Applying the Oakes Test to the Safe Areas Bill

Applying the Oakes Test to the Safe Areas Bill

by Terry Bellamak

 

The Health Select Committee heard Crown Law’s submission on the Contraception, Sterilisation, and Abortion (Safe Areas) Bill a week ago last Wednesday. To refresh your memory, Crown Law is the office that supplies the Attorney-General with section 7 reports that explain whether any limitations a bill places on the rights and freedoms in the New Zealand Bill of Rights Act 1990 (‘BORA’) are demonstrably justifiable in a free and democratic society.

The representative talked about the Oakes Test. That is, he mentioned it, and described it, but did not apply it. He merely noted that Crown Law did not have enough data to determine whether the first limb was satisfied. He said gathering that data is the select committee’s role, which is true.

The Oakes Test is one of many useful things to come out of Canada. In New Zealand we use the test to see whether a proposed limitation on a right or freedom in BORA is demonstrably justified in a free and democratic society. It requires the examination of the two distinct things: first, the objective the limitation is trying to achieve; and second, the means by which the objective is achieved, i.e. the limitation itself. What are you trying to do, and how are you going to do it?

Oakes Test

  1. To justify the limitation, the objective sought must be pressing and substantial.
  2. The means of achieving that objective must be proportional. It must satisfy these criteria:
  3. a) the means must be rationally connected to the objective
  4. b) the impairment of the rights in question must be minimal
  5. c) there must be an overall proportional balance between the objective and the limitation

 

So let’s apply the test to the safe areas bill.

 

Justification

To justify the limitation, the objective sought must be pressing and substantial.

What is the objective of the bill? To allow people who want abortions and people who provide abortions to enter places where abortions are provided without being harassed by people who want them to stop providing or receiving abortions.

Seems a difficult objective to argue against on its face – very few would seriously suggest preventing harassment is not pressing or substantial. New Zealand’s international obligations under the Convention to Eliminate All Forms of Discrimination Against Women and other instruments, its responsibility to provide a safe working environment for providers it employs, and its duty to health consumers under the Health and Disability Code all add weight to the argument that preventing harassment is pressing and substantial.

The counterarguments would likely run:

The objective is NOT pressing and substantial because

  • it is not happening
  • it is happening but it is not harassment
  • it is harassment but it should be allowed

“not happening”

Submitters who argued harassment was not happening in Aotearoa relied on the lack of formal complaints of harassment to police or DHB management. They also relied on the Law Commission’s statement in 2018 about not seeing a need for safe areas, and its assumption that the Summary Offences Act 1981 would provide a means to address harassment, should it occur.

The answers to this counterargument lie in the evidence provided by submitters during the select committee process. They spoke of their own experiences trying to access abortion care and being chased, surrounded, verbally abused, and having things thrown at them. ALRANZ’s submission included firsthand accounts of harassment, excerpts from a survey of abortion providers about their experiences with protesters, and pictures of anti-abortion protesters and their signs (with faces obscured). Two of the select committee members, both health care professionals, shared their own stories of anti-abortion harassment directed at them.

Why are there no complaints? It turns out there are pragmatic reasons for that.

To use the Summary Offences Act, you need to call the police and wait around for them to show up. People who have just had an abortion want to go home and rest. People who deliver abortion care have enough to do in their jobs without pursuing complaints that will cost them time and energy but may not lead to any meaningful sanction.

Abortion is still stigmatised, so people may not expect police or the DHB to take their complaint seriously. Submitters who could have made complaints, including committee members, said they preferred to just get on with their lives.

For any member of the Health Select Committee to argue that harassment does not happen, they would need to presume that every person who told their story was lying, including their colleagues on the committee.

“not harassment”

Many submitters admitted protesters were out there on a regular basis, with or without signs and props. But they said what occurred did not constitute harassment.

Some spoke of the pledge they took in order to participate in “40 days for Life” protests. They said it required them to be “quiet and prayerful”, and not to speak to anyone unless spoken to. They spoke of quietly singing and praying the rosary.

But here’s the thing. The folks who signed the pledge could have followed it to the letter, and yet harassment could still be a problem. How? Two ways.

