The Pain of an Abortion: It Can Take Years, Sometimes Decades! Stephanie Kitching
As a psychotherapist ministering at Catholic Social Services, I heard many different types of distressing or joyful stories over the years; stories of achievements, losses, addictions, relationships. You name it, I probably heard it. Of course, everything said in therapy remains entirely confidential, so details may not be shared.
One bunch of stories I heard were from women who had said ‘yes’ to abortion many years previously.
I do not remember any woman coming to therapy for this reason. Often, the presenting issue was depression, or loss, or relationship difficulties. Gradually, as trust grew in my relationship with the woman, she would begin to open up more freely until at last she could tell me she had had a pregnancy termination when she was younger. Then the tears would flow. I felt for her. I stayed with her emotionally and compassionately, for it was obvious to me that this was a cause of deep pain in her life and, in the words of Pope Francis, “Who am I to judge?”
I understand that not all women react in this way, but there are numerous women for whom, years later, that sense of sadness becomes too much to bear. Anniversaries, such as the expected date of a live birth, become calendar dates for her, dates that prompt her to recall that her child would be turning 10, 20 or 30 that day. Questions buzz in her mind, even though she felt certain at the time and had taken time to think through her options.
There are many reasons why a termination is considered, and many of them appear valid. As Catholics, we believe all life is sacred from its conception, but what I heard as a counsellor were accounts of how societal and personal pressure often came into play when a woman found herself with an unplanned pregnancy.
Frequently, too, she found herself with no one to turn to. If she wanted to explore her options, she was afraid of being condemned by those of us who believe in the value of life.
Just as I have worked with people who have had abortions, so too have I worked with people considering whether to have one. It is a delicate dance, for it takes into account two lives. I could only offer support as a decision was reached and then again in its aftermath, whatever the decision was. In my experience, when a woman feels pressured into an abortion against her natural inclinations or beliefs, the downstream effects are long-lasting and may even be severe.
Listening to women who regretted their decision has helped me understand the difficulty of an unplanned pregnancy. Yet, I continue to believe abortion is not the best answer. It is an answer, but not the best answer. The best outcome is a supportive community response that helps the woman during her nine months of carrying this child, followed by assistance after birth.
So, when these women courageously opened up about having ended the life of a child in their womb, what could I do? First of all, I listened. For many, this was the first time they had admitted it out loud to a person who was not around at the time of the event. I was someone recognised as a ‘Church’ person who could well condemn them, but whom they hoped would hear them. That I always tried to do. I prayed for them, although not aloud, unless they requested it, which some did.
In my prayers, I always asked our loving God to hold them and their child with loving care. After some time, when the emotion had calmed, sometimes weeks later, I would ask if they wanted to say goodbye to their child, to let the spirit of that child fly free and, if they believed in God, to know that their child was safe with God. I never received a negative reply.
We would then design a small service of thanksgiving and remembrance. We would go through their memories and find words, sometimes in poetry or another’s writing, sometimes in art or photography. I would put together a small brochure if that was what was asked for, and we would choose a place to reflect on the event using the brochure or the memories. Occasionally, this was in the therapy room, at other times outdoors. Some women chose to plant a tree or flower to show life was still present. It was a healing time.
I often wished I had been present when the earlier decision was being made so I could have offered pastoral support, both emotional and practical. Maybe then I would not have found myself face to face with their suffering years later.
One question I was always left with, but never explored unless the woman broached it first, was “Where was the father of the unborn? What did he think or feel about what happened?” This still sits with me.
Stephanie Kitching (rsm) ministered as a trained psychotherapist for 12 years, mainly in Wellington. She is currently the Congregation Archivist for Nga Whaea Atawhai o Aotearoa – Sisters of Mercy NZ.
Joint Written and Oral Submission to the Abortion Legislation Committee NZ Catholic Bishops Conference and The Nathaniel Centre
This article is an abridged version of the written and oral submission made to the Special Abortion Select Committee in September 2019. The full submission may be accessed at www.nathaniel.org.nz.
Key Concerns with the Proposed Legislation Changes
1) There are always at least two human lives at stake in an abortion. It is unacceptable that the proposed abortion law removes the current statutory requirement to consider the rights of the unborn child. The proposed Bill is in breach of our commitment to the UN Convention on the Rights of the Child.
2) It is unacceptable that the proposed Bill will enable abortions to occur without requiring any justification up to 20 weeks gestation, especially when a request might be the product of coercion. We wish to see the eligibility criteria for the current law retained for abortions up to 20 weeks.
3) It is unacceptable that the proposed Bill lowers the threshold for obtaining abortions after 20 weeks gestation. The proposed criteria for the statutory test are vague and open to broad interpretation and will legally allow abortions up to birth. Given that the wording of the statutory test virtually mirrors the current wording for eligibility up to 20 weeks, we believe that the proposed criteria will, in practice, lead to abortion on demand after 20 weeks.
