Abortion Decision Reserved in 4-year Civil Case – 2009

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