Gordon Campbell on the conflicts over abortion

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March 15th, 2017

First published on Werewolf

Tomorrow morning, the Abortion Supervisory Committee (ASC) will appear at Parliament to make the case that an abortion law passed 40 years ago may now need to be reviewed and modernised, in the light of 21st century attitudes and practices. You’d think that this would be a no-brainer. Yet the same kind of social regressives who framed and passed the original 1977 abortion legislation – and they now include the current Prime Minister – are saying there’s no problem, move on.

Lets make it really simple for the MPs. The process of review and change could easily proceed in two separate stages. Step one: abortion could and should be de-criminalised via a simple parliamentary process whereby abortion is taken out of the Crimes Act, and put where it belongs – into the Health Act, as a medical procedure between women and their medical practitioners, at the very least. Arguably, given the availability of chemical options in the 21st century, it can and should be regarded as a choice for women alone. Either way, this is a medical procedure, not a crime.

Meaning: de-criminalisation can readily be achieved while Parliament revisits the grounds for obtaining an abortion, which is currently managed via a process involving two certifying consultants. The certification part of the picture is also in need of review, and updating. (eg abortion is not available on an equal basis, in all regions of New Zealand. The extent of such failures in equity re abortion services would be one of the purposes of having a comprehensive parliamentary review.)

But back to the de- criminalisation process for a moment. In Britain this week, the process of de-criminalising abortion was successfully put on the rails:

MPs have won the right to introduce a bill to Parliament which would decriminalise abortion for the first time by repealing a law that dates back to Victorian times. A ten-minute rule bill introduced by Diana Johnson, the Labour MP for Hull North, sought permission of the House to change two sections of a law passed in 1861, before women had the vote. It succeeded by 170 votes to 142, a margin of 32.

Johnson argued that the law was unfair and inappropriate in an age when women can and will access abortion pills by post because they want to be able to terminate their pregnancy in the privacy of their own home. As the law stands, doing so is technically punishable by life imprisonment under sections 58 and 59 of the 1861 Offences Against the Person Act – both for the woman and for anyone, including a doctor, who helps her.

Something similar could readily be done here, if the political will to do so existed. Earlier this year, the Abortion Law Reform Association (ALRANZ) released poll results that showed just how much Parliament is lagging behind public opinion on abortion. Those poll results have been usefully collated by the NZ Herald in this fashion:

Respondents were asked if they supported abortion being legal in a number of situations. The results were:

• Pregnant woman is likely to die without an abortion
Legal: 77 per cent
Illegal: 5 per cent
Unsure/refused: 18 per cent

• Pregnant woman’s health is likely to be permanently harmed without an abortion
Legal: 76 per cent
Illegal: 6 per cent
Unsure/refused: 18 per cent

• Fetus has no chance of survival
Legal: 76 per cent
Illegal: 6 per cent
Unsure/refuse: 18 per cent

• Pregnancy is the result of rape
Legal: 73 per cent
Illegal: 8 per cent
Unsure/refused: 18 per cent

• Pregnancy is a result of birth control failure
Legal: 55 per cent
Illegal: 24 per cent
Unsure/refused: 21 per cent

• Pregnant woman can’t afford to have another child
Legal: 54 per cent
Illegal: 27 per cent
Unsure/refused: 20 per cent

There are no grounds for complacency. What the age of Trump has shown is that women cannot continue to rely on past nod-and-wink tolerance as a reliable safeguard, in future. Only a few years ago, a court challenge mounted by the Right To Life movement in 2012 to the current abortion certification process failed in the Supreme Court by only the narrowest of margins, in a 3-2 split decision.

As many observers have pointed out, the 1977 legislation is a conservative law on the books that has been interpreted liberally in practice. It may not always be interpreted liberally in future. Currently for instance, the law does not allow the validity of the decisions made by certifying consultants to be challenged in court. This safeguard rests however on a single precedent set in 1982 – Wall v Livingston. Two of the justices who upheld Wall v Livingston in the 2012 proceedings – Tipping and Blanchard – have since retired. As Alison McCulloch wrote in her Werewolf article in 2012:

Right to Life’s action took aim at a fault line running through the abortion regime in New Zealand, and until the underlying tension between a liberal abortion practice and a conservative abortion law is resolved, there will be more cases, more challenges, more threats to abortion access and New Zealand will fall farther behind than it already has in providing timely abortion care. A 2010 studyshowed that compared to other developed countries, abortions are accessed much later in New Zealand, increasing the risk of complications. And though the study didn’t take aim at the law, the cumbersome approval procedures it demands are clearly the major factor in delaying access to abortion.

Chemical abortion, self administered, is one way forward through the current impasse. McCulloch’s 2012 survey of the chemical abortion situation is available here.

Last year, the eighth report by New Zealand to the UN Committee on the Elimination of Discrimination Towards Women (CEDAW) noted that:

137. Abortion rates recently hit a 17 year low (down to 14.4 per 1000 women aged 15–44 years). A recent High Court ruling regarding the legal grounds for early medical abortions may pave the way for greater availability of this less invasive procedure.

So let’s take stock: a cumbersome law that delivers abortion services inequitably throughout New Zealand. A conservative law that criminalises abortion, and relies on subterfuge to operate in the liberal fashion that the public expects, and demands. Abortion procedures being partially abetted and superseded by chemical agents, self administered, by those able to access and afford the pills involved. And a Women’s Minister and deputy PM busily chirping that she’s ‘pro-choice’ to liberal voters in Auckland while otherwise sitting on her hands. Yep, nothing to see here, move on.

Footnote: Since the PM and the deputy PM are in conflict over abortion, should this be taken as one of those conflicts that if we were talking about Labour and the Greens would be seen as a sign of innate instability?