How We Propose to Update New Zealand’s Legislation on Abortion

Our abortion laws are old and not fit for purpose.

For example, the Contraception, Sterilisation, and Abortion Act 1977 was assented before the abortion pill, RU-486, was even invented. In order to use abortion medications, the method of dispensing the medication must be retro-fitted to our old legislation.

The law requires an abortion be given in a clinic. This means the two drugs that comprise a medical abortion must be given in a clinic, hours or even days apart. So in most cases the patient has to drive to the clinic twice, possibly hundreds of kms. For that patient, the most dangerous part of the abortion is the drive to and from the clinic.

Updating our Legislation: Canada Style

 This proposed legislation is modeled on the Canadian approach to abortion law. In Canada abortion is treated as the safe and common medical procedure it is. It is not regulated to any greater extent than other, similar medical procedures.

This means there are no restrictions in Canada with respect to gestational limits. This is not a problem, because late term abortions are wanted pregnancies that went awry. Medical necessity is the driver. The lack of restrictions mean there is no red tape, no bureaucracy to satisfy, and no hoops to jump through.

We prefer the Canadian solution for law reform in New Zealand. We believe it honours the bodily autonomy and moral agency of health care consumers, and saves money for the health system by not over-regulating a procedure that does not require such scrutiny.

The following sample legislation is a work in progress.

Sample Legislation Based on Canada

Reproductive Health Care Modernisation Bill 201x

Part 1—Preliminary

Purposes

The main purposes of this Act are—

(a) to bring New Zealand into compliance with its international obligations under the Convention to Eliminate Discrimination Against Women and the Convention on the Rights of People with Disabilities; and

(b) to reform law relating to sexual and reproductive health; and

(c) to amend the Crimes Act 1961—

(i) to repeal the provisions relating to abortion; and

(ii) to abolish the common law offences relating to abortion; and

(d) to amend the Contracception, Sterilisation, and Abortion Act 1977 –

(i) to repeal the provisions relating to abortion

Commencement

This Act commences on the day after the day on which it receives the Royal Assent.

Interpretation

In this Act—

abortion means intentionally causing the termination of a woman’s pregnancy by—

(a) using an instrument; or

(b) using a drug or a combination of drugs; or

(c) any other means;

health practitioner has the meaning given in the Health Practitioners Competence Assurance Act 2003

medical practitioner has the meaning given in the Health Practitioners Competence Assurance Act 2003

health profession has the meaning given in the Health Practitioners Competence Assurance Act 2003

woman means a person whose bodily organs include a uterus

Repeal the following:

Crimes Act 1961

• s 182A
• s 183
• s 186
• s 187
• s 187A

Contraception, Sterilisation, and Abortion Act 1977

• s 10
• s 11
• s 12
• s 13
• s 14
• s 15
• s 16
• s 17
• s 18
• s 19
• s 20
• s 21
• s 22
• s 23
• s 24
• s 25
• s 26
• s 27
• s 28
• s 29
• s 30
• s 31
• s 32
• s 33
• s 33A
• s 34
• s 35
• s 36
• s 37
• s 38
• s 39
• s 40
• s 41
• s 42
• s 43
• s 44
• s 45
• s 46

Add the following:

Health Practitioners Competence Assurance Act 2003

Add ability of any health care practitioner to provide sterilisation with the consent of the patient

• Add ability of any health care practitioner to provide contraception

• Add the ability of anybody at all to supply accurate information about contraception, sterilisation, and abortion. If inaccurate information intentionally supplied, it’s an offence

Medicines Regulations 1984

• All pharmacies must have one pharmacist on staff willing to dispense all medicines without claiming conscientious objection whenever the pharmacy is open

• For each instance of a health care consumer unable to purchase any medicine the pharmacy carries because a pharmacist refuses to sell because the pharmacist claims to conscientiously object, and the health care consumer meets all legal and regulatory requirements such that the pharmacist would have been able to dispense the medicine if not for the conscientious objection, the pharmacy shall be fined $1000

Crimes Act 1961

Abortion—Abolition of common law offences

Any rule of common law that creates an offence in relation to procuring a woman’s miscarriage is abolished.

Updating our Legislation: Victoria, Australia Style

This proposed legislation is modeled on abortion legislation in the state of Victoria in Australia. It is our second choice for law reform in New Zealand because the law, while it improves on the present legal regime, still overregulates a safe and common medical procedure. This has the inevitable effect of stigmatising necessary health care.

Sample Legislation Based on Victoria, Australia

Reproductive Health Care Modernisation Bill 201x

Part 1—Preliminary

Purposes

The main purposes of this Act are—

(a) to bring New Zealand into compliance with its international obligations under the Convention to Eliminate Discrimination Against Women and the Convention on the Rights of People with Disabilities; and

(b) to reform law relating to sexual and reproductive health; and

(c) to regulate health practitioners providing reproductive health care; and

(d) to amend the Crimes Act 1961—

(i) to repeal the provisions relating to abortion; and

(ii) to abolish the common law offences relating to abortion; and

(iii) to make it an offence for an unqualified person to perform an abortion; and

(iv) to amend the definition of serious injury to include the destruction of a foetus other than in the course of a medical procedure.

Commencement

This Act commences on the day after the day on which it receives the Royal Assent.

Interpretation

In this Act—

abortion means intentionally causing the termination of a woman’s pregnancy by—

(a) using an instrument; or

(b) using a drug or a combination of drugs; or

(c) any other means;

health practitioner has the meaning given in the Health Practitioners Competence Assurance Act 2003

medical practitioner has the meaning given in the Health Practitioners Competence Assurance Act 2003

health profession has the meaning given in the Health Practitioners Competence Assurance Act 2003

woman means a person whose bodily organs include a uterus

PART 2—ROLE OF HEALTH PRACTITIONERS

Termination of pregnancy by medical practitioner at not more than 24 weeks

A medical practitioner may perform an abortion on a woman who is not more than 24 weeks pregnant.