First, the shouting, name calling, and overtly offensive behaviour may be perpetrated by another group, perhaps one that did not make a submission. There are many actors in the anti-abortion activist space, and some are more extreme than others.

Second, what makes this kind of targeted harassment so toxic is the incipient threat of escalation to violence. Violent people are capable of behaving peacefully right up until they start acting violently. No one can tell whether a person might turn violent just by the way they look. After all, Shelley Shannon peacefully prayed and sang outside clinics for years before finally shooting Dr George Tiller.

Those who have experienced abortion harassment tell us they felt intimidated, targeted, harassed. It is reasonable to expect a reasonable person to feel that way about the behaviour they describe. Why would we not believe them?

“harassment but should be allowed”

Some anti-abortion submitters acknowledged that abortion patients and providers might be distressed by protesters presence outside services, but maintained it was important they remain there for several reasons:

  • some people find them helpful
  • they provide information about other options than abortion
  • they provide moral support for people who are being coerced into having an abortion
  • their actions are for the greater good

Are these reasons sufficient to render the objective not pressing and substantial?

First we should ask, how many people find their presence helpful? If we accept that some abortion seekers will find the protesters helpful, we must also accept that some will find them unhelpful, and some will be neutral. How do the numbers break down?

The short answer is: no one knows. There is no reliable research on how many people seeking abortions were persuaded not to proceed by protesters, nor how many panicked and bolted at the sight of protesters and had to reschedule, nor how many set their jaw and pretended to ignore the protesters as they entered, nor how many did not care about the protesters.

Other research from the USA may shed light on the issue, however. It stands to reason the people most likely to find protesters helpful would be people who might regret having an abortion. If we know how many later regretted their decision to receive abortion care, it might give us insight into how many people might want to hear the protesters out, or welcome their input.

Research into feelings of regret after abortions found 98% felt they had made the right decision one week after the abortion, and 99% felt that way five years later.

This suggests very few people come to regret their choice. If the people most likely to find protesters helpful are those who are poised to regret their abortion, then it follows that they are few.

What about information about other options? Abortion services already have unbiased, professional counsellors whose job it is to work through all the options, and all abortion patients have the right, by law, to consult with them. The protesters, while they may be across all the options, are far from unbiased.

Other research into abortion patients’ decisional certainty shows abortion patients are as certain or more certain than people making decisions about other kinds of health care. This suggests that abortion patients are less likely to be undecided about their course of action.

But there is one additional thing protesters can do: make offers of financial support as a reward for not proceeding with an abortion, apart from the usual governmental support. ‘Crisis pregnancy centres’ around the country make similar offers to people who may find them quite helpful if they wish to continue the pregnancy. They may even get a better offer outside the abortion service than in the centres.

What about support for people being coerced? Staff at abortion services (not just counsellors) are trained to watch for coercion, or mere ambivalence, on the part of patients, and to find out whether they really want to proceed. The Standard of Care, a document that establishes the protocols for abortion care in New Zealand, requires patients to be spoken with alone, away from support persons, so that they can speak frankly. It seems likely protesters would struggle to have such a private conversation out on the street with support persons present.

What is the greater good anti-abortion protesters seek to promote? The protesters make a foundational presumption that continuing a pregnancy is always better than having an abortion. It follows they would consider the harassment they engage in for the greater good of preventing abortions should be allowed.

This foundational presumption is not shared by the rest of New Zealand society. It is no longer government policy. Opinion polls have consistently shown a large majority of New Zealanders believe abortion should be available on request if the pregnant person wants one.

Neither the deeply held personal beliefs of anti-abortion protesters nor the chance their presence might benefit a few people negate the pressing and substantial nature of the objective, which is preventing harassment of people seeking or providing abortion care.

The first limb of the test is met.

Proportionality

The means must be rationally connected to the objective

Again, the objective is to allow people who want abortions and people who provide abortions to enter places where abortions are provided without being harassed by people who want them to stop providing or receiving abortions.

The means chosen is to prohibit “intimidating, interfering with, or obstructing” protected persons (those seeking or providing abortion care) in order to frustrate their purpose for being there in a manner that a reasonable person would know is distressing, or communicating with them (impliedly about abortion), or recording them, but only within 150 meters of the abortion service.

QED, they are rationally connected.

Impairment of the rights in question must be minimal

What are the rights being impaired?

