by Terry Bellamak
***UPDATED***
The Abortion Legislation Bill has now passed second reading.
The next step in the legislative process will be the Committee of the whole House. That’s the free for all where MPs debate themselves hoarse over possible changes to the bill. These proposed changes are set out in Supplementary Order Papers, or SOPs. Any MP who thinks the bill can be improved is able to submit an SOP.
One of the original purposes of the Abortion Legislation Bill was to take abortion out of a legal framework and put it into a health framework where it belongs. This is an excellent impulse. Doctors and lawyers (and lawmakers) should really not attempt to practice each other’s profession. It never ends well.
Some SOPs on the list attempt to roll back decisions already made, for better or worse. Others try to constrain the practice of medicine within limits MPs think they understand.
Medicine has been called part science and part art, because each case is unique and individual, with a vast panoply of variables a doctor must consider when forming a professional opinion.
Lawyers and lawmakers are engaged in a process that combines people and situations in order to make up rules that apply to whole categories. They do not operate at the level of individual cases.
When lawmakers try to constrain the practice of medicine, they invariably come up with overly prescriptive approaches guaranteed to work badly in at least some cases. This attempt to constrain the medical profession arises from a fundamental distrust of medical judgment – that is why lawmakers take the decisions out of doctors’ hands.
A big problem arises on the flip side of this coin, where doctors attempt to interpret the law so as not to break it and draw legal penalties upon themselves. This is how you get 40 years of certifying consultants pretending to believe their patients when they say their mental health will be unstable unless they can receive abortion care.
It could be worse. This is also how people like Savita Halappanavar die. Irish doctors refused to end her wanted but doomed pregnancy while the foetus had a heartbeat, even though the law as written would supposedly have allowed an abortion to save her life. But the penalty for making a mistake was 14 years in jail. Who feels comfortable taking that kind of risk? And so Savita died.
So keep a close eye on SOPs and legislative provisions that seek to constrain a profession in which most MPs have no training.
The Abortion Legislation Bill has 10 SOPs so far, and may get more. Here is ALRANZ’s handy guide to the Abortion Legislation Bill’s SOPs. Parliament does not give SOPs very descriptive names, so we will name them, for easier reference. We will update the list as more SOPs are put forward.
The Option A SOP
Jan Logie’s SOP would remove the regulations about abortions after 20 weeks, and let health practitioners practice medicine without legislative interference. All abortions would be a matter between a pregnant person and their health practitioner(s) of choice. The only folks who have a problem with it are those who think women are childish flibbertigibbets who change their minds about parenthood at 30 weeks, and health practitioners are Bond villains who have no ethical standards. So, misogynists and misanthropists.
The Referendum SOP
Darroch Bell submitted this SOP to give effect to New Zealand First’s determination not to touch abortion law reform with a barge pole if they can avoid it (Tracey Martin excepted). This says if Parliament approves the bill, it must go to a referendum and achieve the approval of a majority of voters. But we say that putting human rights to a popular vote is lazy lawmaking (not to mention morally unpalatable). Parliament created the convoluted law that got us into this mess, so Parliament can get us out of it.
The Trans Inclusive SOP
This SOP from Jan Logie acknowledges the existence of trans men and non-binary people, who are capable of becoming pregnant and are not women. We support this 100%. You should too.
The Assault on Pregnant People SOP
Jan Logie’s SOP returns the consent of the pregnant person to the centre of the question of whether killing an unborn child is illegal. If the pregnant person does not consent to the ‘assault’, then it is criminal. If they consent, it is not. This means someone who provides an abortion to a willing person may be guilty of practicing medicine without a license, but they would not be guilty under s 182 of the Crimes Act unless the person was unwilling.
The No Safe Areas SOP
David Seymour is very keen on freedom of expression, and believes safe areas are too great a burden on it. This SOP’s Explanatory Note draws a distinction between the United States and New Zealand, saying it’s not as bad here, so we don’t need safe areas. But ‘not that bad’ isn’t the same as good – anti-abortion harassment is already common, as anyone who has walked by an abortion provider lately has probably noticed – and things change quickly, as events in the House at second reading demonstrate. An abortion opponent was ejected from the Gallery for heckling an MP, the Speaker had to rebuke other anti-abortion people in the Gallery several times, and outside the House abortion opponents were parading around with gruesome pictures on signs. All signals point to escalation, and it would be nice not to have to go back to Parliament for an amendment when the harassment gets even worse.
