Abortion Trauma, Grief and Healing
It is argued by some that the politics surrounding abortion have contributed to the lack of consensus in in the literature regarding post-abortion experiences, in particular whether some women’s subsequent mental health struggles were connected to other factors in their lives rather than their experience of having an abortion (see Dawn de Witt, Issue 51 of The Nathaniel Report).
One of the risks of denying post-abortion trauma is that it can add to the shame and stigma women might already experience and it can leave them with unacknowledged grief, a grief they may be told or may feel, is unreal. “At present health professionals are not being trained to diagnose, treat or prevent abortion trauma, and are generally reluctant to investigate when problems arise subsequent to an abortion, offering at best, symptomatic treatment (or worse, further traumatizing and isolating the sufferer). Therapists who are concerned about abortion trauma, not unreasonably fear being professionally attacked or isolated (particularly from those with a ‘personal investment’ in the safety of abortion) if they speak publicly or professionally of their concerns. Consequently, most women and men traumatised by abortion, have no access to the professional help they need”.1 Moreover, as pointed out in the same article “abortion referral agencies and institutions, because of their role in facilitating denial and dehumanising the unborn, have a conflict of interest, and are inappropriate venues for abortion grief therapy”.
Many women are at risk of experiencing long-term emotional, spiritual, psychological, and relationship difficulties post-abortion but the lack of recognition of these experiences means they are unable to access the support they need.
Some agencies that specialise in providing support are listed below.
- “Post Abortion Syndrome. The Silent Suffering” available at: https://www.abortiongrief.asn.au/abortion-trauma.php
Project Rachel is a confidential ministry for anyone who desires healing after being impacted by abortion. This includes the mothers and fathers of children lost to abortion, grandparents and other relatives, health care providers, and many others. Abortion crosses all boundaries of religion, race, age and socio-economic position.
Project Rachel's mission is to provide a confidential and compassionate ministry that offers resources for spiritual, emotional, and psychological healing to anyone who has been impacted by abortion regardless of faith background. We strive to convey God's forgiveness and mercy in order to restore and empower lives.
0800 111 811 (free call)
or text/call: 027 299 9815
Practical support and advice to prepare for parenthood te tautoko me te tohutohu awhina mō te mātuatanga.
PO Box 12000
P.A.T.H.S. Post Abortion Trauma Healing Service
0800 728 470
Pregnancy Counselling Services
0800 773 462
Text: 021 289 8727
Editorial - Allowing Grace to Catch Up
At the 2015 Synod on the Family held in Rome, there was considerable reflection on the moral principle of gradualism, a principle whose roots lie in the thinking and writing of Blessed Paul VI and which has been further developed by Saint John Paul II in Familiaris Consortio (nn. 9 & 34) and Pope Francis in Amoris Laetitia (nn. 295 & 300).
Simply put, people grow in different ways and at different times on their faith journey – and that is just as true for each community as it is for each person. The personal and pastoral challenge for each of us is living with that reality; living with ourselves and living with it in our relationships, our families, our faith communities and society.
The key moral question is how to retain compassion and charity towards those who think and act differently to us? Do we run away? Do we seek out a like-minded group? While flight is necessary for our soul’s growth at times, it does not always lead to growth, compassion, better understanding or wisdom simply because we may be avoiding a deeper issue.
The Gospel passage about the two sons, Matthew 21:23-32, provides a picture of gradual growth:
‘What do you think? A man had two sons; he went to the first and said, ‘Son, go and work in the vineyard today.’ He answered, ‘I will not’; but later he changed his mind and went. The father went to the second and said the same; and he answered, ‘I will go, sir’; but he did not go. Which of the two did the will of his father?’ They answered, ‘The first.’
In his commentary on this Gospel passage, Father Michael Hayes, tells the story of a Catholic High School teacher who was running into difficulty presenting the Catholic position on abortion to her class. The students seemed to be rejecting the viewpoint that she was presenting, so she asked the school’s guidance counsellor for help. He began his presentation to the students by saying how difficult the practical decisions surrounding abortion can be. The counsellor also spoke of the need for compassion and charity when people make decisions we cannot accept.
At that point the students seemed to change their response. They had no difficulty in acknowledging the objective wrong of abortion. But, unbeknown to their teacher, the issue that had tied them in knots was a classmate who had recently had an abortion – they did not want to turn their back on their friend.
So what seemed to be a ‘No’ for an issue of faith and morality actually contained a ‘Yes’ hidden within – a ‘Yes’ to compassion and charity.
Reading that story reminded me of a couple who called the Presbytery one Saturday morning. The woman, from Europe, was in the early stages of pregnancy. I agreed to meet her and her partner in the chapel. They wanted to talk with me about having an abortion. Their relationship had ended and she was returning to Europe the following week and had already booked into Auckland Hospital for an abortion on the Monday morning. I listened to them both and we prayed. I then asked if I might give them both the Sacrament of Anointing. They agreed to that. The woman told me that this sacrament would not change her mind. It would be her decision, and hers alone. I simply replied, as I have in similar cases, “I pray, that whatever you decide, and fully respecting your conscience, that this child will be a blessing to you both…”
They both cried during the anointing and asked me to leave them in the chapel. That Saturday, a grey wet day, I later saw them out walking and I again prayed for them and their baby.