  • freedom of expression
  • freedom of peaceful assembly
  • manifestation of religion and belief

How much are these rights impaired by the safe areas bill?

Freedom of expression and freedom of assembly

People would not be able to address protected persons in the safe area. They would not be able to gather with signs. There would be no ‘sidewalk counselling’ permitted.

They would not be able to pray or sing audibly. That sounds draconian at first. But what is the purpose of praying and singing as a display? To some protesters it might be “trying to save abortion patients’ souls.” To others, it might be an opportunity to shame abortion patients. But the simplest expression of the meaning must be “we are here to demonstrate we believe you are doing something wrong” – to create pressure on them to change their plans.

No obligation exists on the part of abortion patients or providers to give the protesters a hearing. But in that time and place, they cannot avoid it. The attack on their privacy and dignity is inescapable. This is the reason the bill moves protest activity out of the safe area, where patients and providers can avoid it if they wish.

Outside the safe area, protesters are welcome to gather, sing, pray, scream, and talk to whomever they want, including protected persons. Protesters are not being controlled, except in the safe area. The prohibited behaviour is not prohibited at all outside the safe area.

The US Supreme Court in Hill v Colorado called similar restrictions “reasonable time, place, and manner restrictions” and found they were justifiable limitations on the right to free speech. It is significant that what is arguably the most militant free speech jurisdiction on the planet found safe areas were reasonably justifiable.

This almost certainly does not feel minimal to the anti-abortion protesters, because trying to persuade or shame or frighten off those particular people is their whole reason for wanting to be there. The very people being protected are the very people they want to target, for the very reason they meet the definition of protected persons.

But the bill accomplishes the objective while minimally impairing their right to freedom of expression and assembly, because they are not silenced – they just cannot target those particular people. Anyone who wants to talk to the anti-abortion protesters is free to do so, and they are free to respond – outside the safe area.

Manifestation of religion and belief

Manifestation of religion and belief includes “worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.”

It is unclear whether protesters’ right to manifestation of religion and belief includes forcing others to participate as an unwilling audience.

Even if it did, however, the protesters are free to engage in whatever display suits their religious beliefs outside the safe area. It may be more difficult to dragoon non-consenting participants there, but it is not a limitation on their rights to freedom of expression or assembly or manifestation of religion that people are able to avoid them if they wish.

Again, anti-abortion protesters’ right to manifest their religious beliefs in any way is not limited at all, except inside the safe area. This limitation is minimal.

Overall proportional balance between the objective and the limitation

Once again, the objective is to allow people who want abortions and people who provide abortions to enter places where abortions are provided without being harassed by people who want them to stop providing or receiving abortions. The means of doing so is to limit what protesters can say or do in the safe area only. Everywhere else, their rights are the same as always.

On the one side we have anti-abortion protesters’ right to freedom of expression, freedom of assembly, and right to manifest religion and belief. On the other, we have abortion patients’ and providers’ right to privacy, right to seek medical care, right to a safe workplace, and right not to be discriminated against.

On the whole, the bill looks like it creates a rough-and-ready balance between the rights of protesters and the rights of protected persons.

The second limb is met. The Oakes Test is satisfied.

 

To those who really want to come at protected persons in safe areas, this application of the Oakes Test will not be convincing.

They are free to apply the test themselves.

Celebrating 60 Years of the Pill in New Zealand – The Pink and Green Pills Arrive

by Dame Margaret Sparrow

Setting the scene

Looking back to 1961 it was a year of major international tension but also significant achievements. In January John F. Kennedy was sworn in as President of the United States. The cold war was omnipresent and worsened with the USSR testing large nuclear bombs then masterminding the building of the Berlin Wall. American citizens were encouraged to build fallout shelters. The space race between USSR and the United States escalated. In April, Soviet cosmonaut Yuri Gagarin completed the first orbit of Earth, and less than a month later Alan Shepard became the first US man in space.

In the United Kingdom, marches were held by the Campaign for Nuclear Disarmament. The World Wildlife Fund and Amnesty International were both launched. The UK began talks to join the EEC. The Beatles started performing at the Cavern Club, in Liverpool.