4) We believe disabled unborn children will be more vulnerable under the proposed law. The current law explicitly prevents abortions on the basis of “fetal abnormality” after 20 weeks. That the proposed law does not do this is a major step backwards in terms of disability rights.
5) The proposed law will allow for abortions on the basis of gender discrimination up to 20 weeks, and arguably beyond that given the broad parameters of the statutory test for abortions after 20 weeks.
6) A woman of any age can self-refer under the proposed law, including pregnant teenagers. Under the current law, the process of requiring a doctor to refer, and two certifying consultants to sign off, provides layers of scrutiny and support for pregnant teenagers that will no longer exist. There are no safeguards in the proposed law to ensure that teenage mothers are not seeking an abortion because of abuse or coercion or a lack of awareness of other options.
7) The proposed law will not assist women to deal with the coercive realities that surround many abortions. We wish to see independent counselling built into the process of obtaining an abortion.
8) If the stated aim is to bring abortion more in line with other health services, then the proposed Bill is a step backwards because it will not promote informed consent. The existence of a robust process, including awareness of the risks and options other than abortion, is essential for protecting women’s choice.
9) As part of promoting informed consent, we would like to see a resource published that will provide balanced and objective information about the consequences of abortion, as well as knowledge of and access to the various financial, practical and emotional supports available.
10) The proposed Bill fails to adequately protect health practitioners’ rights to freedom of conscience.
11) There is no attempt in the proposed Bill to address the socio-economic coercive realities that lead women or couples to choose an abortion. Poverty should never be the reason for an abortion.
1) We welcome the opportunity to contribute to the debate about abortion law reform in New Zealand. Our arguments are informed not only by our religious tradition, but also by our pastoral and practical experience of caring for women who are pregnant and women who have had abortions.
2) We are opposed to the Abortion Legislation Bill for reasons outlined in this submission.
3) The Explanatory note of the proposed Abortion Legislation Bill claims that the intention of the Bill is to “better align the regulation of abortion services with other health services” and to “modernise the legal framework for abortion”. This suggests that the changes being considered are modest in nature. As we see it, however, the proposed new law heralds a significant and substantial change, ethically and legally, to the way the State views its duty towards the protection of unborn human life.
4) That change is readily identifiable in Part 1, Section 4 of the Bill which states that the Long Title of the Contraception, Sterilisation, and Abortion Act 1977 (CSA Act) is repealed. Critically, the significance and nature of this change becomes evident when considering that what is edited out are the words “after having full regard to the rights of the unborn child”.
5) Thus, while the present law acknowledges the tension between the needs of the woman and the rights of the fetus/unborn child and seeks to balance both, the proposed law obscures this tension by dissolving it from our statutes; there will no longer be any requirement to take into consideration the rights of the unborn child when decisions about abortions are being made. In effect, the proposed law effectively removes all legal protections for the unborn. There is nothing, for example, to proscribe abortions on the grounds of gender.
6) Ethically and legally, this change is inconsistent with Section 182 of the Crimes Act (“Killing unborn child”), which remains unchanged. It is inconsistent because, biologically and humanly speaking, the reality is the same in both situations – the death of an unborn child. What is deemed criminal in one context is framed as a ‘health’ issue in the other only by virtue of the subjective intentions of others.1
7) We are opposed to any changes that would either lessen or, as the proposed new law seeks to do, totally remove the (limited) rights the current law accords to the unborn child. The changes we advocate for (and which would not constitute a policy change) are those which would: (i) ensure continued consideration of the rights of the unborn child; (ii) promote the well-being of women, including better processes to detect coercion and ensure adequate informed consent; and (iii) address the socio-economic factors that can set in motion an abortion trajectory.
8) Along with the 65% of New Zealanders identified in the 2017 Curia Poll,2 we would like to see changes implemented that would further reduce the number of abortions occurring in New Zealand. The proposed Bill fails to consider how such changes could be made.
9) We believe it was seriously remiss of the Minister of Justice not to ask the Law Commission to carry out a full review of the abortion legislation, especially after he was reported as saying that this would first take place.3 An extensive and objective investigation by this independent, statutory body would have provided a solid and robust basis for a review of our abortion law reforms, something that is currently lacking.
Area of concern 1: Children need appropriate legal protection before as well as after birth
10) We will use the term “unborn child” throughout this submission, not only because this reflects what is for us a self-evident human reality, but because this is also the language used in the longer title of the CSA Act 1977, as well as in Section 182 of the Crimes Act 1961.