The woman called me later that week to thank me. She had flown to Auckland to have the abortion. While on the gurney, waiting to go into the theatre, she hopped off the trolley, went back to her room, got dressed, and discharged herself. She had decided to keep the baby. Her former partner had promised to help her raise it, even while they both acknowledged their relationship was finished. She was returning to Europe. She then said, “I never want to see you again but I do want you to know how grateful I am for your time and for the Sacrament of Anointing.” She added that she still felt “very raw” and faced an “uncertain future” but knew she had “made the right decision" and was at peace.
So, what looked like a ‘No’ was actually a ‘Yes’ masking as a ‘No.’
In the Gospel parable, the first son changes his mind. In other words, he allows God’s unfailing grace to catch up with him.
I think it was the same for that woman and her former partner. Likewise with the High School class and likewise for ourselves. In reaching out to those on the peripheries, and in our own moral development, the gradual responding to grace takes time and requires great wisdom.
Rev Michael McCabe (PhD) is founding director of The Nathaniel Centre and Parish Priest of Our Lady of Kapiti Parish
The Buttons Project – Towards healing from abortion
Marina and Peter Young
The Buttons Project aims to create an opportunity for those affected by abortion – mothers, fathers, grandparents, siblings and friends – to share their stories. It was launched in 2008 by a couple, Marina and Peter, who had themselves experienced the grief and healing of abortion and wanted to do something to help others heal after their abortions.
Their dream was to encourage those affected by abortion to send in a button in order “to commemorate the babies we never met”. Why buttons? They are easy to find and send; each one can be unique; they are long-lasting; buttons symbolise closure; and buttons join, they ‘bring together’ - ‘we are not alone’.
Marina explains that people who have had an abortion can no longer hold their baby and tell that lost child what they want to say, but they can hold a button. A button allows people to share their stories and to also create a memorial for their babies lost to abortion.
Marina and Pete tell the stories of their own abortion journey in a booklet The Unforgotten Babies. In Marina’s words: “I have walked a long road of grace, forgiveness and healing. But how do others find some closure and healing? Where do they turn for help? Abortion is often a taboo subject, no one wants to talk about it or acknowledge the aftermath of abortion. So, to avoid judgement, too many struggle on their own. It becomes a deep dark secret which affects who they are … My dream was – and remains – to collect thousands and thousands of buttons to create an amazing memorial. It will be a place to visit without judgement, a place to remember, to imagine, to grieve, and to then move on from with some peace and healing … For many, abortion is a life-changing event. Abortion can harm women and yet there are individuals and groups who refuse to acknowledge this, or minimise it, seeming to place the right to obtain an abortion at a higher priority than the long-term health and welfare of women. There is much I could discuss with those people, and much we would probably disagree on, but I do want to say this: ‘Whatever your beliefs are, we need to walk gently in people’s lives as we do not know the journey someone has travelled, or the choices the woman had to choose from, that brought her to having an abortion’.”
Peter tells his own story of experiencing abortion and the different way in which he managed or tried to manage his own reaction to it: “… we thought it was the best thing to do: do it, then leave this unfortunate incident behind us and get back on our road to future happiness. I was completely naïve to what was about to unfold … I realised I needed to acknowledge my failings, admitting my mistakes and seeking Marina’s (and Hope’s) forgiveness, for not being their support and their protector in that situation … The Buttons Project is the beauty from the ashes in our life.”
Over 20,000 buttons have been sent to the Button Project, some arriving anonymously, some carefully wrapped, and many with stories and comments. The Buttons Project website, https://www.buttonsproject.org/ includes picture of some of these buttons with their personal messages. While most messages are from the mothers, many are from aunts or siblings of those lost to abortion as well as from friends of the mother, persons whose grief is either not recognised or forgotten.
Marina and Peter have named their baby ‘Hope’: “The button and her name represent hope for the future, peace now, and freedom from the past. It is for closure, and to commemorate something that was part of us.”
Have your say on proposed abortion law reform
The Law Commission has been asked to provide advice on the possible changes to New Zealand's law concerning abortion. The Law Commission will conduct a review and report back to the Minister of Justice.
The Law Commission is inviting feedback from the public about the law change. Input can be provided until 5pm on 18 May 2018.