In New Zealand, Keith Holyoake was the Prime Minister and Viscount Cobham was the Governor General. We celebrated the first national Waitangi Day. One of the last outbreaks of poliomyelitis caused seven deaths. The death penalty was finally abolished. A change to liquor licensing meant for the first time restaurant diners could legally be served wine with their meal. The population of New Zealand was 2.5 million. Over 65,000 kiwi babies were born, the most fertile year of the post-war baby boom. Illegal abortionists plied their trade and from time to time were prosecuted; seven were convicted. Six women died from an abortion.

The Pharmaceutical Industry

Something sinister was percolating which would have a bearing on the control of all drugs. Thalidomide was first marketed in 1957 in West Germany, where it was available over the counter for anxiety and insomnia. It later became popular for morning sickness in pregnancy. However in 1961 it was associated with congenital defects in babies. Due to public outrage the medication was withdrawn from the market in Europe in November 1961. It is estimated that the total number of embryos affected by use during pregnancy was at least 10,000, of which about 40% died around the time of birth. Those who survived had limb, eye, urinary tract, and heart defects. Its initial entry into the US market was prevented by Dr Frances Kelsey of the FDA who was concerned about the lack of safety evidence. For resisting the pressure from promoters and averting a thalidomide disaster in the US she received an award from President Kennedy.

Thenceforth much needed changes were made throughout the world, including in New Zealand, to procedures for the approval of drugs. This came at a time when the burgeoning cost of pharmaceuticals also mandated a scrutiny of the system.

Right: Dr Frances Kelsey (1914-2015) who refused to approve thalidomide in the USA.

Prior to 1961 the introduction of new drugs into New Zealand, under the Food and Drug Act 1947, could best be described as laissez faire. As long as drugs complied with the British Pharmacopoeia or some other recognised standard there was no need for local clinical trials, or testing to determine quality or safety. There was no formal inspection or regulation of manufacturers, importers, wholesalers, or distributors. The system relied on trust; that importers would access new medicines from reliable sources and the medical profession would ethically prescribe and chemists ethically dispense. Free medicines had been introduced with the 1938 Social Security Act and if a medication was deemed necessary it was funded and listed on the Drug Tariff. Although hormonal treatments for medical conditions by a specialist might be funded, the same pills used for contraception were not.

When Enovid, manufactured by Searle (US), was approved for use for medical conditions (menstrual disorders and endometriosis) by the FDA in June 1957, its distribution was expanded through Searle (UK) under the name Enavid. New Zealand obstetric and gynaecology specialists kept abreast of trends and were able to order supplies of this through N.M. Peryer, a Christchurch-based licensed wholesaler.

When Enovid was approved for use for contraception in May 1960 the potential for prescription by general practitioners widened the market but because of side effects, the lower-dosed Conovid became the preferred drug. In December 1961, the United Kingdom Minister of Health Enoch Powell announced (enviously) that the contraceptive pill Conovid would become available via the NHS at a subsidised price of two shillings per month.

In 1962 Conovid-E was introduced in New Zealand as a contraceptive. All three drugs were imported into New Zealand.

Enavid (UK)   10mg norethynodrel + 150mcg mestranol (from 1957 mainly for specialists)

Conovid          5mg norethynodrel + 75mcg mestranol (from 1961)

Conovid-E      2.5mg norethynodrel + 100mcg mestranol (from 1962)

The original packaging of Enovid (US) was in bottles of 20, 50, and 250

It was the pharmaceutical representatives who liaised with chemists and doctors, educating, advising on the availability and providing free samples. There were no regulations regarding the training or qualifications of these detailers.

Barbara Brookes recounts that in February 1961 the Medical Officer of Health in Hamilton wrote to the Director-General seeking clarification because the local president of the Pharmacists’ Guild told him that travellers were visiting chemists, providing Tabs Conovid and suggesting that they could be sold to the public. The Department ruled emphatically that they could only be sold by pharmacies on prescription.

Meanwhile in 1960 the West German pharmaceutical firm, Schering AG (now Bayer HealthCare) were conducting trials in Australia of Anovlar = 4mg norethisterone acetate + 50mcg ethinyloestradiol. In February 1961 Australia was the first in the world to approve this contraceptive and it would have been distributed in New Zealand at about this time. At first Anovlar came in strips of 20 but in July 1964 the packaging was changed with 21 pills encased in foil and labelled with the days of the week to improve compliance.

