Abortion

REFORMING NEW ZEALAND ABORTION LAWS

There is little disagreement that the Contraception, Sterilisation and Abortion (CS&A) Act of 1977 needs to be overhauled. Those on both sides of this never-ending and uncompromising debate want the law changed. The Abortion Supervisory Committee that oversees the Act and reports directly to Parliament has repeatedly called for reforms to the CS&A Act in its annual reports, but to no avail. No political party is brave enough to even start the conversation and open public debate due to the strong feelings on both sides, and the harassment that inevitably seems to follow from the Right to Life society.

Decriminalisation of Abortion Law

The CS&A Act and the Abortion Supervisory Committee that oversees the Act are administered by the Ministry of Justice as the Act comes under the Crimes Act. Abortion is a woman’s health issue, not a crime. Abortion services should therefore be overseen by the Ministry of Health. This would decriminalise abortion and enable improvements to abortion services to be made more effectively.

New Zealand is not the only country facing this issue. In October 2008 the Abortion Law Reform Act was passed in Victoria, Australia, bringing the law relating to termination of pregnancy into line with existing clinical practice and community attitudes. The passing of the Abortion Law Reform Act was achieved after a long campaign by abortion law reform advocates in Victoria who ran an informed and educative campaign focused on political lobbying. In May 2010 Lynda Williams attended the 6th Australian Women’s Health Conference held in Hobart and spoke with some of Victoria’s abortion law reform campaigners. More information on how the law reform was achieved in Victoria and the lessons for New Zealand can be found in a report “A Road Map to Abortion Law Reform” written after the conference. (1)

Cost of NZ’s abortion service

The current abortion service is costing NZ taxpayers over $5 million a year in consultant fees. There are 176 certifying consultants on the ASC’s list of practitioners who act as consultants for women considering a termination of pregnancy. The CS&A Act requires that a woman see two certifying consultants who must both agree that she has legal grounds for an abortion. (In 2009 17,230 of the 17,550 abortions were granted on the grounds that there was a danger to the mental health of the mother.) Each consultation costs $135.

This system is long past its use-by date and is both cumbersome and unnecessarily costly. Whatever the reasons were in 1977 for establishing such a process, they no longer apply now. The money is needed to improve the quality of the service and to improve access to abortion services for women in rural areas who are currently not receiving timely access to services. It is time for change.

References

1. A Road Map to Abortion Law Reform May 2010. For a copy of the report email the Auckland Women’s Health Council at awhc@womenshealthcouncil.org.nz

 CONSUMER GROUP UNDER ATTACK FROM MEMBER OF RIGHT TO LIFE SOCIETY

A member of the Right to Life Society is threatening to take the Maternity Services Consumer Council (MSCC) to the Human Rights Commission and to lodge a complaint with the office of the Health & Disability Commissioner over their Screening during Pregnancy: Your Choice pamphlet produced by the Council. Informing women of their choices around all antenatal screening tests, including screening for Down syndrome and other conditions, is, according to the Right to Life society, a crime against humanity as well as being in contravention of various United Nations conventions.

In a long email sent on 5 January 2011 Mike Sullivan questioned the MSCC about an article on the MSCC’s website advising women about changes the Ministry of Health had introduced to Down syndrome screening. The Right to Life society considers screening for Down syndrome “constitutes genocide, which is a crime against humanity and a violation of the UN Convention on the Prevention and Punishment of the Crime of Genocide.“ The society has already taken the Ministry of Health to the Human Rights Tribunal on this very issue and having lost the case, they are now in the process of appealing the Tribunal’s decision.