Information about the current law is available at: http://abortionlaw.lawcom.govt.nz/
The link to online feedback is: http://abortionlaw.lawcom.govt.nz/views/
A submission guide is available at: http://www.chooselife.org.nz/wp-content/uploads/2018/04/Law-Commission-Submission-Guide.pdf
Abortion and Women's Health: https://www.spuc.org.uk/~/media/Files/Abortion-and-Womens-Health_April-2017.ashx
Abortion Supervisory Committee Annual Report 2017: https://www.justice.govt.nz/assets/Documents/Publications/ASC-Annual-Report-2017.pdf
the Buttons Project
P.A.T.H.S. Post Abortion Trauma Healing Service
Pregnancy Counselling Services
Submission to ACART on Proposed Changes to Donation Guidelines and Surrogacy
Staff of The Nathaniel Centre
In September 2017 the Advisory Committee on Assisted Reproductive Technology (ACART) sought public feedback on its proposal to replace four separate guidelines with one that would cover the four procedures of: family gamete donation, embryo donation, the use of donated eggs with donated sperm, and clinic-assisted surrogacy. The most significant policy shift being proposed was to rescind the “biological link” requirement that currently underpins all four donation guidelines. The Nathaniel Centre’s submission to ACART focused on that key issue. A summary of our submission is printed below.
A Catholic approach to the transmission of human life is characterised by two key beliefs: the inviolable dignity of the human person and, flowing from that, a belief that the context in which humans are conceived and the means that are used to conceive can positively or negatively impact on this dignity. This means that children must be conceived in a way which shows that they are respected and recognised as equal in personal dignity to those who give them life. This rules out actions which instrumentalise or treat the child as an object (commodity), whether intentionally or otherwise.
At the emotional, psychological and spiritual levels we all need to experience ourselves as ‘contingent beings’; that is, as beings who came about in a ‘fortuitous’ way – conceived in a way that is free from the manipulation of others, conceived for no other reason than love and out of love. Morally speaking, such a love can be described as ‘disinterested’ and ‘selfless’, as focussed overwhelmingly on the needs and well-being of the child to be born. A disinterested and selfless love calls for parents to accept children as ‘gifts’ without introducing a conditional element into their acceptance into a family. Technological interventions that allow parents to exercise ever greater control and dominance over the sorts of children that are born potentially create a very different context for human procreation.
As philosopher Jurgen Habermas notes:
To impose your preferences upon a potential person is to treat that person as an object, a thing made, rather than to treat as a subject, an autonomous individual. To impose upon another a decision about his genetic composition according to your own preferences is to treat a person as a creature of your preferences, and to constrain that person’s ability to self-actualise. It is to adopt an attitude of domination, of instrumentalising.1
The Significance of Biological Ties
We focused our feedback on one key issue – the significance of a biological connection between parents and the children they raise.
We are greatly concerned about the proposed move to rescind the biological link policy, which, because it radically redefines the traditional understanding and structure of the human family, has broader societal consequences that generate important questions not raised in the Consultation Document.
Our strongly held view is that the requirement for a gestational or genetic link between intending parents and a resulting child must be retained as part of the guidelines governing the use of assisted reproductive technologies.
The recommendation that all biological links be rescinded is premised, we argue, on a lack of regard for the personal/emotional, cultural, societal and spiritual significance of being raised by those to whom we are biologically connected/related and constitutes a lack of respect for the dignity of the child to be born.
It is one thing to accept that there are situations in which a birth parent or parents cannot care for their biological child and doing the (next) best thing that promotes the best interests of that child, as occurs with adoptions, but it is quite something else to intentionally set out to deprive children of the right to grow up in their biological families.
To minimise the significance of biological connection for an individual’s overall well-being and identity in favour of the needs and desires of adults for whom donated gametes/eggs represents the “best or only” opportunity to have a child, effectively categorises it as some sort of ‘optional extra’ and creates what one author has referred to as “existential challenges of novel dimensions.”
The Consultation Document emphasises the importance of children being informed about their biological (and gestational) origins, but we argue that children have a fundamental right to grow up within the family networks that are generated by their genetic and gestational ties. Apart from situations of abuse or neglect, arrangements that intentionally exclude children from growing up within families with whom they have biological ties are less than optimal even when, or if, they are ‘informed’ of their biological origins. This stance provides the strongest possible rationale for allowing only those Assisted Reproductive
Technologies (ARTs) which hold together the genetic, gestational and social dimensions of procreation, and for rejecting those procedures which fracture these three dimensions.
In support of our stance, we note the importance that is given to promoting and/or maintaining the relationship between children and their biological families of origin in critical areas of social and public policy and practice. For instance, the Ministry of Social Development has always emphasised the importance of supporting birth families to care for their children and, when required, has given priority to children being placed with their own wider family or whānau whenever possible. Removing the biological connection would represent a significant adjustment to the principles that guide New Zealand policies and practices concerning children and whānau/ families.
It is one thing to accept that there are situations in which a birth parent or parents cannot care for their biological child and doing the (next) best thing that promotes the best interests of that child, as occurs with adoptions, but it is quite something else to intentionally set out to deprive children of the right to grow up in their biological families.
We also note that rescinding the biological link as a matter of policy is out of step with UNCRC Article 8 which reads: “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.”2
Consequently, we maintain that the recommendation to remove the requirement that there be a gestational or genetic link between intending parents and a resulting child is inconsistent and out of step with (i) current national and international public policy and practice relating to the care of children and (ii) cultural practices of Maori.