Original packaging of Anovlar in 1961.

Anovlar new packaging in 1964.

Schering representatives visited general practitioners persuasively marketing their product and distributing free samples. On 3 July 1962 NZ Truth reported that after a year there was an increasing demand for the two most popular pills then available, despite the relatively high cost: Schering’s Anovlar, the little green pills, which cost 28 shillings per month and Conovid, little pink pills, manufactured by Searle (UK), which cost 31 shillings per month.

This was a lucrative market and competition from a number of other firms would soon lower the price. By 1970 there were 14 pharmaceutical firms offering 34 different brands of contraceptive pills. Schering had added Gynovlar, Eugynon and Neogynon. Searle had added four different strengths of Ovulen. In addition to these so-called combined pills, containing a progestogen and an oestrogen, the first progestogen-only pill Normenon appeared in that list.

The New Zealand Department of Health

Unlike its counterpart in the UK, the Department of Health in New Zealand wanted nothing to do with birth control. In April 1961 when the Minister of Health was invited by Sir Julian Huxley to be included in the World Tribute to Margaret Sanger he was advised to send a curt refusal. Internationally overpopulation was a concern but this was considered irrelevant in the New Zealand context. Even contraception was regarded as controversial let alone population control and eugenics which Margaret Sanger had supported.

A 1961 statement declared that the Department considered ‘birth control was solely a question of public morals, not of public health’. This policy was challenged on a number of occasions especially as it prevented Public Health Nurses from giving advice on family planning. In December 1966 the Department sent a circular memo to all Medical Officers of Health emphasising that family planning was primarily the role of the family doctor, or if there was none, a Family Planning clinic.

In 1962 an amendment to the Food and Drug Act required notification of any new and changed medicines through a notice in the New Zealand Gazette. Medicines that were on the market at the time were accepted without evaluation (grandfathered). The approval of Enavid, Conovid and Anovlar were duly gazetted, effective from 1 July 1962. In 1962 it became mandatory to obtain consent for clinical trials and in 1965 the Committee on Adverse Drug Reactions was formed. In 1969 control was transferred from the Division of Public Health to the Division of Clinical Services and further regulations were introduced.

The medical profession

Until the arrival of the Pill the main methods of contraception were withdrawal (unreliable), condoms (embarrassing to purchase and of poor quality), diaphragms and caps (few doctors were trained to fit these correctly), natural family planning (abstinence not popular), and once a family was complete, female sterilisation (vasectomy was not yet available in New Zealand).

An older method, the IUD, had gone out of favour. In 1961 a New Zealand gynaecologist Dr A.M. Rutherford published a paper in the NZ Medical Journal on his less than satisfactory experience with the Gräfenberg ring. However, in 1962, an important IUD conference was held in New York drawing 60 people from 11 countries and this restored some faith in the method. A second conference in October 1964 attracted 600 people from 44 countries. The IUD was back. Coinciding as it did with the introduction of the Pill this was the start of what demographers call a contraceptive revolution.

1960s IUDs

But in 1961 there were few attractive contraceptive options and the Pill met an unfilled need for reliable fertility control. Writing a prescription was a familiar routine for doctors and that put them back into their comfort zone. Even those who previously disapproved of ‘messy’ birth control methods were converts. But it didn’t happen overnight.

An article in the Dominion 12 April 1961 on the Women’s page (more often featuring millinery styles) carried the headline HORMONE DRUG TABLETS NOT FAVOURED and continued: ‘The first synthetic hormone drug tablets which temporarily suppress ovulation (oral contraceptives) to appear on the New Zealand market, are being greeted with some suspicion by Wellington doctors. Specialists and general medical practitioners approached yesterday on the practicability and advisability of using the tablets were generally agreed that as yet, they would not prescribe them.’

However some GPs were already providing contraceptives through those free samples from enthusiastic, commercially incentivised, pharmaceutical reps. The uptake of the Pill by New Zealand women was described as phenomenal and one of the highest in the world. Writing in FPA’s Choice magazine in 1965 Professor Bonham estimated that 40% of all women at risk of pregnancy were taking the Pill. Some 100,000 packs were being sold each month.

