Students from Wellington Girls College have started a petition calling for safe access zones around Wellington Hospital, to prevent harassment by anti-choice protesters.
In a TVNZ article about it, a law professor says:
[T]he real issue here, of course, is that creating a no-protest zone sets a precedent for other protests to be banned, and I think that is a dangerous road to head down.
ALRANZ respectfully disagrees.
The purpose of safe access zones is to stop the targeted harassment of people who decide to receive abortion care. Some people feel intimidated, others angry, at the cheek of these elderly men with gory signs who know nothing whatsoever of their circumstances, presuming to think they know better than the pregnant person does.
In the first place, there is no suggestion of banning protests. Rather, the location of protests would be regulated.
This is manifestly not for the purpose of banning or preventing protests. The protesters would not be required to protest only at 2 AM outside Wellington city limits. They would be free to protest wherever they want, except within the safe access zone.
They could even protest in places that attract politicians who could actually change the laws they oppose, like Parliament. Very few politicians at the hospital.
In the second place, freedom of expression is not an absolute right. Some human rights are absolute, meaning their breach can never be justified, like the right not to be tortured, and the right not to be enslaved. Freedom of expression can be subject to a balancing exercise against the rights of others.
Freedom of expression is also self-reflective. This means your right has been properly exercised when you have said your piece, or carried your sign – it does not require the state to supply you with the audience of your choice.
Let’s say you believe vaccinations cause autism. You can speak your piece on a street corner, and carry your sign up and down the footpath outside the headquarters of a pharmaceutical company. But it is not part of your freedom of expression to accost someone trying to get their children vaccinated or get a flu jab.
It is open to the state to balance the rights of private people seeking private health care against those who want to disturb and confront them at a vulnerable time. The state has a valid interest in protecting people from such harassment while they are going about their business.
In the third place, would preventing this kind of harassment even be controversial if the people bearing the brunt of it were not women seeking abortion care? Pregnant women who are seeking health care our society has stigmatised for years?
The protesters apparently hope the rest of society agrees with them that these women do not deserve the protection of the law. Over the years, in places like the USA and Australia, police seem to have agreed with the protesters that the usual laws against assault and harassment don’t apply in the case of these women. That usually doesn’t change until a specific law, like one creating safe access zones, is passed.
It is long past time receiving abortion care, like receiving any other kind of health care, is seen for the private act it is, and protected accordingly. We hope Parliament will give due consideration to these students’ petition in the coming debate on abortion law reform.
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.
by Scott Summerfield, ALRANZ Executive Board
You are on your way to the hospital. Something has come up, and you only have a short time to seek medical help before your life is changed forever. You are anxious, a million thoughts running through your mind, but you are resolved. You know you need to do this. You drive past a corner occupied by protesters. They have banners and signs that after a quick glance you know are directly targeting you. An older man catches your eye briefly; he knows nothing, but the look for you is a full on assault. It carries judgement, scorn, belittlement. You park, get out of the car, and walk past the protesters again into the hospital. One of them has given you a leaflet. Saying nothing, it goes into your bag. The hospital doors slide shut behind you, closing out the world and the protesters. What they are saying may affect you for months to come.
- A man getting a vasectomy?
- A man taking his child for chemotherapy?
- A woman seeking a surgical abortion at 9 weeks?
- A woman coming to get an influenza vaccination?
The answer is clearly c). It is only ever c). People seeking abortion services are the only ones whose attempt to procure personal health treatment is met with protest outside clinics and hospitals. Prayer vigils and placards telling them they are making a terrible mistake, that their choice is immoral, and worse. This will in almost all cases only affect women. Protests against women accessing abortion are frequent, calculated and cruel. This is about harassment.
These protests and protesters cause harm when they harass women seeking an abortion. A 2015 UK study demonstrated that women feel intimidated, fearful, uncomfortable in the presence of protesters. The Abortion Supervisory Committee in New Zealand has raised this matter with Parliament, in 2013, stating that “Harassment of those seeking or providing abortion services remains a significant concern to the Committee.”