11) We understand and support the fact that under the current law there is no absolute ‘right’ to have an abortion in New Zealand. The proposed law will change this for women not more than 20 weeks pregnant. Because the statutory test for women more than 20 weeks pregnant is so weak as to make abortions in these situations a ‘right’ in all but name, we believe that the proposed law will, in practice, also allow abortion on demand after 20 weeks gestation, including viable babies (i.e. from 32 weeks to birth4 ). This is unacceptable to us and many others.5
12) We urge you to draft a law that acknowledges the tension between the rights of the mother and the rights of the child, as the current regulatory approach to abortion does. The proposed law, by focusing exclusively on an impoverished conceptualisation of a woman’s well-being, effectively obscures the fact that there is another human life at stake. In this regard, the present abortion laws, by virtue of the fact that they seek to balance the rights of the unborn child with the mother, are more honest and more ethical.
13) In every abortion a human life is at stake. Therefore, it is appropriate that abortions be subject to some sort of ‘test’ according to an agreed set of eligibility criteria. These criteria must consider the rights of the unborn child. The State fails in its fundamental obligation to protect human life, an obligation borne out in our common law tradition,6 if it does not apply some sort of criteria.
14) The alternative to this approach is State and societal acquiescence to the idea that a human life can be ended for any reason at all. This will clearly be the case under the proposed new abortion law for women not more than 20 weeks pregnant. The abortion laws of our country should require that substantial consideration be given to the humanity of the fetus as part of the process of weighing up an abortion decision.
15) Various international treaties and covenants support the notion that the State has an interest in the protection of the life of the unborn child, including the UN Convention on the Rights of the Child, which, in its Preamble states that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.7
16) We conclude that the proposed scrapping of any statutory test for women not more than 20 weeks pregnant amounts to an overt breach of New Zealand’s commitment to the ‘UN Convention on the Rights of the Child’ to which it is a signatory. In addition, we conclude that the nature of the statutory test proposed for women more than 20 weeks pregnant fails to meet the level of appropriate legal protection demanded for unborn children by the same UN Convention.
Area of concern 2: Promoting an intellectually honest and respectful discussion about abortion law reform that prioritises accurate information
17) We are concerned that some of the discussion about abortion law reform in New Zealand is characterised by deliberate obfuscation and confusion.
18) Firstly, we note that there are groups and individuals pushing for change who claim, incorrectly in our view, that the current law “criminalises” women. Section 183 of the Crimes Act 1961 specifically states that “a woman (or girl) shall not be charged as a party to an offence against this section”. The Explanatory note to the proposed Bill itself states that it is only unlawful abortions that are a criminal offence.
19) From a strictly legal perspective, it seems the only real effect of ‘decriminalising abortion’ is that it will take away the possibility of legal sanctions against Health Practitioners who fail to adhere to the necessary standards when performing an abortion.
20) Secondly, we note there are various commentators who claim that the current abortion regime forces women to “lie” because they have to “create fictions and rely on some issue of mental instability to get the help they need, and that is not okay.”8 We see this as a mis-representation of the Crimes Act. There, Section 187A states that an abortion is not unlawful in circumstances where the certifying consultants or abortion provider believe “that the continuance of the pregnancy would result in serious danger ... to the life, or to the physical or mental health, of the woman or girl ...” (emphasis ours). It is this stress of not being able to cope in the future that currently provides the legal grounds for certifying consultants to approve the abortion.9
21) Thirdly, we question the claim in the Explanatory note of the Abortion Legislation Bill that “[t]he changes will mean that abortion is, in general, provided like other health services.” Phrasing it this way infers that abortions in New Zealand are not already provided like other health services. It is clear that the current process is already a medically driven one, with health practitioners already subject to the range of legislation and regulations that govern the safe provision of all health services.
22) Consistent with what we have already argued above, we maintain that the “additional layers of legislative requirements” that characterise the current regime (Explanatory note), are appropriate for at least two reasons: (i) the “set of processes that no other person seeking a medical procedure has to go through”10 appropriately reflect the fact that abortion is distinctive from all other medical procedures because it involves ending another human life; (ii) as argued below, we primarily see the “additional layers” that are part of the current abortion regime as supporting both the principle and the process of free and informed consent which underpins all good medical care. Our view of these layers is that they provide a means into deeper discussions in which the woman concerned can genuinely explore her options. Therefore, we reject the idea that the additional layers that characterise the current abortion regime “are out of step with modern health law” (Explanatory note).
23) Fourthly, we challenge the veracity of comments made by the Justice Minister, Hon Andrew Little, that “claims that the Government’s planned reform of abortion laws unveiled today will allow abortions right up to birth are absurd and the sort of statement that gets made by ‘fanatic anti-abortion people’.”11 A number of doctors and lawyers have, independently, observed that abortions up to birth will not be legally prohibited under the proposed Bill.