Specialists were kept up to date through medical journals. The first advertisement in the Australian and New Zealand Journal of Obstetrics and Gynaecology (ANZJOG) by Schering, ‘Anovlar for Ovulation Control’, appeared in Vol. 1, No 2, June 1961.

Family Planning Association (FPA)

Leading up to 1961 the relationship between the medical profession and FPA was strained. The New Zealand branch of the British Medical Association (BMA) regarded FPA as a lay organisation encroaching on its territory. Matters came to a head when in February 1960 the ethical committee of the BMA advised its members that it was ‘unethical to refer patients to clinics’. Fortuitously in June 1960 Dr Alice Bush, a respected Auckland paediatrician, was elected president of Family Planning and this paved the way for constructive dialogue. Early in 1961 a deputation met with a special sub-committee of the BMA, and as a result the offending policy was reversed.

Although individual FPA doctors prescribed the Pill when it was considered appropriate the Association was very cautious in recommending the Pill and in the early years continued to promote barrier methods as first choice. This caution was mainly for reasons of safety and the unknown effects of long-term use. In an article in the Otago Daily Times on 12 July 1962 Dr Swyer, an eminent O&G consultant visiting from London roundly criticised the Association for ‘simply falling behind the times’ in regard to contraceptive practices. The article did not mention that the good doctor’s visit was sponsored by Schering.

In 1963 in the very first issue of Choice, a magazine for FPA staff and supporters, there was a balanced article on the Pill by Dr Ruth Black, a member of the Medical Advisory Committee, and the back cover of the magazine carried an advertisement for Anovlar. However it was not until the 1964 FPA conference that the Pill received an endorsement.

Other influences: The Press and Feminism

New Zealand magazine readers knew about the development of the Pill in the US from articles in Time, and Reader’s Digest but less was known about developments in Europe and the UK. New Zealand newspapers and women’s magazines tended to avoid the topic in the early years. Even the FDA approval in May 1960 was not a major news item. In New Zealand Enavid was not promoted as a contraceptive (although it could have been) and was not newsworthy.

The introduction of specific contraceptive pills (Conovid and Anovlar) in 1961 came in under the radar. There was no specific event such as an official announcement of scientific approval; no press conference, no launch, or symposium. Even the Australian approval of Anovlar in February 1961, the second country in the world to approve a contraceptive pill, went largely unreported. Pharmaceutical firms did not wish to create controversy or arouse opposition due to religious or moral objections. The revolution happened quietly in doctors’ consulting rooms throughout New Zealand.

The Pill is often portrayed as a symbol of women’s empowerment but that was not how it was experienced in 1961. That came later. The Australian Women’s Weekly did not feature an in depth article discussing oral contraception until 22 July 1964, when Rene Lecler contributed the ‘Latest Medical Survey of the Pill’. It became the highest selling issue of the decade revealing an unmet need for information which was useful for women. Women waited until 1971 for the Boston Women’s Health Book Collective to publish Our Bodies, Ourselves: A Book By and For Women.

The feminist view of the Pill was multifaceted and ranged from liberation to victimisation. It changed over time and is still changing. On the one hand, it was seen as advantageous to take what advances in medical science could offer. Women welcomed the much-desired control of their fertility and enjoyed the freedom to explore new goals in education and career. Many women wanted to be more independent and less reliant on a male partner. On the other hand others argued that women were being exposed to harm from experimental medication with possible long-term consequences. Many women suffered from serious adverse side effects. A few died. But women also died because of pregnancy or childbirth. Some worried that being sexually available might lead to exploitation by men and a change in relationships. Some wished to maintain cherished feminine roles. Caution was seen by some as a virtue, risk-taking as reckless. The personal became political with a focus on women’s rights and gender equality.

There were many questions. Why wasn’t there a pill for men? Were women at the mercy of profit-driven powerful pharmaceutical companies? Why wasn’t there more research on better methods of fertility control for men and women? What was the role of the government and health authorities? Should contraception be free? Did there need to be such gate-keeping by the medical profession? What about a woman’s choice? These questions are still being asked.