The No Abortion for Gender or Disability SOP
One of the purposes of the Abortion Legislation Bill was to decriminalise pregnant people and health practitioners who provide abortion care in good faith, so that they have professional penalties rather than criminal ones hanging over them if they make a mistake. Melissa Lee has devised an SOP to re-criminalise health practitioners and allow Parliament to collectively practice medicine. If a ‘person’ (which includes health practitioners, but is not limited to them, raising the question of who Lee thinks provides abortions) has a reasonable belief that the pregnant person to whom they mean to provide abortion care is aborting because of the gender of the foetus or because the foetus has a disability that will not prove fatal before 29 days, then they can face seven years in the slammer. So unless the health practitioner can read minds or accurately predict the future, they could end up in jail. Oh, and if the health practitioner does not advise their patient about these restrictions in writing, they could be subject to a $10,000 fine. What could possibly go wrong?
The Return of the Certifying Consultants SOP
Early medical and early surgical abortions are among the safest medical procedures around. You are more likely to suffer complications from getting your wisdom teeth removed. But this SOP from Agnes Loheni trades on the myth that abortion is dangerous. Studies in the United States have shown health practitioners other than OB/GYNs can provide abortions just as safely as OB/GYNs. That is why the Abortion Legislation Bill would allow properly trained nurse practitioners and midwives to provide them. This SOP would require early surgical abortions to be provided by OB/GYNs or GPs qualified in Obstetrics, making improving access difficult due to lack of providers. It would also require the provider to ‘certify’ the gestational age of the foetus. After 20 weeks, we are back to two certifying consultants, and these abortions can only be provided before a foetus has ‘reached viability.’ That word choice assumes viability is inevitable, but viability is something not all foetuses are capable of reaching. It is unclear whether ‘reaching viability’ applies to the passage of time or the fitness of the foetus. This could lead to unforeseen consequences that could prove fatal to pregnant people. Bad idea.
The Foetal Pain SOP
The Journal of the American Medical Association is on record saying “Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester,” that is, before week 27 or 28. So Agnes Loheni has devised an SOP that adds unnecessary steps and opportunities for complications to the abortion process after 20 weeks by requiring doctors to sedate foetuses in utero. Never mind that most abortions after 20 weeks are accomplished via induced labour, and no one is suggesting pain relief for foetuses undergoing birth. (Yet.) Here is another clear example of a lawmaker trying hard to practice medicine, or at least tell doctors how to practice medicine.
The Parental Consent SOP
Joanne Hayes has submitted an SOP, the subject of which is a perennial favourite among those who consider children the property of their parents. It would amend the Care of Children Act 2004 to repeal a minor’s right to consent to an abortion as though they were of age. The reasons this is such a terrible idea have been canvassed many times before, most recently by the New Zealand Parliament in 2015. The National-led government of the day rejected parental notification or consent because most teens tell their parents about their pregnancies, and those who don’t have very good reason not to, often fear of abuse, homelessness, or homicide. Placing more barriers upon the teens most in need of support is not kind.
The Redundant SOP
Another SOP from Joanne Hayes purports to protect a “woman who is not competent to make an informed choice and give informed consent.” Seems pretty innocuous, right? What it appears to be, however, is an attempt to achieve parental consent by stealth. The determination of whether the person has capacity would rest in the hands of the health practitioner. The Explanatory Note invites them to consider whether the patient lacks capacity “due to their very young age or their intellectual disability.” Youth is the most obvious factor that would be up to the judgment of a health practitioner, since the existence of an intellectual disability would likely be noted elsewhere in the patient’s records, unless Hayes is envisioning the health practitioner making findings of lack of capacity for intellectual disability on the fly. The result of finding the pregnant person lacks capacity to give informed consent would be to place the decision in the hands of their legal guardian, or a court or agent of the court. There is not even a provision allowing a minor to appeal the health practitioner’s assessment (except perhaps the High Court – yeah, that’ll happen), making the SOP maximally disempowering.