For these reasons we maintain that the arguments offered in the Consultation Document fail to give proper consideration to Principles f) and g) of the HART Act: adequate respect for the needs, values and beliefs of Māori, as well as the different ethical, spiritual and cultural perspectives. This, in addition to our belief that the proposed changes fail to adequately take into account the health and wellbeing of children born as a result – principle a).
We readily acknowledge that maintaining the biological link policy rules ‘in’ only certain means of conceiving children. In response to the Consultation Document which suggests that the current requirement for a biological or gestational link is “a source of potential discrimination” (n. 49), we argue that our commitment to the status quo is more accurately described as ‘a positive commitment to showing proper respect for the health and wellbeing of children’ born as a result of such practices.
From this it follows that the rejection of certain means and situations for conceiving human life is most correctly viewed as the logical and ethical consequence of a positive and intentional commitment to the optimal flourishing of children. We therefore reject the view that our stance discriminates against certain categories of intending parents (single men or single women) or certain types of couple relationships (which we note include both heterosexual as well as same-sex couples).
In response to those who see the current guidelines as an unjustified limitation on their choice, we note that our stance articulates the critically important idea that there are limits to autonomy. As stated by Atkin and Reid in 1994: “… individual rights can be limited when the aim is to protect important social interests … that different people’s rights overlap, that rights are subject to various limitations.”3 And also: “Members of many cultures, including Māori, have collective values which may intercept the limits of autonomy and these new limits of autonomy must be negotiated.” 4
Allowing parents to conceive children with whom there is no biological or gestational link would be a significant and concerning step along a path that redefines parenthood as a social construct rather than a biological phenomenon.
For the reasons outlined above, we argue for retention of the biological link which, by insisting that at least one of the intending parents must have a gestational or genetic link, holds together at least two of the three inter-related components of conceiving and rearing children – either social and gestational or social and genetic.
We acknowledge that there is an inherent tension in the use of ARTs which results from holding the welfare and well-being of such children in a creative balance with respect for the rights and choices of intending parents who seek to use reproductive technology.
We argue that the regulations governing the use of ARTs in New Zealand since the ACART Act was passed in 2004 have, to date, managed to successfully maintain that creative balance between the two (at times competing) realities. However, rescinding the biological link represents a significant shift in that balance away from the rights and well-being of the child.
To the extent that there is a right to have a child we argue that it exists as a ‘negative right’ rather than a ‘positive right’. The 1994 Report on Assisted Human Reproduction concurs: “Any right to found a family must not be seen in proprietary terms. It is not a right to have or own a child, whom many see as a gift.”5
When considering the eligibility criteria for intending parents who wish to enter a surrogacy arrangement and/or use donated gametes or donated embryos, our position is that an ethical commitment to the optimal well-being and flourishing of the child means giving over-riding priority to the maintenance of a genetic or gestational connection.
On this basis, we conclude that the recommendation to rescind the biological link between intending parents and their children makes the well-being of children secondary to the needs and desires of adults.
Allowing parents to conceive children with whom there is no biological or gestational link would be a significant and concerning step along a path that redefines parenthood as a social construct rather than a biological phenomenon. This would represent a significant ethical and social change for the whole of society, which should not be implemented without much wider public discussion and consensus.
As noted above, it is one thing to accept there are situations where children are unable to grow up with their biological family but quite another to intentionally create such scenarios. For this reason, we regard the donation and adoption of so-called ‘spare’ embryos by intending parents who are not biologically connected as ethically and morally distinct from the deliberate creation of such embryos.
Guidelines associated with embryo creation and surrogacy should stem from an ethical framework rather than simply respond to the next stage in the development and availability of assisted reproductive technologies. To this end we recommend the ‘ethic of care’ that is articulated by Atkin and Reid in their 1994 Report: … an ethic of care holds, broadly speaking, that moral reasoning is not solely, or even primarily, a matter of finding rules to arbitrate between conflicting interests … the priority … is on helping human relationships to flourish by seeking to foster the dignity of the individual and the welfare of the community.6
1 See Rorty, M (2003) in her review of Habermas, Jurgen, The Future of Human Nature.
2 See http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
3 See Atkin, W. R., & Reid, P. (1994). Assisted human reproduction: Navigating our future. Report of the Ministerial Committee on Assisted Reproductive Technologies. Department of Justice. New Zealand. P. 30.
4 Ibid., p. 30.
5 See (Atkin, W. R., & Reid, P. (1994). Assisted human reproduction: Navigating our future. Report of the Ministerial Committee on Assisted Reproductive Technologies. Department of Justice. New Zealand. P.31.
6 Ibid., p. 28
Proposed Abortion Law Reform in New Zealand
The request from the Minister of Justice that the Law Commission review the abortion laws centres on the Government’s stated desire “to make changes to ensure New Zealand’s abortion laws are consistent with treating abortion as a health issue that is a reproductive choice for women, rather than as a criminal issue” (Letter from the Prime Minister, Rt Hon Jacinda Ardern, to Minister of Justice, Hon Andrew Little – not dated).