The MSCC replied to Mr Sullivan’s email, stating that the MSCC is strongly supportive of women making informed choices around screening, and had written a pamphlet on the issue. The Council also advised him that LMC’s are required to offer women all of the screening tests that the Ministry of Health wishes them to offer, and quoted the relevant section of the 2007 Maternity Notice. The emails from Mr Sullivan continued and quickly became harassing and overbearing. His questions suggested that he was unaware that the MSCC is a consumer group. Upon being sent a copy of the MSCC’s Screening during Pregnancy: Your Choice pamphlet, he then sent another email demanding that the MSCC change the wording in the section in the pamphlet on amniocentesis.

When the MSCC politely advised Mr Sullivan that the tone of his emails was not proving to be at all constructive, and asked him to stop emailing the Council about the issue, he immediately responded with a threat to “pursue a formal complaint with the Health and Disability Commissioner for a breach of Right 2 of the Code.” Right 2 states that every consumer has the right to have services provided in a manner that respects the dignity and independence of the individual.

Ken Orr, the editor of the Right to Life society’s newsletter, then phoned the MSCC and began by unctuously commending the Council for its work in “protecting” mothers and babies. He began asking questions about where the MSCC got its funding and what funding it receives from the Ministry of Health. At this point the MSCC advised Mr Orr that he could obtain such information from both the Charities Commission website and the MSCC’s own website and ended the conversation. Mr Orr subsequently sent a letter to the Council written in the by now very familiar haranguing tone with the usual demand for compliance with his wishes.

What is it with these men who think they are entitled to bully organisations into producing information that they agree with or into removing health services that they don’t agree with?

The MSCC has taken independent legal advice and is following that advice, which was to ignore any further correspondence from members of the Right to Life society. It is hard to imagine how the Screening during Pregnancy: Your Choice pamphlet is in breach of Right 2 of the Consumers’ Code of Rights. It is also unlikely that having lost the first attempt to win a case against the Ministry of Health in the Human Rights Tribunal, Mike Sullivan will succeed with an attempt to make a case against the MSCC in the same forum.

What is of concern to all those working for women’s sexual and reproductive rights is that men like Mike Sullivan and Ken Orr feel free to indulge in haranguing and harassing women’s groups in an effort to get them to change their views and do as they are told.

February 2011

ABORTION SUPERVISORY COMMITTEE REPORT

The Abortion Supervisory Committee’s 33rd annual report to Parliament for the year ending 30 June 2010 has been published. In 2009 the Abortion Supervisory Committee (ASC) changed the format of these reports and further statistics are available on the Statistics NZ website – www.stats.govt.nz

In 2009 the ASC launched a standardised referral system for use by primary care providers when consulted by women seeking a termination of pregnancy and in 2010 they spent time encouraging uptake of the system around the country. The Committee also focused on the need for appropriate continuing medical education for counsellors working the area of pregnancy loss including abortion.

The report notes that the Committee continues “to be concerned about accessibility of services for women and believe it is unacceptable that women in some parts of the country have to travel long distances in order to access abortion services.”

Statistics

The total of induced abortions performed in 2009 was 17,550 compared with 17,940 in 2008 and 18,382 in 2007, a significant decline given the increasing population.

There has been a slight rise in the number of medical abortions in 2009 with the rate rising to 6.2% (1091) compared to 5% in 2008.

Women aged between 20-24 years accounted for 5332 of the abortions performed, with women aged 15-19 years accounting for 3873 abortions, and women aged between 25-29 years accounting for 3539 abortions. For the youngest age group in this table – young women/girls under 15 – there were 79 who had an abortion. These figures are similar to those from the previous year.

Contraception Used

A total of 9,517 women (54.2%) were not using any form of contraception, 4,867 (27.7%) were using condoms, 1,954 (11.1%) were using combined oral contraceptives, and 358 (2%) were using progesterone only contraceptives. A total of 220 women (1.3%) had used emergency contraception, 276 were using natural family planning (1.6%), 203 (1.2%) were using an intra-uterine device, and 114 (0.6%) were using depo provera injections.

The ASC notes that there has been no improvement in the proportion of women having an abortion who were not using any contraception at the time of conception and that contraceptive health education is obviously not being effective. The Committee wants to see the Ministry of Health to foster research into this important issue.

