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August 7, 2017 | by  | in News Splash |
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A Precarious Position: The State of Abortion Law in New Zealand

The current status of abortion in New Zealand law is a “fundamental breach of women’s human rights,” according to VUW lecturer and academic Ann Weatherall.

In New Zealand, access to abortion is governed by criminal law. The Crimes Act 1961 provides the legal grounds for abortion, and the Contraception, Sterilisation and Abortion Act 1977 covers abortion procedures and administration.

In practice, around 99% of abortions requested in New Zealand are authorised — however, the current legal framework makes abortion in New Zealand vulnerable to legal and political challenges.

While under the current system, “New Zealand women feel reasonably assured that if they want to end an unwanted pregnancy they can, […] all it would take is a slight political shift for it to tighten up and become that much harder,” according to Weatherall.

The Crimes Act allows abortion when the risk ‘‘that the continuance of the pregnancy would result in serious danger (not being danger normally attendant upon childbirth) to the life, or to the physical or mental health, of the woman or girl’’; ‘‘that there is a substantial risk that the child, if born, would be so physically or mentally abnormal as to be seriously handicapped’’; that the pregnancy is the result of incest or sex with a guardian; or if ‘‘the woman or girl is severely subnormal.”

After 20 weeks’ pregnancy, the only ground for legal abortion is ‘‘to save the life of the woman or girl or to prevent serious permanent injury to her physical or mental health.”

Rape, extremes of age, and socioeconomic factors are not grounds for a legal abortion in New Zealand.

Family Planning (FP) CEO Jackie Edmond told Salient that FP “believe the laws should be reviewed and changed,” describing them as “old, costly, and discriminatory.”

“Abortion shouldn’t even be in the Crimes Act — it’s a health issue, not a criminal issue,” explains Weatherall. She points to changes in technology, such as the ability for chemical abortions through the use of medication, which highlight the inappropriateness of governing the practice through criminal law.

Under the Contraception, Sterilisation and Abortion Act, a woman who seeks an abortion in New Zealand must gain the approval of two certifying consultant physicians. These physicians are delegated by the Abortion Supervisory Committee (ASC), which is appointed by the Governor-General.

This “direct line to Parliament,” according to academic Alison McCullough, “further highlights just how vulnerable the current system is.”

The Abortion Law Reform Association of New Zealand President, Terry Bellamak, told Salient, “the reason we currently have 99% of abortions being approved is that the ASC and the current certifying consultants have taken a broad view of the law. All it takes is a few changes in those positions for it to dramatically change.”

Under the current system, around 200 women are denied an abortion every year. It is unclear how many more women do not have the opportunity to access the services required to consult with a certified physician.

“If you live in more rural areas, it’s going to be much harder to get those certifying appointments. So there’s those very practical difficulties in the current law which makes it inequitable for poorer women, for women in rural areas, to access the services they need,” according to Weatherall.

Bellamak described the “hoops women have to jump through” with the current system of certified consulting physicians as “discriminating against those who are disadvantaged by geography and socioeconomic factors.”

“What if you live in rural New Zealand and your GP is a conscientious objector to abortion? How are you going to be referred to a consulting physician? I don’t think any woman should be thrown under the bus like that.”

In 2005, the Catholic anti-abortion organisation Right to Life launched a legal challenge against the way the ASC oversees the doctors who authorise abortions.

Right to Life argued in Court that parliament did not envisage the current practice — a broad interpretation of the legislation to approve most abortions — when it passed legislation regarding abortion in New Zealand. Right to Life sought to have the ASC impose a more restrictive regime of abortion approvals.

Although Right to Life ultimately lost the case in the Supreme Court in 2012, this action demonstrated the vulnerability in the framework governing abortion practices.

“[The case] brought into sharp relief how precarious it is in New Zealand. You don’t need to have much of an imagination to see that just a small shift would be required to tighten it up and make it much harder,” said Weatherall.

In March 2017 Prime Minister Bill English reiterated his position on abortion law reform, telling Q+A “I’m not [in favour of liberalising abortion law], and wouldn’t vote for legislation that did.”

The lack of political will to make a change is “frustrating,” according to Weatherall. “As long as women can get it, it’s seen as acceptable.”

“The rhetoric around women’s position in NZ society is that they have equal opportunity, that they have control over their reproduction, and so on. But a lot of the time, it is just rhetoric.”

Former Labour Party leader, Andrew Little, told Q+A that he supported a review of the system, agreeing that “it should not be in the Crimes Act.” However, the Green Party is the only political party to have developed a policy to that effect.

Green MP Jan Logie told Salient, “The Green Party supports the decriminalisation of abortion because we trust women to make decisions that are best for them and their whānau.”

Both Weatherall and McCullough were concerned about global shifts towards restricting women’s reproductive rights. In the US, the Tissue Disposal Mandate (TDM), passed on July 30, requires women in Arkansas to gain permission from a foetus’ father before getting an abortion.

TDM also requires both parents to agree on the details of the disposal of an aborted foetus prior to the procedure being carried out. This also applies in cases of rape and incest.

Pastor Kim Hammer, a Republican member of the Arkansas House of Representatives, who introduced the bill, said that its purpose was to “ensure the foetus is given a proper burial, not to give undue power to third parties.” A representative for the National Association for the Repeal of Abortion Laws disagreed, telling the Huffington Post that the intention of the bill is clearly to “make it harder for a woman to access basic health care by placing more barriers between a woman and her doctor.”

“There needs to be a political move forward to ensure that women’s rights are being protected,” explains Bellamak. “All it takes is a shift in the way the law is being interpreted to step backwards.”

“It’s kind of ironic that NZ is held up as being liberal and progressive in terms of women’s rights” said Weatherall. “Because you don’t have to scratch the surface very far to find that that’s not actually the case at all.”

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