24) Fifthly, we wish to see an honest recognition of the widely researched and documented risks associated with abortions coming through in this review of the proposed law. These risks, which include the negative emotional and spiritual consequences of abortions experienced by many women, are too often denied or minimised.12 There can be no fully informed consent to an abortion without a robust and standardised approach which objectively lays out all of the potential risks. To insist on this is to insist on what is routinely expected for all health interventions as spelled out in Right 6 of the Code of Health and Disability Services Consumers’ Rights.
25) In keeping with Right 6 (4), “Every consumer has the right to receive, on request, a written summary of information provided”, we would like to suggest that the Ministry of Health, in consultation and collaboration with a wide range of appropriately qualified interested parties, including those involved in the counselling of women post-abortion, produce materials that lay out, in a clear form, what is involved in an abortion, including the potential risks and consequences of an abortion as well as alternative options. Such a resource would be entirely in keeping with the proposed Bill’s stated aim to “better align the regulation of abortion services with other health services”.
Area of concern 3: Abortion is a significant moral issue and this should be reflected in the processes surrounding a request for an abortion
26) Because we believe that abortion is both a justice and a health issue, we believe that it is problematic to create a regulatory regime that frames abortion as if it is only a health issue, as the proposed Bill seeks to do. The proposed changes will deny many women the chance to manage the inescapable moral and ethical tension that lies at the heart of all abortion decisions – the tension between doing what they genuinely perceive is best for themselves or their family, while being simultaneously aware that their decision involves ending a human life. As the feminist writer Naomi Wolf has stated, women have a right to deal with abortion as the significant moral issue that it is:
I will maintain that we need to contextualise the fight to defend abortion rights within a moral framework that admits that the death of a foetus is a real death: that there are degrees of culpability, judgment and responsibility involved in the decision to abort a pregnancy.13
27) In a peer-reviewed qualitative exploration of women’s needs in clinical care during the process of having an abortion, one of the strong themes to emerge was that the women in the study wanted to be recognised as “grappling with a real-life moral decision”, something that only occurred “when medical personnel recognized this conflict and affirmed the decision as moral” in nature.14
28) At the same time, if we are to treat abortion as a health issue, then it deserves to be viewed through a healthcare lens. We argue that the true test of whether any law is in keeping with modern health law is the extent to which the process as a whole supports the concept of free and informed consent.
29) Within the health framework, free and informed consent, without which there can be no exercise of true autonomy, is facilitated by good processes and supportive, responsive and honest relationships. As an example, this is clearly illustrated in the carefully regulated practices that govern health research in this country; practices that are designed not as “onerous or bureaucratic”15 but for the purposes of protecting research participants. Significantly, the importance of such practices for abortion decisions has been flagged by the Abortion Supervisory Committee (ASC) in its 2017 Report to Parliament: “[T]he ASC recognises the merit in having a robust pathway in place, which requires certifying consultants to assess and certify patients and to ensure counselling is offered.”
30) The very real risk of coercion is yet another dimension which makes abortion distinctive from almost all other medical procedures. As Germaine Greer puts it:
What women ‘won’ was the ‘right’ to undergo invasive procedures in order to terminate unwanted pregnancies – unwanted not just by them but by their parents, their sexual partners, the governments who would not support mothers, the employers who would not employ mothers, the landlords who would not accept tenants with children, the schools that would not accept students with children.16
31) The reality of reproductive coercion in New Zealand has been highlighted by Women’s Refuge in a 2018 Report titled “Reproductive Coercion in Aotearoa New Zealand”:
Over one third of participants had experienced a partner trying to prevent them accessing an abortion, and just over one quarter had experienced a partner attempting to pressure them into terminating a pregnancy. Just under one third had also experienced a partner deliberately trying to cause them to miscarry, for example by using physical violence.17
The same Report makes it clear that the response of health professionals to reproductive coercion in a clinical setting is often seriously lacking.
32) We are concerned that there is no protection in the proposed Bill for a woman who is being coerced. If she presents herself as wanting an abortion then, regardless of the coercion behind that, the health practitioner concerned has no legal ability to deny the request.
33) Coercion and free choice are intrinsically opposed to each other. In this regard, we suggest that there is a fruitful analogy to be made with the well-developed consultation and counselling processes that surround the donation of organs, especially cases of live donation involving a family member or close friend. No-one argues that these processes are disrespectful to a person’s willingness or ability to make such a donation. Rather, the “additional layers” of requirements exist specifically in the service of promoting autonomy and real choice for the potential donor, as well as for the purposes of detecting and dealing with coercion.
