspire the public to act as both judge and jury, criticizing the various reasons people choose to abort, and critiquing whether the person in question was “deserving” enough of the procedure. This was shown in the response following the Green party’s abortion policy announcement. Opposing opinion letters appeared in the New Zealand Herald and on the Greens’ Facebook page, arguing and outlining what they considered would constitute acceptable or unacceptable circumstances for an abortion.[18] Factors such as sexual history, previous abortions (if any), and in cases of rape, victim-blaming, are all issues that can arise when discussing ‘legitimate’ or ‘illegitimate’ abortions. In a New York Times article, Merritt Tierce discussed this phenomenon of the shame surrounding women who have had abortions: “Do we approve of what she wanted? Did she suffer enough? These questions are not ours to ask. We have to stop categorizing abortions as justified or unjustified”.[19]

Despite current legislation (and some judgemental attitudes), New Zealanders can access abortion services in proscribed circumstances. However, the legal requirements that must be met make an already difficult process even more complicated. A transformation of the existing law is essential to ensuring an honest and equitable legal system. The controversy lies in what changes should be made. Should we: introduce stricter legislation and simply ban any opportunity for elective abortions altogether, or introduce more exceptions such as allowing the procedure on the basis on socio-economic circumstances, or adopt the Green party’s policy and decriminalise it entirely?

The indisputable reality is that abortion has existed as a medical procedure for centuries and even when criminalized, people will go to extremes to abort. This often has tragic consequences, with harm done to both mother and foetus. Sometimes this will result in the death of both.[20] Writer Frederica Mathewes-Green famously summed up this desperation:[21]

“No one wants an abortion as she wants an ice-cream cone or a Porsche. She wants an abortion as an animal, caught in a trap, wants to gnaw off its own leg”

If people will continue to attempt to abort unwanted pregnancies, and if unwanted pregnancies (in spite of precautions) will continue to occur, then the argument for efficient, legal abortions is compelling. Legalising elective abortions, and shifting the focus toward reducing unwanted pregnancies, could be beneficial for those seeking abortions and New Zealand as a whole.

Pro-life groups would undoubtedly be dissatisfied with the notion of decriminalising abortion. However, removing legal barriers to abortion does not necessarily mean that there would be a corresponding spike in abortion rates. Statistics found by the Guttmacher Institute demonstrate that there are countries where abortion is completely legal have some of the lowest abortion rates in the world.[22] Furthermore, chief executive of Family Planning, Jackie Edmond, has stated that there is no evidence to suggest that abortion would be treated as a form of contraception, should it be decriminalised.[23]

In addition, spending time debating the morality of abortion shrouds the deeper issues at hand. Rather than introducing more stringent legislation, an effective way of reducing the number of abortions (currently averaging at around 15,000 annually) would be to acknowledge and address the social problems that drive demand for them.[24] Abortion is not a problem that appears out of nowhere; it has been proven to be a symptom of deeper societal ills such as poverty, sexual assault, poor sex education, lack of access to contraceptives, and domestic violence.[25] Some of these problems are deeply rooted within New Zealand society, all of which lead to an increase in unwanted pregnancies, and consequently, demand for abortion.

A serious overhaul of sex education in schools would be an effective start, as the amount of teenagers having abortions in New Zealand is already high, and is gradually climbing.[26] Stricter regulations ensuring sex education is thorough and comprehensive could be beneficial, especially with regards to religious schools, which have a tendency to push an abstinence perspective that has been proven to fail in preventing teenage sex.[27] Although the latter could be controversial, separating religion from the state is arguably necessary when dealing with issues like teenage pregnancy. Additionally, increased funding for organisations such as Family Planning could fund complementary public workshops discussing proper sex education, consent, healthy relationships, and the provision of resources to those who need it most. Lobbying for policies aimed at decreasing income inequality and poverty, and assisting charities such as Red Cross and the Child Poverty Action Group, could also be useful. The prospect of addressing such mammoth social issues appears overwhelming, but we must start somewhere if we are to lower abortion rates in New Zealand.

Abortion is a complex philosophical issue, and understandably triggers strong emotional responses in people. However, regardless of one’s perspective on the legality of it, there is a serious need to treat it for what it is: a symptom of deeper problems. The all too common practice of isolating it and viewing it in a vacuum, devoid of societal context, is inefficient in addressing the real causes of a demand for abortion.

[1] “Crimes Act 1961” Abortion Services in New Zealand <http://abortion.org.nz>.

[2] “The Law Around Abortion” Family Planning <http://www.familyplanning.org.nz>.

[3] “Abortion Supervisory Committee v Right to Life New Zealand Inc” Abortion Law Reform Association of New Zealand <http://www.alranz.org>.

[4] Alison McCulloch “Appeal court can’t fix fundamentally flawed abortion law” Abortion Law Reform Association of New Zealand <http://www.alranz.org>.

[5] Marama Davidson “Marama Davidson: For lent, give up judgment” The New Zealand Herald (online ed, New Zealand, 30 March 2014).

[6] Jan Logie “Green Party to decriminalise abortion” (6 June 2014) Green Party of Aotearoa New Zealand <https://home.greens.org.nz>.

[7] Ibid.

[8] Ibid.

[9] Sarah Dunn “People unaware abortion still has legal barriers” (2 November 2011) Newswire <http://www.newswire.co.nz>.

[10] “What is Abortion?” Family Planning <http://www.familyplanning.org.nz>.

[11] “Abortion Stores: Sarah” (20 November 2013) The Wireless <http://thewireless.co.nz>.

[12] “Abortion – What You Need to Know” (2014) Family Planning <http://www.familyplanning.org.nz>.

[13] Paul Barber “How to Get Closer Together: Impacts of Income Inequality and Policy Responses” (2011) 7 Policy Quarterly 62.

[14] Martha Silva and Rob McNeill “Geographical access to termination of pregnancy services in New Zealand” (2008) 32 Australian and New Zealand Journal of Public Health 519.

[15] Ibid.

[16] Lawrence Smith “Is abortion law due for a shakeup?” Sunday Star Times (Online ed, Auckland, 15 June 2014).

[17] Admin “Labour Leaders Open to Extreme Abortion Laws” (12 November 2014) Family First New Zealand <https://www.familyfirst.org.nz>.

[18] Narelle Henson “The Green Party’s announcement on abortion sends signals” Waikato Times (online ed, Waikato, 16 June 2014); “Last Friday we released our policy on abortion” The Green Party of Aotearoa New Zealand <https://www.facebook.com/nzgreenparty>.

[19] Merritt Tierce “This Is What an Abortion Looks Like” The New York Times (online ed, New York, 12 September 2014).

[20] Cicely Marston and John Cleland “Relationships Between Contraception and Abortion: A Review of the Evidence” (2003) 29 International Family Planning Perspectives 6.

[21] Frederica Mathewes-Green “Seeking Abortion’s Middle Ground” (28 July 1996) Frederica.Com .

[22] Marston and Cleland, above n 20.

[23] “Greens want to decriminalise abortion” (6 June 2014) Radio NZ .

[24] “Abortion Statistics: Year ended December 2013” (18 June 2014) Statistics New Zealand .

[25] Akinrinola Bankole, Susheela Singh and Taylor Haas “Reasons Why Women Have Induced Abortions: Evidence from 27 Countries” (1998) 24 International Family Planning Perspectives 117.

[26] “Abortion trends in New Zealand 1980 – 2007” (January 2010) Statistics New Zealand .

[27] “Top Five Reasons to Abandon Abstinence-Only-Until-Marriage Programs” Advocates for Youth .

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