KEY POINTS:
A judge has suggested the Abortion Supervisory Committee could dismiss doctors who are too liberal in permitting women to have abortions.
Justice Forrest Miller, of the High Court at Wellington, said that although the committee had this power it had never used it.
A woman who wants an abortion must obtain the consent of two "certifying consultants", doctors appointed by the committee, a Government body.
Justice Miller, in his verdict on a case brought by the Right to Life group, said New Zealand's abortion statistics and the committee's comments over the years "do give rise to powerful misgivings about the lawfulness of many abortions".
"They tend to confirm [former committee chairwoman] Dr [Christine] Forster's view that New Zealand essentially has abortion on request ... the crude abortion rate is comparable to that of Canada and the USA, in which women enjoy a constitutional right to abortion. Some consultants approve every request, and around 98 per cent of abortions are authorised on the mental health ground."
In section 187A of the Crimes Act, the permitted grounds for a woman or girl to have an abortion are that proceeding with the pregnancy would pose a serious danger to her life or physical or mental health; incest or sexual relations with a guardian; mental sub-normality; and serious foetal abnormality.
Justice Miller said the committee had often suggested in its reports that certifying consultants were not complying with section 187A or were applying it more liberally than Parliament had intended.
But Parliament appeared "untroubled" by the state of the abortion law, the judge said. "The committee's occasional calls for reform have gone unheeded."
The committee denied in court that New Zealand has abortion on request and argued that it had no power to oversee the clinical decision-making process and no function of ensuring consultants correctly applied the law on the permitted grounds of abortion.
But the judge said the committee had misinterpreted its powers. It was permitted to require consultants to report, omitting patients' names or addresses, on cases they had considered - for purposes including reviewing the law's operation and the appointment and dismissal of consultants.
He said the committee appointed certifying consultants for one-year terms and could dismiss them if it so chose. "So there is a mechanism - non-reappointment or removal - that the committee could use to ensure that the law is being applied properly in practice, without intervening in individual decisions. It has never dismissed a consultant."
But contrary to Right to Life's requests, the judge did not order the committee how to act, instead seeking further submissions from the parties on any declarations he might make. A spokeswoman for Crown Law, which represented the committee in court, said yesterday the question of whether it would appeal against the verdict was premature as no decisions had been made on how to proceed.
College of Obstetricians and Gynaecologists' spokeswoman Dr Gillian Gibson said certifying consultants were trusted to operate within the law and she expected they did so. Women's Health Action director Jo Fitzpatrick said abortion law should be reviewed to improve access for women.
Anti-abortion group Voice for Life said the judgment was an opportunity for Parliament and medical groups to examine how women were affected by abortion.
THE NUMBERS
* In 2006 there were 17,934 abortions in New Zealand.
* That was 231 abortions for every 1000 live births, stillbirths and abortions.
* Certifying consultants authorise about 99 per cent of formal requests for abortions.
* Around 98 per cent of approvals are on grounds of serious danger to the mental health of the girl or woman if her pregnancy was to continue.
ISSUE TOO HOT TO DEBATE
Labour and National are shying away from immediately debating abortion in the wake of Justice Forrest Miller's verdict.
An election is approaching and both major parties appear to prefer to put the issue to one side for a time.
Justice Minister Annette King said yesterday the litigation processes were not completed, and it would be premature to comment now.
"When they are, the Government will seek in-depth advice from Crown Law on the implications of the judgment," said Ms King.
Those implications would be "studied", she said.
A spokesman for National said the party's justice spokesman Simon Power would read the judgment, and nothing further would be said at this stage.
- Paula Oliver