The Data SOP
Simeon Brown wants ALL the data. The bill requires the Director-General to collect data and publish it in a report once a year. The Director-General is also required to collect much more granular and intrusive data from abortion providers, but only for the first 18 months. Brown wants the Director-General to publish that granular data, and publish it annually, forever. The bill states the data must not identify patients, but is unclear whether this data can be linked back to a particular provider. It is also unclear whether some of the providers may provide so few abortions that the identity of their patients may be guessable from the data. It requires providers to tick a box to confirm they told the pregnant person about accessing counselling. That seems unnecessary. The SOP would also require providers to supply “any relevant information pertaining to the woman’s physical health, mental health, and wellbeing.” That’s pretty open-ended. Relevant to what exactly? How will this data actually be used?
The Cultural Respect SOPs
Alfred Ngaro and Harete Hipango have both submitted SOPs that would require providers to recognise the pregnant person’s ethnic background, and their cultural, ethical, and spiritual beliefs. Hipango’s is centred on the Treaty of Waitangi. Ngaro’s requires health practitioners to provide translators if English is not the patient’s native language. They both sound really good. On the whole, we prefer Hipango’s version, because it does a better job of centring its principles on the wellbeing of the pregnant person. The importance of a person’s culture, whanau, religion, and community are for the them to determine, and the health system should respect and support their view.
The Offensive Language SOP
This SOP from Nicky Wagner rewrites the section of the Contraception, Sterilisation, and Abortion Bill to removes references to “mentally subnormal females.” Fair enough, this kind of language stopped being OK ages ago.
The Rape Survivor Exception SOP
Under current law, and under the bill, health practitioners are allowed to obstruct anyone’s access to reproductive health care. That’s pretty crappy, but the in the case of sexual violence survivors who want emergency contraception to prevent pregnancy, it is senseless and wrong. The last thing they need is more trauma and stigma from doctors or pharmacists who don’t like certain aspects of their jobs. This is a very special case, and the need for this should be totally obvious. Louisa Wall’s SOP would prevent health practitioners obstructing a survivor’s access to EC.
The Closest Provider SOP
With this SOP, Ruth Dyson very neatly turns a crappy section of the bill into a great one. The bill currently requires health practitioners who obstruct patients’ access to reproductive health care to tell them how to access an actual provider of the service. But it wouldn’t be very helpful if you were in Whangarei, and your obstructing health practitioner told you about a provider in Invercargill. This SOP requires them to tell people how to access the contact details of the closest provider. That’s probably what the drafters always meant, but there is so much deception and bad faith in the world that it helps to spell it out.
The Disclosure SOP
Under both current law and the bill, health practitioners who obstruct access to reproductive health don’t have to tell you they conscientiously obstruct until you ask for a service they refuse to provide. By then it’s too late – you’re already in a consultation you will be expected to pay for even though you derive no benefit from it, plus there’s all the time you spent developing a professional relationship with a doctor you might not want to continue with. This is unfair to patients. No one is expecting health practitioners to provide services they don’t wish to, but informing their patients at a time when people can do something about it (specifically when they call to sign on, and on websites and on signs on the premises) is small concession to patients’ right to informed consent. Thank you, Dr Deborah Russell, for a very sensible SOP.
The Other Safe Areas SOP
Marama Davidson’s SOP would make prohibited behaviour in a safe area an infringement rather than a crime. It would also allow providers to apply for safe areas prospectively. Hopefully this will assuage concerns in some quarters around freedom of expression, and make safe areas more accessible. The Ministry of Health are planning to increase access to reproductive health care, especially in areas that are currently underserved. Knowing they can be protected from harassment from the start will surely give smaller providers more confidence.
The Retrograde SOP
Back in 2010 the High Court decided Hallagan v NZMC. That case established that under the current law, doctors don’t have to help their patients by referring them to other doctors who provide the services to which they obstruct access. The NZMC could have appealed the case, but didn’t. And here we are with a new bill that takes the tiny step of requiring health practitioners to tell people how to access a list of providers of the services they obstruct. But apparently that is too much for Chris Penk, who wants to keep the current situation, in which health practitioners don’t have to do anything but let their patients know care is available … somewhere. It also weakens the protections for employers who need professionals who don’t object to doing their jobs.