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.
1. A Road Map to Abortion Law Reform May 2010. For a copy of the report email the Auckland Women’s Health Council at firstname.lastname@example.org
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.
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.”
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.
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.
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.
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.
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
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