And it is certainly harassment. Anti-abortion protest is explicitly about controlling the choices of women. The anti-abortion movement here, and internationally, is not a peaceful one, utilising shock, invasive imagery, threats, abuse, and even violence. With abortion law reform, it’s entirely possible that abortion services in New Zealand may move away from the anonymity of hospitals to specialised clinics, which will make the protests more targeted and likely much more aggressive.
Preventing harassment and intimidation of people seeking abortion services must be undertaken through government legislation because, frankly, nothing else will work. Three states and two territories in Australia have implemented safe access zones where it is illegal to protest outside an abortion clinic. Safe access zones exist in parts of Canada, the USA, the UK, and are likely to be introduced in Ireland.
Our government is committed to abortion law reform. Safe access zones outside abortion clinics and hospitals must be a part of this reform. Until we can ensure that women and others in need of abortion services from a clinic or hospital can access those services without intimidation, harassment, judgement, or even violence, we will not have safe access to abortion in this country.
For the past two years, ALRANZ has been working on a project to bring a complaint to the Human Rights Commission (HRC) about how New Zealand’s abortion laws breach the human rights of pregnant people.
We chose this route for several reasons.
First, complaining to the HRC is free. Taking a case to the High Court is expensive, and unlike some anti-choice groups, we do not have a pro bono QC on speed dial.
Second, it’s not a great stretch to frame our case against our current abortion laws in terms of discrimination, which is the only breach of the New Zealand Bill of Rights Act the HRC can consider. So even though we believe our abortion laws breach other civil and human rights, we can only talk about discrimination. It’s not ideal, but it’s not terrible.
Third, we are not doing this alone. Several people, whose experiences with New Zealand’s abortion bureaucracy range from the semi-functional to the horrific, have joined us in making this complaint. Their stories demonstrate how the discrimination of which we complain affects people’s lives, resulting in hurt feelings, loss of dignity, and cruel, degrading, and disproportionately severe treatment.
We complain that people seeking abortion care receive different and demonstrably worse treatment than other people seeking health care. This is because:
- no one else needs the approval to two certifying consultants to get health care;
- no one else can be denied health care because their reasons for seeking it are not the ones listed in the Crimes Act;
- no one else is forced to lie to their doctors about their mental health status if they want to receive health care;
- no one else is subject to arbitrary and unpredictable withholding of health care;
- only people seeking abortion referral or contraception can be refused service on the grounds of the provider’s ‘conscience’ with no warning and no recourse.
Our complaint now rests with the Office of Human Rights Proceedings. That office will decide whether it will represent ALRANZ and friends before the Human Rights Review Tribunal.
Our complaint is important because the current laws do not protect your right to your own body, or your inherent right to decide for yourself whether to receive abortion care.
Abortion law reform, as promised by our current government, may change the situation. It may cure the discrimination of which we complain. We hope that it does. To whatever extent it does not, ALRANZ will continue to fight.
Today there are celebrations all over New Zealand, marking the anniversary of one of the achievements that stokes the greatest pride in our country: first to recognise women’s right to vote.
There are other firsts that engender less pride, like the world’s highest rate of domestic violence.
Equality for women is a promise that has not yet been fulfilled.
This year the coalition government has taken steps to rectify New Zealand’s dismal 40 year record for not trusting women to decide for themselves whether they will carry a pregnancy to term. The PM and Minister of Justice have called for abortion to be treated as a health matter, rather than a criminal matter.
We welcome these steps, and hope they will lead to real change that will stand the test of time.
Women cannot be free or achieve equality unless they, and other pregnant people, can control their fertility. Pregnancy and childbirth come with serious consequences, physically, emotionally, mentally, and financially. Forcing these consequences on the unwilling is no longer acceptable.
Here at ALRANZ, we will raise a glass to Kate, then get back to work.