Ethnicity

The ethnicity graphs revealed that there were 10,113 abortions for European women, 4,131 abortions for Maori women, 2,892 for Asian women, 2,360 abortions for Pacific women, and 216 for Middle Eastern, Latin American and African women.

Lack of access

A graph on first trimester abortions by duration of pregnancy and residence of women reveals that women in Northland, Bay of Plenty, Hawkes Bay and Southland were least likely to be able to access a first-trimester abortion prior to 10 – 11 weeks.

Research

The report notes that peer-reviewed, funded research into abortion in New Zealand appears to be increasing, and that there are many issues that need to be explored, for example information from Epsom Day Unit revealed that one third of women accessing abortion have a history of domestic violence.

Consultant fees

The report reveals that the fees paid to the 176 certifying consultants totalled $4,848,579 (ext GST) in the year ended 30 June 2010.

High Court Proceedings

This year’s report makes no mention of the ongoing court battle instigated by the Right to Life group in 2005. The latest Appeal Court hearing took place in Wellington before Justices Chambers, Arnold and Stevens on 5–6 October 2010, after having been postponed from May 2010 which is probably why the report makes no mention of it. The judges’ decision has yet to be released.

Further information on the history of te legal proceedings is available at: www.alranz.org/RTLvASCcourtcase.htm

February 2011

ABORTION DECISION RESERVED

A High Court judge has reserved his decision on a bid for a declaration on the powers of the government-appointed Abortion Supervisory Committee.

The 20th July hearing before Justice Forrest Miller in the High Court at Wellington was the latest step in a four-year civil case taken by the anti-abortion group RIght to Life which sought clarification on the committee's powers, the lawfulness of abortions being carried out, and the right of the unborn child.

It had pursued the issue through the courts since May 2005, with the committee defending the claim. Following numerous appeals on evidence over three years, the case was heard before Justice Miller in April last year. Right to Life had complained that the committee had failed to properly interpret its powers under the Contraception, Sterilisation and Abortion Act so "full regard is given to the rights of unborn children."

The group said more information was required on the number of abortions being carried out on mental health grounds - about 98% of all abortions. It also sought to find if the committee had failed in its duty to ensure adequate counselling facilities were available.

In his judgment released last June Justice Miller found the committee could scrutinise consultants' decisions as part of its role in keeping the procedure for authorising abortions under review. He said the abortion law was being used more liberally than Parliament intended and the committee has misinterpreted is statutory powers. The committee should require better record-keeping from consultants and review the procedures for authorising abortions, the justice said.

Despite this, the law did not recognise a foetus' right to life, Justice Miller said.

The committee appealed against the decision and Right to Life cross-appealed, but the Court of Appeal dismissed both parties appeals in May, saying the case was outside its jurisdiction. The parties were told to return to the High Court for a declaration on what powers Parliament had intended for the committee.

During submissions in court Right to Life's counsel, Peter McKenzie QC, said it was important that Justice Miller make declaratory orders recognising the committee's role as advocates for the unborn child, but the judge questioned whether that was the committee's role.

The committee's lawyer, Cheryl Gwyn, acknowledged it had misapprehended its statutory powers but said declarations were not needed as Justice Miller's June 2008 judgment "could be left to speak for itself."

Right to Life's spokesman Ken Orr said the ideal outcome of the case wold be for Justice Miller to make a declaratory order stating a serious concern about the lawfulness of many abortions in New Zealand.        

21 July 2009

ABORTION IN NEW ZEALAND 1978 - 2008
At the Abortion Providers conference held in Auckland in March 2008 Dr Margaret Sparrow gave a presentation on the history of access to legal abortion in New Zealand. As this year represents a significant milestone in the fight for a safe legal system which recognised a woman’s right to terminate her pregnancy, her presentation was a timely reminder of the efforts it took to get to where we are now.