In response to the question of whether the current legal framework needs to change we offer the following points for consideration.
Abortion is best treated as both a justice issue and as a health issue. The starting presumption should always be in favour of human life, no matter the stage of development of that life. Any decision to end a human life should only be granted as an ‘exception’ to the principle that all members of the human family have an inherent dignity. This principle, spelled out in the United Nations Declaration of Human Rights, is meaningless if it is not enshrined in the law. The Contraception Sterilisation and Abortion Act 1977 holds the rights of the child and the rights of the mother in tension, having due regard for both. This should not change.
In every abortion there are two human lives involved and at least one life is at stake. Our present laws reflect the fact that human life should not be taken without good reason. Making abortion solely a ‘health issue’ places the fundamental right to life, something that should be a presumption for all human life, outside of any law and making the rights of the unborn child totally dependent on the choice of the mother. This which would potentially allow for abortion for any reason, including gender selection. We need legislation which clearly specifies the circumstances under which abortion remains unlawful and under which abortion providers will be prosecuted for unlawful abortions.
Any change in legislation needs to ensure women are free to make informed choices, including the choice to continue their pregnancy. Abortions have been shown to cause psychological and mental harm to some women, affecting their physical and emotional well-being. What is required are better processes that support women and allow them access to unbiased information and adequate safeguards by way of independent counselling. In the face of evidence which shows that many women choose abortions under duress – whether from a partner or family or because of financial or social reasons – the introduction of mandatory independent counselling will allow them greater control and choice while minimising the risks to health and well-being that often follow.
The current law does not make criminals of women – a fact often misrepresented by those proposing change. Any woman in New Zealand who procures an abortion within the current regulatory framework is not committing an illegal act. The law does, however, protect them from unlicensed and unscrupulous abortion providers. “Unlawful” providers can be prosecuted under current legislation but the woman seeking an abortion cannot be prosecuted. Sec 183 of the Crimes Act specifically states that while the person who “procures” the miscarriage is liable for imprisonment, the “woman or girl shall not be charged as a party” to any offence.
Abortion Law Reform and the State’s Interest in Protecting Unborn Life [SYNOPSIS ONLY]
In the wake of the current debate about abortion laws, Ian Bassett briefly outlines the legal history surrounding the protection of human life in all its forms – from our tradition of English common law through to more recent statements by the New Zealand judiciary. The long-standing protection of life is put at risk by the latest moves to remove abortion from the Crimes Act. The gravity of what is being proposed should initiate a broad and informed public debate.
The full article is available by subscription to The Nathaniel Report
Review of the Abortion Laws in New Zealand: Submission to the Law Commission – May 2018
Joint submission by the New Zealand Catholic Bishops Conference & The Nathaniel Centre
The Status of Unborn Human Life: Our Position
The debate about when human life begins is uncontroversial. As reported by the Royal Commission on Contraception, Sterilisation and Abortion (1977): “From a biological point of view there is no argument as to when life begins. Evidence was given to us by eminent scientists from all over the world. None of them suggested that human life begins at any time other than conception.”
The ethical questions around abortion and research on embryos centre on the sort of respect or protection we should accord human life; in particular, whether it is ethically consistent to accord a different level of respect to humans in the earliest stages of life, as well as whether there are ever factors that mitigate the respect due to human life at any stage of development.
Most people, whatever their position on issues such as abortion or embryo research, agree that human life deserves a ‘special’ status even if they do not accord unborn human life the same moral status as human life post-birth. The belief held by some that the life of a human embryo matters less than other human life at a more developed stage may reflect the fact that it is largely unseen. However, an embryo is not simply a collection of cells that happen to be contiguous. These cells are a human embryo, a new human individual and part of the human family. Embryos and foetuses become children just as children become adults, not by some addition to what they are, but simply by developing further as the kind of beings they already are.
The common understanding of ‘person’ in our culture has, latterly, been shaped by an emphasis on self-consciousness as the mark of personhood. A much older understanding of person, however, locates personhood in the dignity of a being's rational nature, irrespective of whether that being is even ‘conscious’ at a particular phase in his or her life. According to this traditional view, there is nothing problematic about saying that an unborn child or a persistently unconscious patient is a person, for they are truly our fellow human beings.
Recognising that the status of the human embryo or fetus flows from their inherent connection to the human family is key to understanding why Catholic teaching holds they ought to be treated with unconditional respect whatever the stage of development – a life is begun which is neither that of the mother nor the father. It is already the human being it will always be and will only grow in size and complexity. Mothers instinctively recognise this by invariably referring to the embryo or foetus within the womb as their baby.
On that basis, embryos and foetuses are entitled to be granted a place in the human family and treated with the same respect as persons. As the Royal Commission stated: “The unborn child, as one of the weakest, the most vulnerable, and most defenceless forms of humanity, should receive protection.”
