Abortion: all agree the law is an ass

There were 18,380 abortions in New Zealand in 2007. The rate (20.1 abortions per 1000 women in the 15-44 age group) is high compared to other countries, putting us on a par with Australia, the United States and Sweden.

Unlike those countries, we have what has been described as "one of the most restrictive pieces of abortion legislation in the Western world" - contained in the Crimes Act and the Contraception, Sterilisation and Abortion Act passed in 1977.

Yet despite our draconian law - abortion is a crime unless it is authorised by two certifying consultants - we have one of the highest abortion rates in the world. What gives?

On June 9 2008, High Court Justice Forrest Miller gave voice to what some had suspected for some time - there is "reason to doubt the lawfulness of many abortions authorised by certifying consultants" in New Zealand.

While Justice Miller's judgment in the long running Right to Life New Zealand versus The Abortion Supervisory Committee sounds like a bombshell, it's actually more of a damp squib.

Two weeks ago, three Appeal Court judges sent the case back to the High Court, saying until Justice Miller has made declarations about what more the Abortion Supervisory Committee should be doing to comply with the law, there was nothing to appeal against. The judges also pointed out that since the committee was set up by parliament, the constitutional matters in question should be dealt with by parliament and not the courts.

While it remains to be seen what sort of declarations Justice Miller will make, what is highly likely is the moment they are made, both the declarations and the judgement will be appealed. And whatever the Appeal court decides, the case will almost certainly be taken on to the Supreme Court. A legal merry-go-round costing plenty and going nowhere.

Finding a resolution here seems impossible. Abortion is an issue that divides society into irreconcilable camps - those who want rights for the unborn child and those who want the mother's right to choose.

But while American president Barack Obama is attempting the impossible in trying to find common ground in the abortion debate that has deeply divided the Unites States, our Government is showing no inclination to enter this vexatious territory.

Despite his "powerful misgivings about the lawfulness of many abortions", Justice Miller notes that "Parliament appears untroubled by the state of the abortion law" and the previous calls for reform have gone unheeded.

Watching Obama's ethical gymnastics you can see why. Abortion, says Obama, is not just about a woman's freedom to choose. It is also a moral and ethical issue that affects women, their families, and society.

In a speech this month at the University of Notre Dame, Obama said the key role for government on this issue was to help women avoid an unwanted pregnancy.

"When we open up our hearts and our minds to those who may not think precisely like we do or believe precisely what we believe, that's when we discover at least the possibility of common ground. That's when we begin to say, 'Maybe we won't agree on abortion, but we can still agree that this heart-wrenching decision for any woman is not made casually. It has both moral and spiritual dimensions'."

Fine words. Meanwhile in New Zealand, despite both factions being clearly unhappy with the state of our abortion law, and Justice Miller's concerns that the law is being used more liberally than Parliament intended, our politicians speeches are much shorter.

"The Government has no current plans to reform the abortion laws," says Justice Minister Simon Power in reply to the issues raised by Justice Miller.

There are some arguments for doing nothing - the law, despite being outdated, does actually allow women to get abortions, even if they do have to go through a cumbersome, some say demeaning, process that sees most of them granted an abortion because of the danger to their mental health.

On the other hand, the law is doing the opposite of what it set out to do - to provide restrictions on abortions. As Right to Life argued before Justice Miller, the effect of the law is that "New Zealand has abortion on request."

The irony of the situation is that both factions in debate actually agree on one point - the law is an ass.

The Abortion Supervisory Committee, charged with overseeing the process of abortion law, disagrees.

In a letter to all certifying consultants following the Court of Appeal decision, committee chair Linda Holloway said statements to the effect that abortions were available in New Zealand "on demand" or that "if a woman wishes to have an abortion she will be able to get one" were "incorrect and unfounded".

She said the committee "is confident that certifying consultants have been and are continuing to act in good faith and to apply the law as it is contained in Crimes Act and the Contraception, Sterilisation and Abortion Act."

Holloway also reminded the consultants that the litigation brought by Right to Life was directed towards the role and actions of the committee.

"The litigation does not in any way alter your obligations as certifying consultants under the legislation, or your obligations to your patients as a medical practitioner."

