Law Commission Report

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.

The Law Commission has produces a report for the Minister of Justice. Their report contains three options for the reform of New Zealand’s abortion laws.

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. It eliminates much of the discrimination that mars the provision of abortion in New Zealand.

This is important because 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.

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 meets a statutory test.

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 legal approval.

Model B necessitates maintaining the pointless bureaucracy we currently have around ensuring the approval has been legally given and recorded. This may perpetuate the delays we see in the current system.

Even worse, Model B may inadvertently invite legal challenges from groups that oppose decriminalising of abortion. A statutory test cannot be wide enough to let people through who need care without being fuzzy enough to require interpretation. That interpretation can be challenged in court. For years anti-choice groups have tried to change the law via the courts. A statutory test opens the door for more of the same.

The Next Worst Option

Model C is like Model A up until the 22nd week. Then it turns into Model B.

Model C carries most of the disadvantages of Model B, and eliminates most of the advantages of Model A.

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.

Like Model B, Model C panders to those who believe women are not competent to make medical decisions for themselves.

Other Ideas from the Law Commission Report

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 in 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. 

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.

Conclusion

Model A is the option 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.

It has been over 125 years since New Zealand recognised women’s right to vote, the first country in the world to do so. Yet we are openly discussing continuing to treat women and pregnant people like children when it comes to abortion. We are better than this.

Model A recognises the reality that women and pregnant people are capable adults, with a right to make decisions about their own lives and bodies. ALRANZ supports Model A.