There is a lack of clarity that has led to confusion in the community about the precise meaning of the brief that has been given to the Law Commission by the Minister of Justice. We are assuming that the wish to treat abortion as “a health issue that is a reproductive choice for women”1 centres around a wish to provide for ‘abortion on demand’ in New Zealand – that is, a wish to make it a decision solely between a woman and a doctor as is the case for reproductive choices involving contraception. However, this is nowhere clearly spelled out, something which makes it difficult to comment on your brief in a truly informed way.
If our assumption is correct, then what the Law Commission is being asked to do represents a significant policy change. As we understand it, the current law, as set out in the Contraception, Sterilisation, and Abortion (CS&A) Act 1977 and the Crimes Act 1961, sets up a ‘tension’ between the needs and desires of the woman and the rights of the foetus/unborn child and seeks to balance both. Making abortion solely “a health issue that is a reproductive choice” would ignore this tension, removing any requirement to consider the rights of the unborn child.
Meanwhile, we note that in public comments explaining your brief,2 you state that the Law Commission will not be commenting on policy issues.
In our minds there is a degree of incongruity between the brief and your public comments. In which case we interpret your comments about policy to mean that it is not part of your task to recommend that any changes be made to the eligibility criteria for abortion or to promote any alternative approaches as preferable to the existing policy approach.
The public and other interested parties have a right to be fully consulted on any changes to the current policy approach, including eligibility criteria. It concerns us that the Law Commission could potentially be cooperating in a policy change by stealth.
That your brief falls short of the “full review of the legislation” that Justice Minister Andrew Little was reported as saying “would first take place” adds to our concern about a lack of proper process on what is a critically important piece of legislation.3
In line with the Catholic position stated above, we are opposed to any change in the law which would either lessen or, worse, totally remove the (limited) rights the current law accords to the unborn child. The changes we would 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 and (ii) promote the well-being of women, including better processes to ensure adequate informed consent.
Indeed, along with the 65% of New Zealanders identified in the 2017 Curia Poll,4 we would like to see changes implemented that would further reduce the number of abortions occurring in New Zealand.
We understand that under current law there is no ‘right’ to have an abortion in New Zealand and that administering (or supplying the means for procuring) an abortion is unlawful except when certain eligibility criteria are met as spelt out in Sec 187A of the Crimes Act 1961. The current situation is arguably well-described as providing for ‘abortion on request’ insofar as any discussion about abortion must be initiated by the woman but ultimately depends on two appointed doctors being satisfied that critical eligibility criteria are met.
We note that there are certain groups and individuals pushing for change who claim that the current law criminalises women. Sec. 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 relevant section being that which describes “unlawful abortions”). We therefore regard such claims as both inaccurate and mischievous – under current abortion legislation, women are not liable for prosecution except in situations where they attempt to procure their own abortion, something we comment on below.
Our Key Arguments:
The ‘tension’ that we believe characterises the current regime (see above) is revealed in the legislation in several places:
It is spelt out in Section 30(5) of the CS&A Act which stipulates that the appointment of members to the Abortion Supervisory Committee should have regard to views ‘incompatible’ with the tenor of the CS&A Act. The views described as ‘incompatible’ are:
(a) that an abortion should not be performed in any circumstances:
(b) that the question of whether an abortion should or should not be performed in any case is entirely a matter for the woman and a doctor to decide.
It is also evident in the longer title of the CS&A Act: An Act … to provide for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child…
That the unborn child has a status that gives it rights is also upheld in Section 182 of the Crimes Act (“Killing unborn child”) which, we note, you have been instructed need not be reviewed (Letter from Minister of Justice Hon Andrew Little to Hon Sir Justice White QC, 27 February 2018 – letter released under the Official Information Act). Logically speaking, the ongoing existence of Section 182 andthe existence of a parallel law making abortions solely a matter between the woman and her doctor, would set up an inherent contradiction between two laws.
Making abortion solely a health issue, in the sense of making it merely a matter between a woman and her doctor, will deny many women the chance to manage the tension that lies at the heart of all abortion decisions. That is, it will deny women the chance to deal with abortion as a significant ‘moral issue’ involving the ending of a human life. This, we argue, would not be in women’s interests. As the feminist writer Naomi Wolf has stated: “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; that the best understanding of feminism involves holding women as well as men to the responsibilities that are inseparable from their rights…”.5
Most women understand that an abortion, whatever the reason they are contemplating it, has significant moral implications. This is signified, among other things, by the way women who have had abortions commonly speak of their ‘child’ rather than using terms such as ‘the products of conception’. In a peer-reviewed qualitative exploration of women’s needs and preferences in clinical care during the process of having an abortion, one of the strong themes to emerge was that women want to be recognised as “grappling with a real-life moral decision”; to be affirmed as “moral decision-makers”, something that only occurs “when medical personnel recognized this conflict and affirmed the decision as moral …”6
Using language which either denies what is happening or which disguises the complexity and moral dimensions of abortion, is ultimately not in the interests of women. Equally, and even while it might be presented as empowering women to make their own decisions without interference from the State or others, creating an altered legal regime that frames abortion as being solely about the well-being of the mother will potentially undermine women’s sense that abortion is a serious moral issue and, consequently, their moral agency. Were that to eventuate, the State would be party to undermining the true ‘moral’ dimension of abortion and would be potentially contributing to poorer outcomes for many women.