34) The problem with the proposed Bill asking health practitioners to “advise women of the availability of counselling services if they are considering an abortion” (Explanatory note, emphasis ours) is that this way of framing sets counselling up as an optional activity. The assumption that counselling doesn’t make an essential contribution to the process of making a free and informed decision flies in the face of common sense, as well as good clinical practice. We believe that independent counselling by suitably qualified personnel is an essential step for any woman contemplating an abortion, especially given that many women will be genuinely undecided about what to do. We want to see counselling built into and presented as a part of a robust process of making what is a life-changing decision.18
35) The reason a woman contemplates having an abortion may well arise from a lack of awareness of the other potential options that exist. Just as a good surgeon would be expected to discuss non-surgical pathways as well as surgical pathways in the interests of informed consent, so women who are contemplating an abortion need to have an opportunity to explore the choice not to have an abortion as well. The option to keep the child should be a genuine choice for every mother.
36) Therefore, in keeping with the Minister of Justice’s stated aim of placing abortions “in a health framework where it properly belongs,”19 we conclude that the key changes being proposed in the Bill are, in fact, out of step with modern health law practice – out of step by virtue of the fact that they substantially weaken the processes for obtaining informed consent and detecting coercion. In this respect, we believe that the proposed law is a step backwards.
Area of concern 4: Conscientious objection
37) We understand that, under the current law, a registered medical practitioner is not required to refer the pregnant woman to another practitioner. We support this provision remaining. The proposed Bill goes too far in making it mandatory to tell a pregnant woman how she can access the contact details of an abortion provider. This requirement makes the practitioner complicit in the abortion process.
38) Allowing healthcare employers to consider whether a potential employee’s conscientious stance would affect an organisation’s ability to provide abortion services, effectively legitimises employee discrimination on the basis of conscience. This move, in a context where there is also a lower statutory threshold for abortions more than 20 weeks gestation and a weaker conscientious objection provision, potentially brings a new and unacceptable level of coercion into the employer-employee relationship; finding themselves in an impossibly difficult situation, employees with conscientious obligations and financial commitments to their own family may well feel they have no choice but to acquiesce to an employer’s demands.
39) It seems clear to us that the Minister of Justice anticipates the sort of dispute we allude to by virtue of the fact that the proposed Bill points out a pathway to remediation for employees forced to defend their right to employment.
40) The inherent dignity and worth of human life from conception means that the starting presumption should always be in favour of human life, whether born or unborn. It is appropriate that the unborn enjoy the same fundamental protections the Crimes Act provides for all other human beings. If the State is to continue providing abortions in certain situations, the law should only ever provide for abortion as an ‘exception’ to the fundamental right to life based on serious reasons.
41) There is much at stake in a review of the abortion laws; it is a deeply moral issue involving the future of a human life as well as the well-being of the woman and her family. The State has an essential responsibility to protect and care for all human life. It would abdicate this responsibility, captured in the UN Convention on the Rights of the Child, by creating an abortion regime in which statutory consideration of the rights and needs of the unborn child are excluded from the decision-making process.
1) As outlined in our written submission, Catholic teaching on abortion is premised on a belief that embryos and fetuses are entitled to be granted a place in the human family and to be treated with the same respect as persons, whatever their stage of development. This leads to the first of two points we want to emphasise; every pregnancy involves at least two lives – the mother and her unborn child – and therefore at least two sets of human rights. As the late Pā Henare Tate, Māori theologian and cultural commentator has written: “The tapu of the child is already intrinsic tapu. The child has its own tapu i a ia, its own existence, as opposed to that of another, even of its mother ... This is because in the womb the child already has its own identity. It also has its own identity within, and not just in relation to, whānau, hapū and iwi.”20
2) To hold that the fetus is not a ‘legal person’ ignores the fact that a genetically unique human life has begun which is neither that of the father or the mother. As Judge Sir John McGrath observed, in Harrild v Director of Proceedings (2003), a New Zealand case exploring whether ACC cover was available as a result of medical misadventure leading to the death of the fetus: “... the rule according legal rights only at birth is in modern times one founded on convenience. It does not rest on medical or moral principle.”21 A fundamental flaw of the proposed new legal regime is that there will no longer be any requirement to take into consideration the rights of the unborn child. This is biologically, humanly and ethically dishonest. The current abortion law rightly recognises that every abortion decision involves the resolution of a tension between the rights of the mother and the rights of the unborn child.
3) Ignoring the existence of the unborn child is not only inconsistent with maintaining Section 182 of the Crimes Act, but it denies women the right to deal with abortion as the significant moral issue that it is, a point well-made by the feminist writer and abortion supporter Naomi Woolf, whom we quote in our written submission. Both the law and the processes surrounding an abortion must allow those involved to grieve the loss involved. We do not serve women well by creating a legal narrative that abortion is only about the rights and choice of women. Every woman who chooses an abortion needs to know there is an emotional, spiritual and psychological space within which she can later deal with her decision, as required. That space is, in the first instance, either created or destroyed by the language we use, including the narrative generated by the law governing abortions.
