The nearly 7-year Right to Life v Abortion Supervisory Committee case is back in the Supreme Court in Wellington this Tuesday, and there’s a lot at stake. (BTW, court hearings are open to the public, and generally start at 10 a.m. The Supreme Court is located at 85 Lambton Quay.)
This case has cost the Crown hundreds of thousands of dollars to defend and has so far been considered by fourteen judges in various courts, before winding up in the lap of the Supreme Court. ALRANZ has a timeline of the case, from its beginnings in May 2005 when Right to Life (RTL) filed a mandamus in the High Court in Wellington against the ASC for its alleged failure to fulfil its statutory duties. Its claims included the failure of the ASC to ensure that the human rights of unborn children received the full protection of the law, the failure to hold certifying consultants accountable for the lawfulness of the abortions they authorised and the failure to stop abortion on demand.
Numerous courts have looked at all of RTL’s claims over the years, and in 2011 in the Court of Appeal, RTL eventually lost on two parts of its case – (i) the claim that the fetus has a legal right to life from conception and (ii) a challenge to the current abortion counseling regime. But after a subsequent appeal, the Supreme Court decided to allow it to advance its argument that the Abortion Supervisory Committee is not fulfilling its statutory duty. Here is a pdf of the Supreme Court decision allowing the appeal, which is worth reading in order to understand what’s going on in this case.
As it stands, that part of the case is essentially focused on whether or not the ASC should be reviewing (second-guessing) certifying consultants’ decisions regarding the lawfulness of abortions they approve. (Background: Abortion in New Zealand is covered by the Crimes Act 1961 under which it is only legal if approved by two certifying consultants under a limited set of grounds. Those grounds are: where continuing the pregnancy poses serious danger to the life or mental health of the mother, cases of severe mental or physical handicap of the fetus, incest, or severe mental subnormality of the mother. Around 98% of all abortions are approved under the mental health ground – another indicator of the bankruptcy of the current conservative law.)
In its defence, the Crown has argued that medical decisions like those made by certifying consultants are not open to external review, a defence that reaches back to the precedent-setting 1982 Wall v. Livingston case in which an anti-choice doctor challenged the abortion approval for a pregnant 15-year-old. Several judges have shown sympathy to this part of Right to Life’s case, in particular Justice Forrest Miller in his 2008 ruling calling into question the lawfulness of many abortions in New Zealand, and Justice Arnold, who offered a dissenting decision in the case at the Appeals Court stage. Some lawyers who have looked at the Court of Appeal decisions see the dissenting opinion as the stronger — something that’s pretty sobering to pro-choice supporters, and could auger badly for the Supreme Court case.
Success for RTL on this front would almost certainly curtail abortion access in New Zealand. Opening medical decisions up to review by a politically appointed statutory body (the Abortion Supervisory Committee), would, at the very least, have a chilling effect on certifying consultants. How many will want to take on the job knowing political appointees will be looking over their shoulders? As the latest ASC report, issued in February, pointed out, the numbers of certifying consultants are already falling, with some regions severely underserved, meaning there are already unacceptable delays for many women seeking abortion care.
This is how abortion access is lost … slowly, expensively, ponderously, through the courts, with (almost) no one really noticing what’s going on. Meanwhile, despite ongoing complaints from the courts and the ASC itself that Parliament needs to do something to bring abortion law into line with practice, our politicians have steadfastly maintained a deafening silence — one of the recent honourable exceptions being former Labour MP Steve Chadwick.