Abortion Law Reform Association NZ (Alranz) president Margaret Sparrow says there is "a general feeling that women can get abortions" but that the system is very cumbersome, complicated and far from perfect. Not to mention expensive. For the year ending June 2008, the fees paid to certifying consultants totalled $5,048,096.

The law has also failed to properly adapt to advances in medical abortions such as mifepristone, otherwise known as the French abortion pill, which although it has been available here since 2001 accounted for just 5 per cent of all abortions in 2007.

Sparrow says the slow uptake of medical, as opposed to surgical, abortions is partly due to the cumbersome requirements that women have to take the medication at licensed premises. In other countries such as Scotland and France where use of medical abortions is around 50 per cent, women are able, with proper oversight, to take the two-stage medication at home.

While certifying consultants say they are interpreting the law in good faith and genuinely believe that forcing a womanto go on with an unwanted pregnancy is not good for her mental health, Sparrow says she doesn't think the process is "quite honest".

Her ideal would be the decriminalising of abortion and a more streamline medical process of informed consent.

Sparrow is particularly concerned about the Victorian-like classification of why women should get an abortion - because of the threat to their mental health. The argument - as though women might succumb to some form of dangerous hysteria - is also used as a reason why women shouldn't get an abortion.

"The mental health fiasco is demeaning to women. What an insane choice. Go ahead and have the abortion and risk insanity according to anti-abortionists or don't have an abortion and risk insanity according to the doctors. Mad if you do and mad if you don't," wrote Sparrow in a newspaper opinion piece.

For Ken Orr of Right to Life, the immediate focus is on the declarations his organisation will be seeking from Justice Miller in the High Court in a one-day hearing expected to take place within the next five weeks.

"We hope the committee will be advised they have a statutory duty to hold accountable certifying consultants for the lawfulness of the abortions they authorise and that the committee has he right to seek reports from consultants on the pattern of authorisations," he says.

Based on what Justice Miller said in his judgment last year, Right to Life is hoping for a declaration that says the Abortion Supervisory Committee is obliged to make "please explain" requests of consultants as to why they're authorising 98 per cent of abortions on mental health grounds.

But it's easier said than done - immediately running up against issues of patient confidentiality and the scope of what the committee's powers are. "What we're endeavouring to do is have the law upheld as it was passed by Parliament in 1977," says Orr. "We believe the committee has that responsibility to ensure that we don't have abortion on demand because that's unlawful."

Right to Life members, he says, are committed to doing everything they can to ensure that unborn children in New Zealand get the full protection of the law - a law that he points out is also meant to protect the welfare and health of women.

"I don't think the community recognises just how women are being victimised so often by abortion - often it's not a choice for them, it's a choice of someone else and being coerced into it," says Orr. "I know of a number of women who have had abortions and suffered psychological damage."

Right to Life's ideal would be the removal of the mental health grounds for an abortion from the Crimes Act. But Orr accepts it's unlikely to happen because it's so widely accepted.

"The critical issue is the good faith of the doctor. The doctor has to really believe mental health is a problem, not just an excuse for doing an abortion."

Orr says Right to Life has spent more than $80,000 on its battle so far. He acknowledges the organisation's views are informed by a Christian perspective. "Many of our members would be Christian, but I would emphasise this is not a matter for Christians or Muslims or for Jews, it's a human rights issue and it should concern everybody in the community."

But while Right to Life appears to have made some headway in the Courts with regard to its arguments about the lawfulness of abortions, Justice Miller's judgement also delivered a setback to the organisation's key claim - namely whether the unborn child has status as a human being endowed with rights from conception.

Justice Miller found that our abortion law does not "protect the life of the unborn child and does not recognise a child as a person until it is born alive".

He also found that the New Zealand Bill of Rights, which recognises a right to life, does not apply to the unborn child.

Right to Life doesn't expect Justice Miller to declare the law on this front, but if he did, it would be a fundamental defeat.

QANTAS WINNER
Senior writer Chris Barton enjoyed outstanding success at the annual Qantas Media Awards.

He was judged overall winner in the Senior Newspaper Feature Writer category, winner of the Health, Medicine & Fitness category and winner of the Device Technologies Award for a column in the Technology & Science category.

To cap it off, he was named the Qantas Fellow to Wolfson College, Cambridge and will go to Britain next year.