It is our considered and strongly held view that the tension that characterises the current legal approach must be retained. To be retained, it must be reflected in the legal framework governing access to abortion.
There are three other important reasons for retaining certain provisions relating to abortion in the Crimes Act that we wish to highlight:
Under the current law, there is protection provided to women from unscrupulous abortion providers. This needs to remain and it is proper that the Crimes Act continue to spell out sanctions to prevent and/or punish such actions.
The increased use of medical abortifacients and their ready availability from other countries via the internet, means that some women may seek to import such drugs and take them without proper medical supervision. This is particularly a risk for young women who feel the need to keep their pregnancy and abortion decision secret. Whether they import the drugs directly or fall prey to unscrupulous providers, it is for the protection of these women that the importation of such drugs must be restricted in law.
If treating abortion as a ‘health issue that is a reproductive choice’ means, as we suggested above, ‘abortion on demand’, then this allows for abortion for any reason, including gender selection and disability. These reasons for abortion are highly contentious. We note here the Curia poll of 1,000 New Zealand residentswhich found that only 9 percent of respondents supported sex selective abortions, and 90 percent were opposed. For females, only 1 percent supported sex selective abortion while 94 percent opposed it.
For all the reasons spelled out above, we argue that abortion needs to be treated as both a justice and a health issue. We argue this requires legislation which clearly and precisely specifies the circumstances under which abortion remains unlawful and under which abortion providers will be prosecuted for unlawful abortions.
In support of our position we note that the Abortion Supervisory Committee (ASC) has notbeen advocating for a significant change in the way that abortions are administered in New Zealand. In the 2017 Report to Parliament’s Justice Select Committee, the ASC stated that: “The ASC does not propose amendments that would change the original intent of the Act.”
Furthermore, and importantly, in the same 2017 Report it is written that “[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.” While there are some who argue that the current law disempowers women because it makes what should be a personal decision subject to external interference, to cumbersome and intrusive legal and procedural obstacles, we argue that choices are always limited by the constraints of knowledge and by context, including coercion,.8,9 As The Nathaniel Centre has previously stated:
Many women, after the event, report feeling that they had no other option at the time but to proceed, often because of pressure from parents, partner and/or peers. At times this pressure is also experienced as coming from staff at the Termination of Pregnancy Units. For other women, the pressure they feel is generated by employment or social factors. In the words of another commentator, in such situations, the decision for an abortion is best described as a tragic response to lack of choice.10
It is therefore in the interest of free and informed consent that all women should be offered independent counselling that (i) addresses the coercive realities surrounding many abortions and (ii) canvasses the other options that exist. The law has an important role in ensuring that women are given the opportunity to understand and work with the complex moral, personal, family and social contexts within which they find themselves contemplating an abortion. ‘Abortion on demand’ will not achieve this. In other words, it is important to keep in place carefully considered eligibility criteria as well as providing a robust pathway of options that is clearly laid out in law.
Furthermore, reducing abortion decision-making to ‘a reproductive choice for women’ denies the fact that many others are involved in and/or impacted by the decision. As Germaine Greer has written:
Pregnancy is unlike other patient-doctor relations in that there are two other individuals involved - the father-to-be and the child-to-be … 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.11
Women are reported in the literature as taking into account a range of persons and factors when contemplating an abortion including “the woman herself, the potential child, her sexual partner, existing children, the extended family, and financial matters.”12 Women contemplating an abortion are well aware of the broader ramifications of such a decision and it would be a moral and social disservice to them if the language and regulatory frameworks around abortion conveyed something different. The legal model for regulating abortions in New Zealand must acknowledge and account for this broader reality. A narrow framework focussed solely on the mother will not achieve this.
If the law is to protect and promote genuine informed consent, then women contemplating abortion must be given the time and support required to make a genuine decision. A decision for an abortion can only be described as a truly ‘free’ choice if the woman knows there is tangible support (familial, financial, emotional, social) that enables her to choose to keep the child. This requires a parallel review of the social support structures that our society offers to women who are pregnant.
We note that the health risks associated with an abortion are widely acknowledged in the research literature. While there is some disagreement in the research literature about the extent of the negative health consequences of abortion for women, the negative effects on some women are incontestable. This provides a further reason in our minds for clearly laid out and robust processes, including the funding and availability of independent counselling provided by an individual or organisation otherthan the abortion provider.
Referring again to the 2017 ASC Report, as well as the 2016 Report, we do agree that some of the language used in the present CS&A Act is outdated and clumsy and needs to be reviewed.
Public awareness of the complexities of this issue is illustrated in the Curia Poll13 referred to above. Some of the findings of this poll include:
52 percent of respondents ‘generally support abortion’ but 29 percent ‘oppose’ and 19 percent were ‘unsure/refuse’;
Of respondents aged 18 to 40 years, only 47 percent ‘support’ abortion, with 34 percent opposed and 19 percent ‘unsure/refuse’.