New Zealand law regarding abortion was originally based on the 1861 English law which made it an offence for a woman to procure her own abortion as well as for anyone else to procure an abortion. In 1893 New Zealand passed the Criminal Code Act which reduced the penalty for the woman to a maximum of seven years imprisonment and life for others.

When the UK changed its legislation in 1967 to reflect a more liberal stance towards abortion New Zealand did not follow suit. Instead a further ten years went by after which NZ set up a completely new system.

In the early 1970s women were being referred to two Australian states (Victoria and New South Wales) if they wanted a legal abortion, following court cases which gave a more liberal interpretation of state laws. In May 1974 the Auckland Medical Aid Society (AMAC) opened its doors and began providing a private abortion service for women. Dr Wall’s Hospitals Amendment Bill was introduced in 1974 in attempt to restrict abortions to public hospitals. It was subsequently passed in May 1975 but included an amendment extending operations to licensed hospitals. During this time AMAC transferred its services to the Aotea Private Hospital.

The law was subsequently ruled invalid because it related to the wrong section of the Crimes Act.

A police raid on the AMAC clinic took place in September 1974 that among other things resulted in Dr Woolnough being charged with 12 counts of procuring illegal abortions. Dr Woolnough was acquitted, and a subsequent High Court appeal failed to overturn the not guilty verdict.

With feelings now running high on both sides of the debate a Royal Commission of Inquiry on Contraception, Sterilisation and Abortion was established by the Labour government of the day. The six-member commission was appointed in June 1975 and deliberated for 21 months. Its report was published in March 1977. The National government then introduced the Contraception, Sterilisation and Abortion Bill in August that same year. It was passed on 15 December 1977 and came into effect on 1 April 1978.

However, the new legislation proved unworkable. The Aotea clinic closed its doors for the next 20 months and most women found themselves once again having to travel to Australia for an abortion, this time with the aid of a nationwide organised network that sprang into existence called Sisters Overseas Services. During this period SOS provided New Zealand women with abortion information, referrals, counselling and access to safe and legal abortion in Australia.

Significant amendments to the new law were made in July 1978 and the system that was put in place still exists to this day. Numerous reports to government by the Abortion Supervisory Committee over the past decade have referred to the need to revise and update the CS&A Act but to no avail. However, despite the faults in the system it has been a very safe system for women. In 1980 there around 6,000 abortions and the numbers have risen to almost 18,000 a year over the past few years. There have been no maternal deaths during this time.

Dr Sparrow ended her presentation saying that New Zealand’s abortion laws are outdated. Consultants’ fees are costing the health system $5.5 million per year. Abortion should be decriminalised, she said, adding that there is no need for specified grounds, or for certifying consultants. “Abortion is a woman’s health issue, and safe legal abortion is a woman’s right.”

However, no government has thus far been prepared to risk overhauling the AS&A Act. The threat of losing the current access to safe legal abortion along with having to deal with the anti-abortion lobby is too great.

ABORTION IN PACIFIC CULTURES
There were three presentations at the conference on attitudes and practices towards abortion in the Pacific. Two were by a Pacific woman working in South Auckland and a Pacific woman working at AMAC. A third presentation was by a New Zealander working at the Marie Stopes clinic in Fiji.

Both the Pacific women referred to how the veil of secrecy surrounding anything to do with sex contributes to the increasing rates of abortion in young Pacific women. Denial, a lack of understanding about contraception and sexual health and an unwillingness to talk about sex result in young Pacific women being very vulnerable. The power and control of the church is also a major factor.

In Fiji where abortion is illegal unsafe abortion practices are rife. Public debate on the issue is yet to happen. Prosecutions have been brought but not guilty verdicts returned.