Termination of pregnancy by registered medical practitioner after 24 weeks

(1) A medical practitioner may perform an abortion on a woman who is more than 24 weeks pregnant only if the medical practitioner—

(a) reasonably believes that the abortion is appropriate in all the circumstances; and

(b) has consulted at least one other medical practitioner who also reasonably believes that the abortion is appropriate in all the circumstances.

(2) In considering whether the abortion is appropriate in all the circumstances, a medical practitioner must have regard to—

(a) all relevant medical circumstances; and

(b) the woman’s current and future physical, psychological and social circumstances.

Supply or administration of drugs by [pharmacist or nurse]—at not more than 24 weeks

A pharmacist or nurse who is authorised under the Medicines Act 1981 to supply a drug or drugs may administer or supply the drug or drugs to cause an abortion in a woman who is not more than 24 weeks pregnant.

Supply or administration of drugs by pharmacist or nurse—more than 24 weeks

(1) A medical practitioner may, in writing, direct a pharmacist or nurse, who is employed or engaged by a hospital, to administer or supply a drug or drugs to cause an abortion in a woman who is more than 24 weeks pregnant only if the medical practitioner—

(a) reasonably believes that the abortion is appropriate in all the circumstances; and

(b) has consulted at least one other medical practitioner who also reasonably believes that the abortion is appropriate in all the circumstances.

(2) In considering whether the abortion is appropriate in all the circumstances, a medical practitioner must have regard to—

(a) all relevant medical circumstances; and

(b) the woman’s current and future physical, psychological and social circumstances.

(3) A pharmacist may administer or supply a drug or drugs to cause an abortion in a woman who is more than 24 weeks pregnant only if the pharmacist is employed or engaged by a hospital and only at the written direction of a medical practitioner.

(4) A nurse may administer or supply a drug or drugs to cause an abortion in a woman who is more than 24 weeks pregnant only if the nurse is employed or engaged by a hospital and only at the written direction of a medical practitioner.

***(5)In this section hospital means a public hospital, private hospital or day procedure centre within the meaning of the [Health Services Act 1988].***

***we want the same meaning, not sure of the Act to reference

Obligations of health practitioner who has conscientious objection

(1) If a woman requests a health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must—

(a) inform the woman that the practitioner has a conscientious objection to abortion; and

(b) refer the woman to another health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion within 24 hours

(c) book an appointment for the woman with another health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion within 24 hours

(d) not charge payment for any consultation in which the health practitioner refuses any service on the basis of a conscientious objection

(2) Subsection (1) does not apply to a practitioner who is under a duty set out in subsection (3) or (4).

(3) Despite any conscientious objection to abortion, a medical practitioner is under a duty to perform an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman.

(4) Despite any conscientious objection to abortion, a nurse is under a duty to assist a medical practitioner in performing an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman.

PART 3REPORTING REQUIREMENTS

Records of abortions

(1) Every health practitioner who performs an abortion shall make a record thereof and shall, within one month after performing that abortion or other procedure, forward a copy of the record to the Director-General.

(2) No such record shall give the name or address of the patient

10 Director-General to produce annual report

(1) Without limiting section 43 of the Public Finance Act 1989, the Director-General shall in each year give to the Minister of Health a report on abortions performed in New Zealand.

(2) The Minister of Health shall lay a copy of the report before the House of Representatives not later than the 12th sitting day of the House of Representatives after the date on which the Minister receives the report.

Repeal the following:

Crimes Act 1961

• s 182A
• s 183
• s 186
• s 187
• s 187A

Contraception, Sterilisation, and Abortion Act 1977

except: move sections 5 – 9 to Health Act 1956

Add the following:

Health Practitioners Competence Assurance Act 2003

• Add ability of any health care practitioner to provide sterilisation with the consent of the patient.

• Add ability of any health care practitioner to provide contraception

• Add the ability of anybody at all to supply accurate information about contraception, sterilisation, and abortion. If inaccurate information intentionally supplied, it’s an offence

Medicines Regulations 1984

• All pharmacies must have one pharmacist on staff willing to dispense all medicines without claiming conscientious objection whenever the pharmacy is open

• For each instance of a health care consumer unable to purchase any medicine the pharmacy carries because a pharmacist refuses to sell because the pharmacist claims to conscientiously object, and the health care consumer meets all legal and regulatory requirements such that the pharmacist would have been able to dispense the medicine if not for the conscientious objection, the pharmacy shall be fined $1000

Crimes Act 1961

• Add the following definitions to the interpretation section:

• abortion has the same definition as in the Reproductive Health Care Modernisation Act

• medical procedure in context of serious injury definition means

• an abortion performed by a registered medical practitioner in accordance with the Reproductive Health Care Modernisation Act; or

• the administration or supply of a drug or drugs by a pharmacist or nurse in accordance with the Reproductive Health Care Modernisation Act to cause an abortion;

• serious injury includes—

• a combination of injuries; and

• the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm;

• Add the following sections:

Abortion performed by unqualified person

(1) A person who is not a qualified person must not perform an abortion on another person.
             Penalty: Level 5 imprisonment (10 years maximum).

(2) A woman who consents to, or assists in, the performance of an abortion on herself is not guilty of an offence against this section.

(3) For the purposes of this section—

(a) a medical practitioner is a qualified person; and
(b) a pharmacist or registered nurse is a qualified person only for the purpose of performing an abortion by administering or supplying a drug or drugs in accordance with the Reproductive Health Care Modernisation Act

Abortion—Abolition of common law offences

Any rule of common law that creates an offence in relation to procuring a woman’s miscarriage is abolished.