65 percent of respondents agree that society should work together to reduce the number of abortions; only 17 percent disagree;
Of those who generally support abortion, 63 percent agree we should reduce the number of abortions.
Only 9 percent of respondents support a time limit of 20 weeks (the current legal limit); 4 percent support time limits over 20 weeks; 41 percent support time limits of 15 weeks or less.
It is noteworthy that in New Zealand, abortion numbers and rates have been declining since 2007. That is, the numbers of abortions, the ratio of abortions (number of abortions per 1000 pregnancies) and the rate of abortion (number of abortions per 1000 women aged 15-44) have all declined. While the reasons for this are not understood, those on both sides of the divide can agree this is a good thing. We suggest that while the reasons for this decline are not understood, it is a precarious time to tamper with the law. Any proposed changes should be considered keeping this in mind.
Conclusion: ‘Abortion is both a health and a justice issue’
Human life begins at conception and is entitled to the full protections offered to human persons from that point forward.
The inherent dignity of human life from conception means that the starting presumption should always be in favour of human life, whether born or unborn. It’s on this basis that we oppose establishing a ‘right’ to abortion. This being so, it is appropriate that the unborn enjoy the same fundamental protections the Crimes Act provides for all other human beings. Therefore, 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.
Our considered view is that abortion is both a health and a justice issueand it should be treated by the law as such.
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 allhuman life. It would abdicate this responsibility by making abortion solely a matter between a woman and her doctor.
We need legislation which clearly specifies the circumstances under which abortions remain unlawful and under which abortion providers will be prosecuted for unlawful abortions.
We do not support changing the original intent of the Contraception, Sterilisation, and Abortion Act 1977. The current law acknowledges and upholds a ‘tension’ between the effect of the pregnancy on the woman and the rights of the unborn child. This must not be lost in any review of the current laws.
The changes we would advocate for are those which would (i) further recognise the rights of the unborn child, (ii) promote the well-being of women, including better processes to ensure adequate informed consent and (iii) lead to fewer abortions occurring in New Zealand.
We want to see the law provide a more “robust pathway” governing abortions in New Zealand, one that acknowledges women’s need for full and independent information and support in order that genuine informed consent can take place. To this end, we want to see the provision of independent and publicly funded counselling for all women considering an abortion.
1 Letter from Rt Hon Jacinda Ardern to Hon Andrew Little, released under the Official Information Act – not dated.
2 Radio New Zealand, Sunday 22 April, “Commissioning Changes”. Interview with Hon Sir Douglas White, QC, Law Commission. https://www.radionz.co.nz/audio/player?audio_id=2018640535
3 See Craig McCulloch, “No abortion changes until ‘well into next year’”, 2 November 2017, https://www.radionz.co.nz/news/political/342899/no-abortion-changes-until-well-into-next-year, accessed 17 May 2018.
4 Curia Market Research. Abortion Poll, February 8, 2018, https://www.curia.co.nz/2018/02/abortion-poll-2/
5 “Naomi Wolf on Abortion: ‘Our Bodies, Our Souls’". New Statesman 27 January 2013http://www.newstatesman.com/politics/politics/2013/01/naomi-wolf-abortion-our-bodies-our-souls
6 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.
7 Curia Market Research. Abortion Poll, February 8, 2018, https://www.curia.co.nz/2018/02/abortion-poll-2/
8 Jones, R. K., Frohwirth, L., & Moore, A. M. (2013). More than poverty: Disruptive events among women having abortions in the USA. The Journal of Family Planning and Reproductive Health Care, 39(1), 36: “More than half (57%) of the women obtaining abortions experienced a potentially disruptive event within the last year, most commonly unemployment (20%), separation from a partner (16%), falling behind on rent/mortgage (14%) and/or moving multiple times (12%).”
9 Hall, M., Chappell, L. C., Parnell, B. L., Seed, P. T., & Bewley, S. (2014). Associations between intimate partner violence and termination of pregnancy: A systematic review and meta-analysis. PLoS Medicine, 11(1): “Among women who underwent TOP, reported rates of IPV in the preceding year ranged from 2.5% to 30%, while lifetime rates of IPV in this population varied from 14% to 40%.” (TOP refers to “termination of pregnancy” and IPV refers to “intimate partner violence”.)
10 Piper, C. and Kleinsman, J. Editorial – Why are abortion advocates afraid of informed choice? The Nathaniel Report, 51, April 2017.
11 Greer, Germaine. The Whole Woman. Black Swan. London. 2011.
12 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 & Reproductive Healthcare, 1(4), p. 152. See also Biggs, M. A., Gould, H., & Foster, D. G. (2013). Understanding why women seek abortions in the US. BMC women's health, 13(1), 29.
13 The full results for this poll can be found at: https://www.familyfirst.org.nz/wp-content/uploads/2018/01/Abortion-Poll-Results-January-2018.pdf