Understanding Family First New Zealand v Attorney-General

Understanding Family First New Zealand v Attorney-General

by Ella Shepherd

Since 2013, Family First New Zealand (one of the most prominent anti-choice lobby groups in the country) has been battling its deregisteration and loss of charity status with the Charities Board. On Thursday the Court of Appeal released its ruling. The Court held (Gilbert J dissenting) that Family First was a charity, and qualified for registration under the Act.

Family First said that it qualified to be a charity under two limbs: it advanced educational initiatives; and, provided other beneficial services to the community through promoting strong families. In addition, it had to show its other endeavours were all related to these two key purposes. 

Firstly, the Court was persuaded that Family First commissioned research reports that “largely resemble…that of a journal article in the relevant field”. This showed that Family First had a “clear purpose of stimulating a public debate…on important social issues relevant to families”. It therefore met the criteria for being a charity that advanced education. 

Secondly, the Court was bound by the recent Supreme Court decision in Re Greenpeace that held political advocacy groups were to be seen as promoting a public good, and could be eligible for charitable status. As the law has long recognised that stable families are in the public good, Family First qualified under this limb too. 

The final hurdle for Family First was to show that any other activities were merely ancillary to its charitable purpose. This refers to its political lobbying not directly linked to its family-focus, such as its opposition to the End of Life Choice Act. The Court held that Family First’s engagement on issues such as abortion, prostitution, censorship, and anti-smoking was part of its “broader purpose of supporting marriage and family as being foundational to a strong and enduring society”. Just because the activity was political, doesn’t mean that it wasn’t helping Family First’s main goal of family advocacy.

For these reasons, the Court decided it was eligible to be registered as a charity. What does this mean? 

Family First is once again a registered charity and is now tax exempt. This means it has more cash to put up billboards criticising independent choice on social issues. On the bright side, this decision further entrenches the Supreme Court’s position in Greenpeace that political lobbying can provide a public benefit.  This makes it easier for other truly beneficial political groups to become registered charities. 

Finally, the Court gave Family First a warning. Its activities were only in the public good because Family First said it promoted stable families. The Court said this would change if Family First was promoting traditional families instead. This might limit how Family First conducts its lobbying around stable, but non-traditional families, such as the right of same-sex couples to adopt children. Furthermore, advocating for positions that aren’t covered by promoting the public good of strong families (for example, cannabis reform) might be off-limits for Family First. The Court noted that Family First will need to bear that in mind in future. 

Ultimately, the majority opinion took a disappointingly shallow view on what Family First actually does. It ignored that Family First’s lobbying for the ‘public good’ often came at the expense of women, members of the rainbow community, and other minorities. By affirming that Family First operates in the public good the Court gives a veneer of undue credibility to Family First’s activities. 

Ella Shepherd studies law at the University of Auckland.

Who is Practicing Medicine?

Who is Practicing Medicine?

by Terry Bellamak

National MP Harete Hipango spent last week peddling the myth that because we reformed our abortion laws, people will get abortions right up until birth. It follows that she does not trust health practitioners or pregnant people. 

Those who followed the abortion debate last autumn will be aware that pregnancies that last 20 weeks are most likely wanted pregnancies, and that sometimes they must end because of a medical crisis. Those who paid attention will dismiss Hipango as an anti-choice extremist. But her lack of trust in health practitioners is not unique.

Parliament itself has shown it does not trust health practitioners to practice medicine without input from lawmakers, at least when it comes to reproductive health. If they did, they would leave them to it, like they do for other medical specialties.

This is not optimal. When lawmakers try to practice medicine, it never ends well. This is because lawmaking and medicine have fundamentally different alignments. 

Medicine is individual – doctors make decisions about the individual person in front of them, the patient, based on their unique circumstances. What is right for one person may not be right for another person, even in an identical situation. The job of a doctor is to serve both of those patients in the best way possible for them as individuals, even if it means treating them differently. 

Lawmaking is focused on aggregations of people, broad groups for whom they make rules. The rules are general and apply to everyone in the designated group. The law has a natural propensity to treat two people in similar circumstances the same, whether it is best for them or not.

This is why hard cases make bad law. The majority of people in a group may be served, or at least not harmed, by the rules affecting that group. But people at the edges may find the rules work against them in ways lawmakers did not intend.

For example, let’s say Parliament decided no abortions would be permitted after 20 weeks unless the pregnant person’s life was in danger. So if a foetus’s lung development was compromised such that it would asphyxiate shortly after birth, the parents would be required to give birth at the natural time and watch their baby die. 

