During the last election campaign Jacinda Ardern declared her intention to reform New Zealand’s abortion laws by decriminalising the procedure, and changing the law to treat abortion as a health matter.
Last February, her Minister of Justice, Andrew Little, directed the Law Commission to report back to him in eight months with options for abortion law reform.
The Law Commission has finally reported back to the Minister. Their report contains three options for the reform of New Zealand’s abortion laws.
Before we get into the options, let’s briefly recap what’s wrong with the current system:
- Paternalistic– the decision whether someone can get an abortion rests with the certifying consultants, not with the pregnant person, which violates their right to bodily autonomy
- Complicated– you need to follow a convoluted process to get an abortion, which includes tests, counselling, and getting the approval of two certifying consultants
- Punitive – you have to lie about your mental health status to meet the grounds in the Crimes Act (98% of abortions are granted on the mental health ground)
- Arbitrary– approval is discretionary, not a matter of right, and people have been denied abortions
- Discriminatory– only women and other pregnant people must undergo a complicated, uncertain process to access safe, routine health care
- Creates delays– it takes 25 days on average from the initial referral to the procedure, and health practitioners are allowed to refuse requests for abortion referral and contraception
The Best Option
Model A allows pregnant people to receive abortion care for any reason, at any gestation. It is best because it treats abortion like any other form of health care.
This option places the decision to seek abortion care in the hands of the pregnant person where it belongs, rather than in the hands of random certifying consultants. It eliminates much of the discrimination that permeates the provision of abortion in New Zealand.
This is important because just like every pregnancy is individual, so is every abortion. The pregnant person is the person best placed to decide whether to receive abortion care; no one else knows her circumstances better.
Pregnancy can be gruelling and unpleasant, even when you really want the baby. Forcing someone to undergo pregnancy and childbirth who does not wish to do so is horrific. According to the UN’s Special Rapporteur on Torture, it is torture.
Model A makes no mention of gestational limits. This benefits vulnerable families, because abortions that happen late in a pregnancy are overwhelmingly wanted pregnancies undermined by some crisis. The last thing a family in crisis needs is an unnecessary legal process. But more on that when I discuss Model C.
By greatly simplifying the process, this option is likely to help with the delay that currently exists related to ticking the legal boxes. Other delays around limited access, however, will require investment from the Health Ministry to alleviate.
This is an option worthy of the first Western nation to recognise women’s right to vote. It represents a conscious acknowledgement that women’s bodies belong to themselves, not to the state.
The Worst Option
Model B leaves the final decision whether a person can get an abortion in the hands of one health practitioner, who will provide the abortion. The practitioner must be satisfied the abortion is appropriate in the circumstances, having the pregnant person’s mental and physical wellbeing as the primary concern. There is no limit to the matters that can be taken into consideration, so they may include social or financial considerations.
By leaving the decision in the hands of a health practitioner rather than the person whose physical body it concerns, Model B still actively discriminates against women and other pregnant people, because there is no health care men or non-pregnant women routinely seek that requires a practitioner’s legal approval.
Model B requires a practitioner, who probably does not know the pregnant person, to determine the appropriateness of abortion in her circumstances, as though they would know better than she would. This is insulting.
Model B necessitates maintaining the pointless bureaucracy we currently have around ensuring the approval has been legally recorded. This may perpetuate the delays we see in the current system.
Model B may inadvertently invite litigation after the fact. Some women experience religious conversions that entail denouncing previous abortions. Litigious anti-abortion groups may allege a given practitioner knew or should have known an abortion would lead to the woman’s later psychological distress, in a ploy to make them wary of approving abortions.
Under what circumstances would an abortion be refused? The fact that this is unclear means the law is still arbitrary and unpredictable.
Or would every abortion be approved? If so, then the exercise is pointless. If you already know the answer to the question, why bother asking?
It is hard to see this model as anything but a sop to those who believe women should not make decisions themselves.
The Meh Option
Model C is like Model A up until the 22nd week. Then it turns into Model B. This means the decision whether to get an abortion in is the hands of the pregnant person up until the outcome is a foregone conclusion.
This option is an improvement on the status quo. But, given that pregnancies that continue for 22 weeks are wanted pregnancies, and families who must terminate them are in crisis, it is difficult to see what the benefit to society might be in forcing families facing tragedy to undergo a pointless legal process in order to access health care.
Less than 1% of pregnancies end in abortion after the 22nd week. So this option throws a very small number of pregnant people under the bus. But when you consider their circumstances, it just seems cruel.
Would there ever be a case in which approval would be denied? One would expect it is even less likely under Model C than under Model B. Why are we bothering, then?
Like Model B, Model C panders to folks who want the system to look as though it might refuse an abortion, but does so by making only families in the most vulnerable of circumstances pay the price.
Features That Could be Part of a New Law, Whatever Option is Chosen
Instead of making abortion a separate offence, we could use the existing legal framework to penalise unqualified people performing abortions, like most jurisdictions in Australia do. Abortion is extremely safe, and can be regulated like other health care.
Pregnant people could access abortion services directly, without a referral from their GP, or any other doctor. This would eliminate the bottleneck caused by the refusal to treat on ‘conscience’ grounds. It could also eliminate some of the delay around access.
Early medical abortions could occur at the patient’s home. Early surgical abortion could occur in settings like doctors’ surgeries or clinics. Currently they are provided in full-on surgical theatres, unnecessarily in the vast majority of cases, and at great expense.
Trained health practitioners who are not doctors could provide abortions. International research has shown properly trained nurse practitioners and midwives achieve the save high degree of safety as doctors.
Counselling could be offered, but not made mandatory.
The legislation could include safe access zones around facilities that provide abortions, so that clients could not be targeted for harassment within that zone.
Providers who refuse treatment on the basis of ‘conscience’ could be required to refer the patient to someone who will provide the service, as in Queensland’s new law.
What is Missing
Refusal to Treat
While the right to self-refer to an abortion service solves one part of the problem, refusal to provide contraception remains an issue. This impacts the abortion service because contraception is the most effective means of preventing abortion.
The referral requirement could require pharmacies to ensure there is at least one person working at all times who will dispense contraception, including emergency contraception.
But the refusal to treat still discriminates against women and other people who can become pregnant, because contraception, like abortion, is routine health care used primarily by them. More must be done to rebalance the burden of a health practitioner’s ‘conscience’, so that the weight falls more on the practitioner, and less on the patient.
Safe Access Zones
The report considers, then rejects the idea of safe access zones for New Zealand, saying they have not been shown to be necessary.
But this is not because Kiwis are so nice – it’s structural. Because of the current law around licences, most abortions occur in hospital settings, where it is difficult to target people seeking abortion care.
If the Ministry of Health wants to improve access, and intends to rely on community-based clinics and doctors’ surgeries to do so, they would do well to consider that such clinics may be reluctant to provide care, knowing they will soon have a group of old men with gory signs right outside their door. The Government would do well to consider providing a solution in the new legislation.
Model A is the option that affords the greatest opportunity for progressive change, because it goes farthest toward treating abortion like every other form of health care. It should form the basis of an abortion law reform bill. That bill should include all the features the Law Commission identified as possible elements of law reform, independent of the three models.
With this report, the Law Commission has delivered a valuable analysis and a clear way forward for the Government. It now rests with the government to turn this advice into a law New Zealand can be proud of, one we can point to in years to come as evidence that New Zealand continues to honour its legacy of treating women as adults.