4) To our second point. Looking at abortion as a health issue, one of the factors that distinguishes abortion from other medical procedures is the risk of coercion.22 Choices are always made in a context and shaped by that context – in many cases limited by our context. Abortion is not an acceptable societal response to financial poverty or to a lack of physical or emotional support. Neither is it an acceptable solution to partner pressure or sexual violence. Those women whose decision to have an abortion is made from a place of ‘no other choice’ are much more likely to experience negative emotional and psychological consequences.23
5) All of which underscores the importance of free and informed consent, without which there can be no exercise of true autonomy. Autonomy relies on good processes and supportive and honest relationships. The importance of such practices for abortion decisions has been flagged by the Abortion Supervisory Committee itself in its 2017 Report to Parliament: “[T]he ASC recognises the merit in having a robust pathway in place, which requires certifying consultants to assess and certify patients and to ensure counselling is offered.”24
6) So, while the Explanatory note of the proposed new law speaks of “additional layers of legislative requirements that are out of step with modern health law” as a problem, we are led to conclude the very opposite; precisely because of what is at stake, including the potential for negative consequences for the woman, it is entirely appropriate that the regulations surrounding abortion involve “additional layers” of requirements not attendant on other medical procedures. Indeed, we would go so far as to say that it is the proposed Bill that is more out of step with modern health law; out of step because it substantially weakens the processes for obtaining informed consent and detecting coercion, processes that lead us to recommend that every abortion should necessarily involve a counselling session by someone independent of the abortion provider.
7) Finally, we wish to reinforce to the Committee our concern that the proposed law will (i) allow abortions on the basis of gender (ii) in practice, enable late abortions ‘on demand’ because of an incredibly weak test and (iii) no longer explicitly prevent late abortions on the basis of “fetal abnormality”.
1 We understand that the reference to “unborn child” only occurs in the section heading which is technically not part of the Crimes Act, and that Section 182 (1) refers to “the death of a child that has not become a human being”. On this basis, many argue that there are no ‘human’ rights involved because the child has not yet got to the stage of being a ‘human’. Nevertheless, there is in Section 182 explicit recognition of there being a “child” involved, and the crime of killing a child is preserved. Further, because there is no mention of the mother (or any other person) being protected in Section 182, it is clearly correct to say that this section accords legal recognition to the unborn child – a recognition that brings with it certain rights that are: (i) separate from the rights of the mother; (ii) correctly described as being ‘human rights’; and (iii) appropriately dealt with under criminal law.
2 Curia Market Research. Abortion Poll, February 8 2018, https://www.curia. co.nz/2018/02/abortion-poll-2/, accessed 3 September 2019.
3 See Craig McCulloch, “No abortion changes until ‘well into next year’”, 2 November 2017, accessed 29 August 2019: https://www.radionz.co.nz/ news/political/342899/no-abortion-changes-until-well-into-next-year.
4 While babies can be kept alive from at least 24 weeks on, it is generally accepted that, from 32 weeks on, babies have a good chance of surviving independently outside the womb.
5 The proposed grounds for a post-20 week abortion are essentially the same eligibility criteria currently applied for pregnancies up to 20 weeks. Commenting on the current criteria, Dr Christine Forster, former chair of the Abortion Supervisory Committee has said: “We do essentially have abortion on demand or request, however you like to put it.” Reported in the Sunday Star Times, 5 Nov 2000.
6 The proposed law would repeal over 800 years of legal protection of the unborn child in English common law, a system that our own legal framework is based on.
7 See https://www.ohchr.org/en/professionalinterest/pages/crc.aspx, Preamble, accessed 3 September 2019.
8 For example, Hon Amy Adams in her speech to the House during the first reading of the Abortion Legislation Bill: “I agree with the Minister and the Attorney-General when they said women currently are put into the position of having to lie and create fictions and rely on some issue of mental instability to get the help they need, and that is not okay.” Similarly, Hon Paula Bennett: “... we should not be telling them that they have to lie to the medical practitioner that they’re in front of so that they can get the medical help that they want.” See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/ HansDeb_20190808_20190808_12.
9 It might be, and has been, argued that the provisions in Section 187A are being interpreted by consultants in a much wider way than was the original intention of parliament in 1977 when it first passed the CSA Bill. We regard that as a separate discussion. Further to our point, we note that the wording of the statutory test for abortions post 20 weeks in the proposed Bill adopts terminology that is very similar to the ‘problematic’ terminology used in the current law. If the eligibility criteria are a problem in the current law, then why are similar criteria not a problem in the proposed law?
10 Hon Andrew Little introducing the Abortion Legislation Bill into the House (8 August 2019). See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/HansDeb_20190808_20190808_12, accessed 3 September 2019.
