Abortion Legislation Reform

A Brief Overview of Abortion Laws in New Zealand:

The two key laws that regulate abortion in New Zealand are the Contraception, Sterilisation, and Abortion Act, enacted in 1977 and the Crimes Act, enacted in 1961.

In early 2018, the government stated that it wanted to ensure that New Zealand’s abortion laws were consistent with treating abortion as “a health issue that is a reproductive choice”.  To this end, the Minister of Justice asked the Law Commission to provide advice on possible changes to New Zealand’s abortion law. The Law Commission conducted a review and reported back to the Minister of Justice in October of 2018 (https://www.lawcom.govt.nz/abortion).

Based on this review, on Thursday 8th August 2019, Justice Minister Andrew Little presented a revised Abortion Law to Parliament. The proposed law fulfils Labours’ 2017 election campaign intention to review abortion processes and practices. After various speeches from MPs on the 8th of August, the proposed Abortion Legislation Bill passed its first reading and the House voted to send it to a specially constituted Select Committee by a margin of 94 – 23 votes. The special Select Committee is now receiving submissions from the public about the proposed law. The closing date for submissions is Thursday 19 September 2019.

The Current Law and the Proposed Changes:

Under the current law in New Zealand, abortion up to 20 weeks gestation is lawful if continuing the pregnancy would result in serious danger to the life or physical or mental health of the woman, or if there is substantial risk of serious “foetal abnormality”, or if the pregnancy is the result of incest, or if the woman is deemed to be “impaired” [this is the terminology used in the current law].  To be lawful, the decision to abort the pregnancy must be approved by two doctors (certifying consultants).  After 20 weeks gestation, there must be good reason to believe that the abortion is necessary in order to save the life of the woman or to prevent serious permanent injury to her physical or mental health.

Under the proposed new law, abortion up to 20 weeks gestation will be legal but with no statutory test for eligibility required; the wording effectively provides for abortion on demand, whatever the circumstances. The health practitioner involved will be “required to ensure that the woman makes an informed choice and gives informed consent” for the abortion to proceed.  

For pregnancies beyond 20 weeks gestation, the revised law proposes that abortions be legal up to birth subject to a “statutory test” that requires the health practitioner to reasonably believe it “is appropriate with regard to the pregnant woman’s physical and mental health, and well-being.” This will make it much easier to access late-term abortions than is the case now.

The table below provides a summary of the key differences between the current law and the proposed law for abortion:

The Current Law The Proposed Law
  • The unborn child has (limited) rights: “... abortions may be authorised only after full regard to the rights of the unborn child.”
  • Performing an unlawful abortion is a criminal offence. Abortions are lawful when certain legal grounds are met.
  • Two specially appointed certifying consultants must be satisfied that the grounds for a lawful abortion apply.
  • Up to 20 weeks: Abortion is lawful if continuing the pregnancy would result in serious danger to the life or physical or mental health of the woman; substantial risk of serious “foetal abnormality”; incest; “impairment of woman”.
  • After 20 weeks: An abortion is granted only if it is necessary to save the life of the woman or prevent serious permanent injury to her physical or mental health.
  • The Abortion Supervisory Committee shall “take all reasonable and practicable steps to ensure sufficient and adequate facilities are available ... for counselling.”
  • Practitioners who conscientiously object to providing abortions are not required to refer the woman onto another practitioner.
  • It is unlawful for an employer to discriminate against an employee on the grounds of conscientious objection.
  • It is an offence for a woman to attempt to procure/carry out her own abortion.
  • It is a criminal offence for unqualified people to attempt to procure an abortion or supply the means.
  • A person whose actions lead to the death of an unborn child (Crimes Act, S182), other than to preserve the life of the mother, is liable for imprisonment up to 14 years.
  • Abortion is treated solely as a 'health' issue – a matter between the mother and her doctor. Abortion will be “provided like other health services.”
  • Abortion will be removed from the Crimes Act - health practitioners who do not comply with the standards will be disciplined under a complaints & disciplinary regime for health practitioners.
  • Any woman can self-refer to an abortion provider.
  • No statutory test up to 20 weeks. The “health practitioner” is “required to ensure that the woman makes an informed choice and gives informed consent.”
  • After 20 weeks: Abortions will be allowed up to birth subject to a "statutory test" that requires the health practitioner to reasonably believe "it is appropriate with regard to the pregnant woman's physical and mental health, and well-being."
  • Providers must advise women of the availability of counselling, but it is not mandatory to have counselling.
  • A practitioner who objects is required to tell the woman how she can access the contact details of a provider of abortions.
  • Employers can consider how conscientious objection would impact on their ability to provide abortion.
  • Repeals the offence relating to a woman who attempts to procure/carry out her own abortion.
  • It remains a criminal offence for unqualified persons to procure or supply the means for an abortion.
  • Includes a regulation-making power to set up “safe” areas around abortion facilities on a case-by-case basis.
  • The S182 offence of “Killing [an] unborn child” remains, but specifically excludes abortions under the CSA Act.