Because of the vague framework that abortion operates in, traditional methods of trying to terminate a pregnancy are still in use today. They include various herbal concoctions, inserting a cassava stem up into the uterus, stomach massages using the feet, and witch doctor remedies. All are unsafe, and sometimes result in the death of the woman. In this kind of environment women are vulnerable to exploitation and to unsafe practices some of which result in botched abortions.



ABORTION SUPERVISORY COMMITTEE REPORT 2007-2008
The Abortion Supervisory Committee’s 31st annual report to Parliament for the year ending 30 June 2008 is a brief document outlining the activities of the new committee since the belated appointments of new members in June 2007. The members of the ASC committee are Professor Linda Holloway, Dr Rosy Fenwicke and Mrs Patricia Allan.

This year’s report comments that “adequate resourcing has enabled the ASC to put in place a work programme to address issues concerning abortion services in New Zealand and in particular work on examining the pathway for the abortion process. The work programme began in August 2007, shortly after the new members of the ASC were appointed.”

This year’s report is in a different format and begins with a report on the ASC’s activities for each of its functions listed under section 14 of the Act.

Standards Committee
The ASC has appointed a Standards Committee to produce a Standards Document for the Provision of Abortion Services in New Zealand 2008. Once the document has been produced it will be available to DHBs, professions and the public. The aim is for this to serve as a useful guide to the equitable provision of quality abortion services and it will be updated regularly to take into account developments in the field.

This Committee has also been asked to look at current and future training and workforce issues.

Statistics
The total of induced abortions performed in 2007 was 18,382, compared with a total of 17,934 abortions in 2006.

Women aged between 20-24 years accounted for 5445 (37.2 per 1000 women in this age group) of the abortions performed, with women aged 15-19 years accounting for 4173 abortions (26.6 per 1000 women in this age group), and women aged between 25-29 years accounting for 3574 abortions (26.2 per 1000 women). For the youngest age group in this table – young women/girls under 15 – there were 104 who had an abortion. These figures are very similar to those from the previous year.

Contraception Used
A total of 9,693 women were not using any form of contraception, 5,236 were using condoms, 2,083 were using combined oral contraceptives, and 398 were using progesterone only contraceptives. A total of 212 women had used the morning after pill, 328 were using natural family planning, 144 were using depo provera injections, and 231 were using an intra-uterine device.

Ethnicity
There were no tables or information on ethnicity in this year’s report. The report states: “we have chosen not to include some tables which have been included in previous years because they have limited relevance without deeper analysis.“

The ASC plans to provide statistical information in a different format for its next report – to present figures in a more user-friendly format and provide some statistical commentary.

Lack of access
As part of the ASC’s schedule of visits to licensed institutions around the country, the committee has become aware that there are many women in New Zealand who are not able to access locally some or all abortion and post-abortion contracep-tive services.

The report states: “The ASC is working with DHBNZ in its development of a paper on Services for Termination of Pregnancy. When finalised, the paper will recommend the requirements for the equitable provision of abortion services to women and families throughout New Zealand, given that abortion has been identified as a core service.”

Consultant fees
The report reveals that the fees paid to the 195 certifying consultants totalled $5,048,096 in the year ended 30 June 2008.

High Court Proceedings
The Right to Life organisation sought a judicial review of the ASC’s powers and functions under the Contraception, Sterilisation, and Abortion Act 1977. The resulting High Court decision was that abortion law neither confers nor recognises a legal right to life for the unborn child. It also dismissed Right to Life’s challenges to the way the ASC has interpreted its obligations in relation to counselling services provided to women under the Act.

The report states: “The Court held, however, that there is reason to doubt the lawfulness of many abortions authorised by certifying consultants and that the ASC has misinterpreted its functions and powers under the abortion law, reasoning incorrectly that the Court of Appeal decision in Wall v Livingston means it may not review or scrutinise the decisions of certifying consultants.” The ASC has appealed the High Court’s decision to the Court of Appeal. The Right to Life has cross-appealed.

Further information can be found at www.abortion.gen.nz