11 As reported by TVNZ: https://www.tvnz.co.nz/one-news/new-zealand/ andrew-little-says-claims-reforms-allowabortion-up-birth-absurd-v1, accessed 30 August 2019.
12 As Dr Christine Forster, former Chairwoman of the New Zealand Supervisory Committee has previously stated: “Every woman I have seen who has had a termination has a difficult time subsequently. They have a grief process and sorting out time to go through. It certainly doesn’t leave them unmarked and I have never met a woman who has had one who would want to go through it again of her own free will.” Quoted by Dr Michael McCabe, Editorial: Anniversaries, The Nathaniel Report, Issue 11, November 2003.
13 “Naomi Wolf on Abortion: ‘Our Bodies, Our Souls’”. New Statesman, 27 January 2013 http://www.newstatesman.com/politics/politics/2013/01/ naomi-wolf-abortion-our-bodies-our-souls, accessed 3 September 2019.
14 Altshuler, A. L., Ojanen-Goldsmith, A., Blumenthal, P. D., & Freedman, L. R. (2017). A good abortion experience: A qualitative exploration of women’s needs and preferences in clinical care. Social Science & Medicine, 191, 109- 116.
15 Hon Andrew Little introducing the Abortion Legislation Bill into the House (8 August 2019). See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/HansDeb_20190808_20190808_12, accessed 3 September 2019.
16 Greer, Germaine. The Whole Woman. Black Swan. London. 2011.
17 See https://womensrefuge.org.nz/wp-content/uploads/2018/10/ Reproductive-Coercion-Report.pdf, accessed 3 September 2019.
18 A good model for promoting autonomy and informed consent is provided by Capital Coast District Health which has built “counselling” into the process of applying for an abortion. As stated on their website: “Counselling is a[n] essential part of the process ... As well as offering counselling they will also explain the process and options available to you. The counsellor is also available to you after you have been through the termination.” See https://abortion.org.nz/providers/capitalcoast/ wellington-hospital. And, in another part of the website explaining what will happen: “... you will see a counsellor to discuss your decision, review procedures and provide contraceptive education and planning. You will then see a doctor for a medical assessment, examination and certification.” See https://www.healthpoint.co.nz/public/obstetricandgynaecology/capital-coast-dhb-termination-of-pregnancy/, accessed 3 September 2019.
19 Hon Andrew Little introducing the Abortion Legislation Bill into the House (8 August 2019). See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/HansDeb_20190808_20190808_12, accessed 3 September 2019.
20 2012, He Puna Iti I te Ao Mārama: A Little Spring in the World of Light. Auckland: Libro International.
21 See Harrild v Director of Proceedings –  3 NZLR 289 available at http://www.lawreports.nz/harrild-v-director-of-proceedings-2003-3- nzlr-289/.
22 See for example https://womensrefuge.org.nz/wp-content/ uploads/2018/10/Reproductive-Coercion-Report.pdf, accessed 3 September 2019.
23 Törnbom, M., Ingelhammar, E., Lilja, H., Svanberg, B. & Möller, A. (1999) Decision-making about unwanted pregnancy. Acta Obstetricia et Gynecologica Scandinavica 78:636-641; Kirkman, M., Rosenthal, D., Mallett, S., Rowe, H. & Hardiman, A. (2010) Reasons women give for contemplating or undergoing abortion: a qualitative investigation in Victoria, Australia. Sexual and Reproductive Healthcare 1:149-155; Söderberg, H., Janzon, L. & Sjöberg, N.O. (1998) Emotional distress following induced abortion. A study of its incidence and determinants among abortees in Malmö, Sweden. European Journal of Obstetrics & Gynecology and Reproductive Biology 79:173-8; Korenromp, M.J., Christiaens, G.C., van den Bout, J., Mulder, E.J., Hunfeld, J.A., Bilardo, C.M., Offermans, J.P. & Visser, G.H. (2005) Long-term psychological consequences of pregnancy termination for fetal abnormality: a cross-sectional study. Prenatal Diagnosis 25:253-260.
24 See Report of the Abortion Supervisory Committee 2017, available at https://www.justice.govt.nz/assets/Documents/Publications/ASC-AnnualReport-2017.pdf, accessed 3 September 2019.
New Zealand Abortion Law to be “modernised so it is treated as a health issue” [Synopsis]
On the 8th August, a new Abortion Legislation Bill passed its first reading in Parliament and was referred to a specially constituted Select Committee. The legislative process now includes an opportunity for the public of New Zealand to give feedback on the proposed new abortion regime by 19th September. In this article New Zealand Abortion Law to be “modernised so it is treated as a health issue”, the Nathaniel Centre offers material to stimulate compassionate thought and dialogue about abortion.