From both an ethical and legal point of view, the changes that are being proposed constitute a significant departure from the current abortion regime. Notwithstanding the way in which it may have been interpreted to date, the law as it currently stands provides for the statutory protection of both the unborn child and the mother; the human rights of each are acknowledged and held in tension.  This is exemplified in the longer title of the Contraception, Sterilisation and Abortion Act (1977), which reads “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.”

By positioning abortion solely as a health issue, the proposed law dissolves the tension that characterises New Zealand’s abortion statutes; from a legal perspective, there would no longer be a requirement to consider the rights of the unborn child or to recognise the fact that there is another human life that is at stake, a life that will be ended by the abortion.

A Message from the New Zealand Catholic Bishops to Parishioners:

Every pregnancy involves at least two lives – the child and the mother. Every abortion takes away an innocent life.

Protecting and caring for life from conception to natural death stands at the core of our Catholic faith. From the moment an embryo comes into existence, a genetically and spiritually unique human life has begun. It is already the human being it will always be. It will only grow in size and complexity and is therefore entitled to be treated with the same respect as other human beings.  

Our parliament is currently debating a significant revision of our abortion laws. This is a matter of serious concern. There are three ways we need to respond:

Political: We are called to speak up for those who cannot speak for themselves. We have an obligation to advocate for the right to life of the unborn child and the well-being of mothers. We encourage every one of you to exercise your democratic right to make a submission to parliament and to contact your local MP.

Prayerful: Every human life is a gift from God. Just as parents spontaneously pray for their unborn child, so we are called to pray for all the unborn, as well as for their parents and extended families. We also pray for wisdom for our MPs.  

Pastoral: Our belief in the sanctity of life is demonstrated in the way we show love for both unborn children and their mothers. The message others hear from us will be shaped not just by our words, but also by the way in which we speak and act. We need to ask: ‘After this debate is over, will our faith communities be seen as places of love, compassion and care that women facing the challenges of a pregnancy will want to turn to?’

We urge you to inform yourselves about this issue and take a stand for life.

Some Points to Consider When Making Your Submission to the Special Select Committee:

  • Human life begins at conception and is entitled to the full protections offered to all human persons from that point.
  • Abortion is both a justice issue and a health issue. There are two human lives involved in every pregnancy - that of the mother and her unborn child. The State has an interest in preserving all human life, including unborn human life, and this has always been recognised by law. The taking of human life is rightly a justice matter.
  • From a human and ethical point of view, the changes being proposed constitute a significant departure from the current law. Notwithstanding the way in which it may have been interpreted, the current law acknowledges the rights, and provides for statutory protection, of unborn human life, even though it qualifies this protection by balancing it against a pregnant woman’s right to seek a lawful abortion in certain medical circumstances.
  • By framing abortion solely as a health issue that is seen as a ‘reproductive choice’, the proposed law essentially denies the rights of the unborn child – inalienable rights which arise out of a shared humanity.
  • Women are not currently criminalised for having abortions in New Zealand, as many claim, because the current law expressly states that women are not liable for prosecution under the Crimes Act for having an unauthorised abortion. (An exception to this is a woman procuring her own abortion, but this clause is removed in the proposed law.)
  • The proposed new law will provide abortion ‘on demand’ for women up to 20 weeks gestation, no test for eligibility required. Women often choose to have an abortion because of a range of pressures and stresses related to poverty, social shaming, lack of community support, pressure from a partner or family, or isolation. Simply making abortions easier to obtain at all stages, as the new law proposes, does nothing to address these serious underlying issues, all of which have a coercive element.
  • It is in the interest of free and informed consent – which rightly underpins all health procedures – that women should be offered independent counselling that (i) addresses the coercive realities surrounding many abortions and (ii) canvasses the options other than termination that exist for women who are pregnant. It is not enough to merely “advise women of the availability of counselling services” because this will fail to ensure proper ‘informed consent’.
  • The proposed law, while it states that health practitioners are “required to ensure that the woman makes an informed choice and gives informed consent,” provides no robust process for ensuring that this will take place.
  • In its 2017 Report to Parliament, the Abortion Supervisory Committee (ASC) stated that it “recognises the merit in having a robust pathway [for abortion] in place, which requires certifying consultants to assess and certify patients and to ensure counselling is offered.” The proposed law is a step back from the ASC’s own recommendations.
  • A woman of any age can self-refer under the proposed law, including pregnant teenagers. While the current law also allows this, the process of requiring a doctor to refer, and two certifying consultants to sign off, provides added layers of scrutiny and support that do not exist under the proposed law. There are no safeguards in the proposed law to ensure that teenage mothers are not seeking an abortion because of abuse or coercion.
  • The statutory test in the proposed law for abortions later than 20 weeks requires the practitioner to “reasonably believe that the abortion is appropriate in the circumstances”, an undefined condition that is open to wide interpretation. Late-term abortions will become much easier to obtain than under the current law for a host of reasons that are currently excluded under our present abortion regime; these reasons include pregnancies terminated on the basis of disability, as well as sex-selective abortions.
  • Neither the current nor the proposed law protects sufficiently against abortion on the grounds of disability. Under the proposed law, an unborn child with a disability may be more vulnerable because of the removal of the safeguard of the two certifying consultants.
  • The proposed law does not clarify who is deemed to be a “Qualified Health Practitioner”. There is no requirement that the practitioner be a doctor.
  • The proposed law will undermine doctors’ ability to exercise their right to freedom of conscience. By making it mandatory for a health practitioner to tell their patient how to access the contact details of another person who is a provider of the service requested, they become complicit in the abortion.
  • The proposed Bill does not address any of the serious, underlying societal issues that can become key factors in shaping an abortion trajectory; poverty, lack of community support, lack of employer support, lack of state support, coercion from a partner, family or friends.
  • The proposed Bill does not do anything to strength and extend the societal structures, policies, organisations, and community supports that are required to sustain and nurture all life, from conception through to a natural death.