Resources used in the preparation of this article

  1. Barbara Brookes, Claire Gooder, Nancy de Castro. Feminine as her Handbag, Modern as her Hairstyle.NZ Journal of History, 47, 2; 2013.
  2. Ministry of Health. History of Medicines and Medical Device Regulation in New Zealand: Regulation before the current Medicines Act 1981.

         Regulation before the current Medicines Act 1981          (medsafe.govt.nz) 

  1. Helen Smyth. Rocking the Cradle: Contraception, Sex and Politics in New Zealand. Wellington: Steele Roberts, 2000.
  2. Ian Pool et al. New Zealand’s Contraceptive Revolutions Population Studies Centre, University of Waikato, 1999.
  3. H1 Archives New Zealand, Wellington (Health Department files).

Contraceptives 1940-1965.

Maternal and Child WelfareBirth Control 1941-1966

Social SecurityPharmaceutical Benefits Searle and Co (NM Peryer) 1961-1964

March 2021

Expensive Arguments and Cheap Theatre

Expensive Arguments and Cheap Theatre

by Terry Bellamak

Last week I spent some time in the High Court in Wellington, observing the judicial review proceeding of the NZ Health Professionals’ Alliance v the Attorney-General. The NZHPA is a group of medical practitioners who object to abortion. They are seeking a declaration that the Abortion Legislation Act went too far in requiring them to tell people seeking abortion care what they could do to find out where to get it.

In listening to the arguments set out by the NZHPA’s QC I became aware of a double standard. The anti-abortion movement appears to hold the government and its treatment of anti-abortion health professionals to a higher standard than they hold themselves in their treatment of people outside clinics seeking abortion care.

The QC talked a lot about the importance of freedom of conscience. He talked about how the manifestation of conscience through one’s actions was inextricable from conscience itself, and how conscience must never be interfered with.

What about people seeking abortions? They are following their conscience, and their seeking abortion care is a manifestation of their values and principles. Why is it OK for anti-abortion picketers to try and override their sacred consciences? Why is it OK for them to try and change pregnant people’s behaviour, that outward manifestation of conscience?

The QC talked about how being forced to participate in the chain of causation that leads to an abortion, even to perform so remote an act as admitting the truth that a patient is legally entitled to seek abortion care, was improper coercion. He said even the ‘soft pressure’ of professional expectations was terrible because there is no such thing as proper pressure.

If health professionals’ rights are unconscionably infringed by any pressure at all, what exactly do you call what is happening outside abortion clinics, with the gory signs, judgmental stares, fetus dolls, and calling people murderers? The slightest professional responsibility or official disapproval is too much for health professionals to have to bear, but pregnant people are just supposed to roll with the pressure from a mob intent upon stopping them from getting health care?

At this point a QC would point out that this case was about balancing rights under the NZ Bill of Rights Act 1990, and the defendant was (and could only be) a representative of the state. It is right to hold the state to a higher standard than private citizens acting out their atavistic fantasies.

And it’s true – the state, an entity with a monopoly on the use of force, and a great deal of power beyond that, should be held to the highest possible standard of conduct.

But it’s a bit rich to see how low a standard of conduct anti-abortion protesters hold themselves to. In the full knowledge of how unwelcome their attentions are, they nevertheless do not scruple to make pregnant people unwilling participants in their street theatre. They are not protesting against abortion – they are trying to stop abortions, one at a time.

So let’s not have any more nonsense about anti-abortion groups occupying anything like a moral high ground.

False Frames

False Frames

by Terry Bellamak

So, I’ve been commenting on an abortion related post on Facebook. I know, I know.

It’s interesting how no matter what the original post is about, anti-abortion activists (calling them ‘antis’ from here on for brevity’s sake, no shade intended) always trot out the same non sequitur arguments, like abortion up to birth (not an actual thing) or ‘loving them both’ (also not really true). It’s like they’re all singing from the same media strategy.

But what’s got me fascinated today is how antis try so hard to frame abortion as something that is harmful to women.

Allow me to digress for a moment to acknowledge my trans and non-binary friends – who also sometimes need abortion care if they can get pregnant. I see you, and I stand with you. This article talks further about women specifically, for two reasons. First, I’m indirectly quoting the antis, and that’s the word they use. And second, my subject today is ‘women’ as a social construct, which includes trans women and anyone who presents as female, by the way, because prejudice against women applies to them.