For some parents, this would be their choice – a chance to meet their baby and hold it while it receives palliative care to ease its passing. But other parents would rather spare their child suffering by ending the pregnancy. For them, it would be a nightmare to carry their child to term knowing they would have to watch them smother to death. 

And just how close to death would the pregnant person need to be to allow abortion after 20 weeks? In Ireland, before the 8th amendment was repealed, abortion was allowed to save the mother’s life. But that did not save Savita Halappanavar – doctors did not understand or trust the law. So they let Savita die.

It turns out doctors are just as bad at practicing law as lawmakers are at practicing medicine.

Tempting as it might be for lawmakers to jump in and make medical decisions themselves by passing laws, the result is not good medical care. It forces a one-size-fits-all approach to decisions that should be tailored to the person or persons involved.

The Reprieve

The Reprieve

by Terry Bellamak

The United States Supreme Court has struck down Louisiana’s law requiring abortion providers to have admitting privileges at local hospitals – a requirement made both unnecessary and impossible to fulfil by the very safety of early medical and surgical abortions. To maintain such privileges, doctors have to admit a certain number of patients each year, but complications requiring hospitalisation are extremely rare – too rare to maintain their admitting privileges.

If the facts of the case sounds familiar, well spotted. This law is almost identical to the one the Supreme Court struck down in Whole Women’s Health v Hellerstadt in 2016.

Chief Justice Roberts cast the deciding vote. But please, don’t make the mistake of imagining for a minute that this means his heart is in the right place. His concern is not for anyone’s bodily autonomy or moral agency, but for his court’s standing in the eyes of the world, and its legacy in the eyes of history.

Roberts cast his vote on the strength of stare decisis – the legal principle that courts should decide similar cases in similar ways, so that people can have a reasonable expectation they know what the law is. The Supreme Court reversing itself in such an obviously indistinguishable case would have brought the court into disrepute amongst those who still believe legal principles should not give way to political considerations, at least in the courts.

Abortion cases that arrive on the court’s docket in future may not fare so well. American conservatives, like those on the court, seem hell-bent on returning the USA to the 1950s. As Mary Ziegler notes in her New York Times op-ed of 29 June 2020, modern conservatives demonstrate

“a candid willingness to ‘legislate morality,’” including in cases of abortion, sexual liberties, free speech and contraception.

Some are attacking Roberts and the court for not having overturned Roe v Wade already.

But with this decision, defenders of reproductive rights live to fight another day.

Tribute to De Rex Hunton MBE

Tribute to De Rex Hunton MBE

by Dame Margaret Sparrow

I first met Rex soon after the opening of the Auckland Medical Aid Centre in May 1974. It was a great relief to those of us who were having to refer women to Australia at that time and I wanted to see for myself to where I was referring patients. I was impressed with his openness and humility and greatly admired his initiative in establishing the clinic. It was a courageous act in the face of huge opposition. As a lecturer in Community Health he had been asked to identify issues that needed attention and he identified two – homosexuality and abortion.  But he didn’t just identify a problem, he did something about it.

Rex preferred to be independent and never joined ALRANZ but was always supportive. He had the support of a number of ALRANZ members:  inaugural President Isobel Stanton worked at the clinic as social worker, counsellor and supervisor, ALRANZ secretary Anna Watson became clinic administrator and Professor John Werry became an operating doctor.

It was frustrating when the clinic was raided by the police in September 1974 and even though the confiscation of patient files was later deemed illegal, police were able to use the files for prosecuting the operating doctor, Dr Jim Woolnough. Twelve selected cases were brought to trial and as I was involved I saw more of Rex at this time. He was stalwart in defence of the clinic and had always maintained high professional standards. He introduced suction curettage, sending Dr Woolnough overseas to learn this technique. He was the first to introduce abortion counselling and this remained a priority. After two High Court trials, the first resulting in a hung jury, Dr Woolnough was acquitted and the not guilty verdict was upheld by the Appeal Court.

Then came the Royal Commission and the December 1977 legislation which closed AMAC because of the Wall clause “and the danger cannot be averted by any other means”. We were back again referring women to Australia until the law was modified in July 1978. However even then there was a legal battle to restore the licence to AMAC and this did not happen until August 1979. Having endured all the upheavals of the 1970s it was understandable that Rex then moved on to other less controversial areas of medicine. Rex was respected and admired and an inspiration to those of us who followed in his footsteps.

