Cross-Examination: New Zealand’s Ancient Abortion Laws

BY HART REYNOLDS

It is time to reform New Zealand’s abortion laws. On 3 February 2017, the Abortion Supervisory Committee (ASC) added its voice to growing calls for review of the law.[1] The law was enacted in 1977 and states an abortion is only lawful if it meets one of the following criteria:

  1. The continuance of the pregnancy would result in serious danger to the physical or mental health of the woman.
  2. There a substantial risk the fetus would have mental or physical abnormalities
  3. The pregnancy is the result of incest.
  4. The woman is severely mentally subnormal.

These laws enacted 40 years ago no longer reflect public opinion, medical technology or actual medical practise. Doctors frequently find themselves bending the law to make it work in real life situations. When a law no longer adequately serves its purpose, it should be updated to reflect the changing needs of society.

The strict categories set out under the Crimes Act 1961 mean that 97.4% of abortions are granted for mental health reasons.[2] Sexual violation is not itself a ground for allowing an abortion, merely a factor to be considered when deciding a women’s mental or physical health. Other reasons, such as failed contraception or economic factors, are not included. In the United Kingdom, a woman can have an abortion if having another baby would be detrimental to the wellbeing of existing children.[3] Similar grounds are also included in Denmark,[4] Finland,[5] and France.[6] This ought to be considered as a ground in New Zealand, particularly given that 56% of women who had an abortion in 2014 were already mothers.[7] The limitations of the grounds in New Zealand law force many women to seek an abortion under mental health grounds, meaning that the law does not reflect the actual reasons why women request a termination of their pregnancy. In essence, it forces women to have to lie about why they have decided to have an abortion in order for their request to be approved. The law does not serve the interests of these women.

An apparent anomaly in current NZ legislation is that up to 20 weeks’ pregnancy women can have a termination for fetal abnormalities. But, after 20 weeks the only reason for approval is if the pregnancy is a threat to her life, or her physical or mental health. The presence of fetal abnormalities are not grounds for termination after this stage of pregnancy. This aspect of the legislation causes significant problems for doctors as many fetal abnormalities, such as complex cardiac abnormalities, lethal chromosomal abnormalities and developmental brain anomalies are not detected until 20 weeks or later.[8] An Auckland obstetrician specialising in high risk pregnancies identified this as major issue in the practical application of NZ law. In her experience, almost all terminations after 22 weeks are due to fetal abnormality, but because of this aspect of the law, it is difficult to gather complete statistics of the number of these abnormalities. While there is no doubt a woman’s mental wellbeing would be affected by the knowledge that her baby has severe abnormalities, the current law forces her to record only this as the reason for the abortion, to be unable to acknowledge the actual reason underpinning her psychological distress lacks compassion and is unnecessary. The law should be updated to account for the realities involved with the timing of diagnosis of fetal abnormalities to ensure that an arbitrary cut off of 20 weeks’ gestation does not define access to termination of pregnancy on the grounds of major fetal anomaly.

Another gap in the practical application of the law is there is no provision for emergency situations, such as where a

pregnant woman is admitted with life threatening infection due to pregnancy complications like ruptured membranes or chorioamnionitis. In these situations, a woman can die if the pregnancy is not immediately terminated, irrespective of the stage of pregnancy. Any delay causes the women to get sicker, runs the risk of septicaemia, organ failure and death. However, the law currently requires two certifying consultants to approve the termination, which can lead to significant delays in surgery in this emergency situation. This is particularly so in smaller hospitals, where there will often not be two certifying consultants on duty or available. The Auckland obstetrician referred to earlier identified “a sort of understanding with ASC that is not explicit in the law” whereby the approval can be done retrospectively or by phone in these situations. This represents a bending of the law to enable it to serve its purpose. The law should not have to stretched like this to save lives.

Current NZ law requires that two certifying consultants provide approval for a termination of pregnancy. Vocationally trained doctors in obstetrics and gynaecology do not automatically become certifying consultants but must apply to the ASC to become a certifying consultant. While this requirement has the benefit of protecting doctors from prosecution by ensuring immediate peer review of the decision, it does mean that abortion can be harder to access for women living in rural areas. Women will have to travel longer distances to see doctors to get approval, take more time off work or get someone to care for their family.[9] One consideration for law reform would make all vocationally trained doctors in obstetrics and gynaecology certified to approve an abortion. Such a move has been recommended by the International Planned Parenthood Federation and the World Health Organisation.[10] They advocate for the removal of bureaucratic barriers to enable women’s access to abortions under 12 weeks. Allowing greater numbers of doctors to have the authority to approve a termination would prevent the discrimination faced by rural women, and would also help in emergency life threatening situations to prevent delays in treating critically ill women. It could also shorten the waiting time for women seeking an abortion, which has been identified as the biggest shortcoming in our current system.[11]

A further important issue in the current certifying consultant rule is that the list of certifying consultants is publicly available. The anti-abortion group ‘Right to Life’ has a list with the names and practice addresses of every certifying consultant in NZ on their website.[12] While a list of certifying consultants helps women find a what they need it can be a deterrent for doctors who might otherwise become a certifying consultant, for fear of social disapproval or stigmatisation, particularly doctors living in small towns. While no doctor has been the target of violence yet in New Zealand, there are many cases of overseas doctors have been attacked and killed for their involvement in the abortion process. The lack of privacy in NZ puts doctors at risk and is another shortcoming of the present law to protect doctors and women.