A downloadable Submission Guide containing this material is available here

How to Make Your Submission:

By Letter:

On a covering sheet, write “Submission on Abortion Legislation Bill” + “This submission is from [full name] and/or [organisation] + contact details: contact address, contact phone, & signature. On a separate piece of paper write your submission. Begin by stating clearly your position. Give your reasons and use your own words. Be respectful and constructive. State whether you wish to make an oral submission.

Enclose TWO copies of your submission and post it to:

Committee Secretariat,
Abortion Legislation Committee,
Parliament Buildings,
Wellington
(stamp required)

Via the Parliamentary website:

https://www.parliament.nz/en/ECommitteeSubmission/52SCAL_SCF_BILL_89814/CreateSubmission or search for “Abortion Legislation Bill New Zealand Parliament” and follow the steps.

Please note that email submissions will not be accepted.

The submission closing date is THURSDAY 19 SEPTEMBER 2019.

Make Your Submission Now

 

Other Resources:

The joint submission by the New Zealand Catholic Bishops and The Nathaniel Centre to the Law Commission on the review of abortion laws in May 2018 is available here – http://www.nathaniel.org.nz/component/content/article/14-bioethical-issues/bioethics-at-the-beginning-of-life/457-review-of-the-abortion-laws-in-new-zealand-submission-to-the-law-commission-may-2018

The 2018 Law Commission review of New Zealand’s abortion law can be accessed here – https://www.lawcom.govt.nz/abortion

A copy of the current abortion law can be accessed here –
http://legislation.govt.nz/act/public/1977/0112/latest/DLM17680.html?search=qs_act%40bill%40regulation%40deemedreg_contraception%2c+sterilisation%2c+and+abortion+act_resel_25_h&p=1&sr=1

A copy of the proposed abortion law can be accessed here – http://legislation.govt.nz/bill/government/2019/0164/latest/LMS237550.html

A parliamentary transcript of the first reading of the proposed abortion law can be accessed here – https://www.parliament.nz/en/pb/hansard-debates/rhr/combined/HansDeb_20190808_20190808_12

The official government guide to preparing a submission to the Parliamentary Select Commission can be accessed here – https://www.parliament.nz/en/pb/sc/how-to-make-a-submission/

An additional submission guide from Choose Life is available here – https://www.chooselife.org.nz/lovethemboth/

Real life experiences and concerns about abortion are available here – https://www.wedeservebetter.org.nz/

Concerns about abortion are available here – http://voiceforlife.org.nz/

Current and historical statistics about abortion in Aotearoa New Zealand are available here – https://www.stats.govt.nz/information-releases/abortion-statistics-year-ended-december-2018