Like so much of global abortion discourse, the trend to frame abortion, something women actively seek out, as harmful to them seems to have originated in the US. Antis there, however, have given up pretending to care about women’s welfare. The trend’s survival here seems to be a New Zealand thing.

And like so much anti discourse, the framing is false.

  • As a medical procedure, both medical and surgical abortions are extremely safe. You are statistically more likely to have serious complications getting your wisdom teeth extracted.
  • Abortion looks even safer when compared to childbirth – it is 14 times safer than carrying a pregnancy and giving birth.

Specifically, antis frame abortion as something that is forced on women. To be clear, coercion is terrible and wrong and no one should ever be coerced into doing anything with their body they don’t want (see what I did there?).

But coercion thrives in the shadows, and abortion requires the knowledge and participation of medical professionals. Here in New Zealand it is set out in the Standards for Abortion Services that a patient gets ample opportunity to speak with medical staff alone, away from her support people, so they can ask her about coercion.

Sadly, it is logistically much easier to coerce someone into remaining pregnant against their will by keeping them away from medical practitioners until it’s too late to receive abortion care, because Parliament doesn’t trust women enough to omit the time limits.

But the way the antis frame it, it’s not the abusive partner who is coercing the women, but the abortion provider.

This is all kinds of wrong – abortion providers have no interest or incentive to provide an abortion for someone who does not want one.

  • Abortions in New Zealand are provided under the health system, so abortion providers have no financial incentive to provide abortion or not. Time not spent on abortion is spent delivering other kinds of health care.
  • The Standards for Abortion Services allow for people to be conflicted, go home and think some more, and come back to the abortion service or enrol with a lead maternity carer if they change their mind.
  • The implication that abortion providers have a stake in the outcome clearly shows the stateside origin of the frame. Although most abortion providers in the states are not-for-profit, so it’s a false attack on them too.

Why do they do it?

It allows them to pretend they are not anti-woman.

This is important when you are demanding that half the population be required to surrender control over their own bodies and gestate every pregnancy whether they like it or not.

It plays into patriarchal stereotypes about women, portraying them as foolish, childish, emotional, easily swayed, and unable to discern what is good for them, rather than rational beings with excellent reasons not to want to be pregnant. This further allows antis to pretend to defend the poor, victimised creatures.

It also plays into a gender essentialist ideology adhered to by some folks who try to pass themselves off as feminists. The argument goes, motherhood is women’s natural calling and any other inclination must be the result of brainwashing. The ersatz ‘feminist’ argument continues that this means women should have a higher position in society because producing the next generation makes them morally superior. That didn’t work out so well for the ‘angel in the house’ of the 19th century either.

And it relieves them of the necessity to attack women, which doesn’t go over as well as it used to. Slut-shaming and other forms of contempt have become less respectable in recent times.

If the antis accepted that abortion only exists because sometimes people really don’t want to be pregnant, then their ‘abortion = murder’ stance would require them to make women their prime targets along with abortion providers. Acknowledging women’s agency requires acknowledging their ‘complicity.’ In the states, attacking women in the past has caused the antis to lose support, leading to the change in rhetoric.

Treating women as though they are fools, however, actually is anti-woman. Their framing doesn’t fool anyone who recognises women as people.

It also doesn’t actually convince anyone – not even the antis who use it, to judge by some of the vile things they also say about women in various comment sections. Perhaps they need to circulate the media strategy more widely.

Flowers for Abortion Providers!

Flowers for Abortion Providers!

Once again, it’s almost time for the annual #40daysofharassment (AKA 40daysforlife). Safe areas did not make it into the abortion law reform legislation last year. So even though abortion is legal now, harassment of patients and providers continues.

Abortion providers work under stressful conditions, often harassed both outside and inside the hospital by both extreme religious busybodies and other workers who do not agree pregnant people should be able to make medical decisions. This season is a good time to remind them how much we appreciate them.

Once again, ALRANZ has started a Givealittle page to fund the gift of beautiful flowers for as many services as we can, starting with the ones that provided the most abortions in the past year. Check out the gorgeous pics from last year – thanks to your generous donations we got flowers for everybody! Let’s do that again!

Click here to contribute to our Givealittle page. And thank you for your support all year round!