He wrote of his strict upbringing and how difficult it was for him to come to terms with abortion but how “gradually I came to realise that only the woman herself can know the correct course of action.” New Zealand women owe a great debt to this very caring physician. His death cannot pass without paying a tribute to his long lasting influence.                                                                                                                   

The Legacy of Norma McCorvey

The Legacy of Norma McCorvey

by Terry Bellamak

Norma McCorvey was ‘Jane Roe’, the plaintiff in Roe v Wade – the landmark US Supreme Court case that recognised Americans’ constitutional right to choose to receive abortion care. 

In the 1990s abortion opponents hailed McCorvey’s supposed religious conversion to evangelical, born-again Christianity. They trotted her out in front of audiences, congregations, and cameras to sell their anti-choice message. She was a trophy – if Jane Roe no longer supports reproductive rights, then…

But it turns out McCorvey’s religious conversion was actually her retirement plan. In a ‘deathbed confession’ she admitted to filmmakers that she did it for the money – almost half a million dollars.Was it cynical? Of whom? McCorvey says anti-choice leaders were well aware that her ‘conversion’ was a fantasy. CNN writes: ‘Rev. Rob Schenck, an evangelical minister who worked closely with McCorvey, said she was “coached in what to say” and was paid because there was concern that she “would go back to the other side. What we did with Norma was highly unethical. The jig is up,” Schenck said in the documentary.’

They were happy to use her name and image to sell domination and control over pregnant people’s bodies as the moral high ground, knowing full well they paid her off to pretend her born-again conversion, and had to keep paying her off to keep her on message.

That is the anti-choice movement in a nutshell – tricking people into wasting time in ‘crisis pregnancy’ standover centres, pushing long-debunked myths about abortion causing breast cancer or mental distress, trying to frame bullying and harassment outside clinics as ‘sidewalk counselling’, crying over ‘full-term abortions’ as though they weren’t a result of medical crisis. Selling propaganda using melodrama, even when they are paying to stage-manage it. 

But in spite of the harm McCorvey’s actions did to the cause of reproductive rights in the USA, I can’t find it in my heart to condemn her. She had a hard life, and suffered insecurity from poverty, discrimination as a lesbian in the 1960s, and alleged sexual abuse in her family. Bottom line, she needed the money. That’s capitalism for you.

At least she came clean in the end. In so doing, she set the record straight – she always believed in the right to choose abortion care. 

Rest in peace, Norma.

The Ripple Effect

The Ripple Effect

by Terry Bellamak

 Last week, supporters of reproductive rights in Aotearoa had an historic victory. Parliament voted to reform our abortion legislation to recognise a pregnant people’s right to bodily autonomy up to 20 weeks, and to streamline abortion care, bringing it into line with international best practice. This is a change campaigners like Dame Margaret Sparrow have been working towards for over four decades.

These changes are a huge step forward for New Zealand. Pregnant people will be able to refer themselves to an abortion service without having to go through their GP as a gatekeeper. Early medical abortions can be completed at home. The Director-General of Health will be responsible for ensuring equitable access to abortion care and emergency contraception across the country.

The bill is not perfect. Health practitioners will still be allowed to refuse contraception without warning or notice. Safe areas did not make it into the bill, which may dissuade health practitioners from providing abortion care in small communities.

But the perfect should not be the enemy of good. We will continue fighting for improvements to our law, but this victory will do more than just change New Zealand.

The passage of the Abortion Legislation Bill is part of a larger story. It’s a story of change on an international scale. Around the world, nations are recognising the rights of women and pregnant people to refuse pregnancy. Each law change is another stone in the pond sending ripples across the globe.

When the Republic of Ireland succeeded in changing its constitution to allow for abortion law reform, it created a lot of ripples. Countries like New Zealand, Germany, and Argentina noticed that suddenly Ireland – Ireland, of all places! – had more sensible and liberal abortion laws than we did. Suddenly our longstanding legislative compromises did not look as reasonable or necessary.

Now, the change we have made to our old, retrograde laws has sent out new ripples. An editorial in a Jamaican newspaper has cited New Zealand’s decriminalisation to argue for abortion law reform there. And so it continues.

The Rev. Martin Luther King said the arc of the moral universe is long, but it bends towards justice. If he is right, and I hope he is, then abortion law reform in Aotearoa will give rise to many more celebrations around the world, as the human right of bodily autonomy is recognised more and more widely.