The full article is available by subscription to The Nathaniel Report
The Gift of Poetry and Down Syndrome [SYNOPSIS ONLY]
In this article, Andrew Hamilton challenges the depiction of Down syndrome as pitiable and as a burden on parents and society that is best resolved via an early termination of pregnancy: instead, it is a gift to be cherished. Thousands of people witnessed the delight of Stevie Payne, who has Down syndrome, when his sister, Michelle, won the 2015 Melbourne Cup.
The full article is available by subscription to The Nathaniel Report
I am Pro-Life. Don’t Call me Anti-Abortion [SYNOPSIS ONLY]
In this candid article, Charles Camosy elucidates how the struggle in the abortion debate is a struggle over language. He challenges the use of language that allows critics to dismiss pro-lifers as single-issue obsessives, while highlighting the ways in which language is employed to hide the dignity of the vulnerable. Our ‘throwaway culture’ has infected our attitude toward marginalized populations such that some use terms like ‘sub-humans’, ‘defective humans’, and ‘parasites’.
The full article is available by subscription to The Nathaniel Report
Law Commission Recommendations
In October 2018, the Law Commission reported back to the Minister of Justice, responding to a request for advice on what alternative legal approaches could be taken in the event the Government decided to propose a policy shift to treat abortion as a health issue.
The Law Commission has set out three alternative legal models that could be adopted if abortion is to be treated as a health issue: Under Model A there would be no statutory test that would need to be satisfied before an abortion could be performed – the decision whether to have an abortion would be made by a woman in consultation with her health practitioner; under Model B, a statutory test would need to be satisfied before any abortion could be performed – a health practitioner who intended to perform the abortion would have to reasonably believe the abortion was appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing; under Model C, for pregnancies of not more than 22 weeks gestation, it would be the same as Model A; and for pregnancies of more than 22 weeks gestation, same as Model B.
Some corollaries of the law change and other comments by the Commission:
Model A contemplates no specific abortion legislation and would therefore involve repealing the abortion provisions in the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977.
Models B and C would retain a specific statutory regime for abortion, although both would be significantly simpler than the current regime.
There would be two changes to the law that would be required under all of the three models: the current grounds for abortion in the Crimes Act would be repealed and the requirement for abortions to be authorised by two certifying consultants would be repealed.
The Commission has proposed either repealing the criminal offences for abortion or amending them so that they only apply to unqualified people who perform abortions.
The Commission considers that the current law and guidance surrounding informed consent for health procedures would be sufficient for the purposes of regulating abortions.
The Commission has suggested that counselling should not be mandatory for women seeking abortion, although it should remain available to women who want it.
While not suggesting removing the current conscientious objection rights of health practitioners, the Commission suggested that the Government consider changing the law to ensure that conscientious objection does not unduly delay women’s access to abortion services.
The Commission recommends that Health Practitioners with an objection be required to actively refer a woman seeking an abortion to someone who can provide the service. (This represents a significant departure from current legal approach to allow doctors to exercise their freedom of conscience.)
The Commission acknowledges a concern that if abortion becomes more easily accessible, it might be used for reasons related to the sex of the fetus or fetal impairment, and that this may warrant further consideration.
The Crimes Act contains a provision that makes it an offence to kill an unborn child, an offence not aimed at abortion, but rather at the killing of children during birth or through assaults on pregnant women. The Commission suggested that as the wording of the offence is wide enough to cover abortions performed at later gestations, the Government may wish to consider amending the provision to ensure it is consistent with the Government’s preferred policy approach to abortion.
The Law Commission Report raises a number of serious concerns that include the following:
In the submission to the Law Commission made by the NZCBC and The Nathaniel Centre, we noted that the current law, as set out in the Contraception, Sterilisation, and Abortion (CS&A) Act 1977 and the Crimes Act 1961, upholds a ‘tension’ between the needs and desires of the woman and the rights of the foetus/unborn child and seeks to balance both. The different Models, all of which start with the premise that abortion is a health procedure, uphold this tension to different degrees, with Model A arguably removing the tension in all cases and Model C removing the tension for all abortions performed before 22 weeks, that is, more than 99% of all abortions (ASC Report 2017).
In the health approach being presented, there is nothing acknowledging that there are at least two human lives involved in every abortion. As noted in our submission, most women understand that an abortion, whatever the reason they are contemplating it, has significant moral implications. Creating an altered legal regime that frames abortion as being solely about the well-being of the mother potentially undermines a women’s sense that abortion is a serious moral issue and, consequently, their moral agency.
Because all three of the proposed models frame abortion as a matter solely between a woman and her doctor, there is nothing to prevent the ‘inappropriate’ use of abortion for sex-selection or for reasons of impairment. The Law Commission suggests this ‘may warrant further consideration by the Government’, a view with which we concur.