The laws that govern abortions were enacted 40 years ago, and over time, technology and social attitudes have changed considerably. Abortion Law Reform Association of New Zealand (ALRANZ) argues that it is time to update our law to be more in line with the rest of the world and with technology.[13] When the laws were drafted, all abortions were carried out surgically and the ability to have a “medical abortion” did not exist. A medical abortion can be carried out up to nine weeks of pregnancy and requires that a woman take two pills to induce a miscarriage. Many women prefer this approach because they can be at home and they do not usually require surgery. A further aspect of the delay in getting approval from two certifying consultants means that for many women, approval is not granted prior to nine weeks so they miss the opportunity for a medical termination. The importance of terminations in early gestation has been reported many times, as it lessens the emotional impact on women and is associated with fewer complications.[14] However, New Zealand figures from 2014 report that only 56.7% of abortions were performed under 10 weeks gestation, compared to an 80% rate of early terminations in the United Kingdom.[15] A change in the law to make it easier to get approval would help decrease waiting times and would improve the health and well-being of women seeking an abortion

Under New Zealand law, a doctor who is morally opposed to abortion is under no duty to refer a woman seeking help to another doctor.[16] They only must inform the woman that they can access the service from another doctor or health practise.[17] The International Planned Parenthood Federation identifies this as a barrier to fair access to health services. It argues that doctors, while having the right to profess conscientious objection, should have a legal duty to refer women to another professional who will assist them.[18]  Such an approach should be considered in the reformed NZ abortion law.

The change in social attitudes over the last 40 years should be a further reason to reform New Zealand abortion laws. A 2017 poll of eligible New Zealand voters showed that a majority of New Zealanders support a woman’s right to choose abortion in every circumstance.[19] While there is small minority of New Zealanders opposed to abortion, we live in a democracy where the views of a small, albeit vocal minority should not trump the rights of the majority, especially when such views infringe the rights of women to safe and efficient medical treatment. There has been little evidence to that criminalising abortion stops terminations and on a global scale limiting access to abortions and forcing women to resort to unsafe, “back-street” abortions leads to major infection and bleeding and is the one of the major causes of maternal mortality, and morbidity.[20] Evidence repeatedly shows the best way to limit abortions is through sex education and improved access to contraception.[21]

Calls to reform abortion law frequently lead to people saying that the law is working fine enough, so why bother changing it? This may be true in part. Women in New Zealand can, for the most part, access abortion services safely and anonymously. However, this is not a reason for complacency or inaction. There are flaws in the current legislation and our laws could, and should, be updated. Any change must be carefully examined with wide discussion involving all relevant clinical specialists as well as consumer representatives – women themselves to ensure the new law is fit for purpose for the requirements of our contemporary NZ society.

Only the Green Party have called to decriminalise abortion in New Zealand.[22] Labour has not released an official policy on abortion, however, Andrew Little has supported a review of the law.[23] The National Party are unlikely to propose any changes or reform to the current law.[24] The issue highlights a disconnect between majority views and Prime Minister Bill English’s conservative voting history and stance on social issues. Act Party leader David Seymour has called for the current abortion laws to be modernised. Seymour criticised the Greens and Labour for chastising National for their inaction, while themselves lacking the political will to introduce a Members Bill reforming the law.[25]

It appears that the biggest reasons preventing reform of our abortion laws are complacent attitudes and a lack of political will from major parties. The barriers preventing women in New Zealand from more equitable access to safe and timely terminations of pregnancy under a law that reflects contemporary public opinion, medical practise and technology are easy to dismantle. Modernising the law should be seen not as a controversial but as a step in de-stigmatising a critical provision of universal, safe and just health care for women and developing a legal system that is responsive to the needs of contemporary NZ society.

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[1] Abortion Supervisory Committee Annual Report of the Abortion Supervisory Committee (2017) at 3.

[2] At 23.

[3] Abortion Act 1967 (UK) s 1(1)(a).

[4] The Law Library of Congress “Abortion Legislation in Europe: Comparative Summary” (2015) Global Legal Research Centre at 9.

[5] At 11.

[6] At 13.

[7] Abortion Law Reform Association of New Zealand “Fact Sheet on Abortion” (September 2015) <http://alranz.org>.

[8] Terry Bellmark “Abortion does not belong in the crimes act” Stuff (online ed, Auckland, 29 March 2017).

[9] Above n 8.

[10] International Planned Parenthood Federation “Legal Abortion: a comparative analysis of health regulations” (2009), at 166.

[11] Ashton et al “Improving termination of pregnancy services in New Zealand” 124 The New Zealand Medical Journal 83 at 88.

[12] Right to Life “Certifying Consultant List” (2009) <http://www.righttolife.org.nz/>

[13] Abortion Law Reform Association of New Zealand “Fact Sheet – the Law” (December 2011) <http://alranz.org>

[14] Above n 11, at 83.

[15] Above n 7.

[16] Hallagan v Medical Council of New Zealand HC Wellington CIV- 2010-485-222, 2 December 2010.

[17] Health Practitioners Competence Assurance Act 2003, s 174.

[18] Above n 9, at 174.

[19] Abortion Law Reform Association of New Zealand “Abortion Issues Poll – January 2017” (31 January 2017) <http://alranz.org >

[20] Lisa B Haddad “Unsafe Abortion: Unnecessary Maternal Mortality” (2009) Reviews in Obstetrics and Gynecology 122.

[21] Dr Gilda Sedgh “Abortion Incidence Between 1990 and 2014: Global, Regional and Subregional Levels and Trends” (2016) 388 The Lancet 258.

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

[23] Nicolas Jones “Abortion report to Parliament committee as Labour criticises Bill English’s ‘deep conservatism’” The New Zealand Herald (online ed, 13 March 2017).

[24] Stephanie Rodgers “In New Zealand, where abortion is still a crime” Overland (online ed, 19 April 2017).

[25] ACT Party New Zealand “Seymour Challenges Parliament on Abortion Law Reform” (press release, 14 March 2017).