Finally, after seven long years, Right to Life’s court effort to restrict abortion access in New Zealand might be over with the Supreme Court’s dismissal of their appeal. ALRANZ welcomes the news as a relief, but this clearly points — yet again — to the need for action to modernise our 35-year-old abortion laws to give New Zealanders the right to make their own decisions about their fertility, and to stop endless court assaults. This decision comes in the wake of the UN’s CEDAW Committee’s call for action to improve NZ’s “convoluted” abortion laws. Let’s face it, this decision could have gone the other way: this was only a majority 3-2 decision. Would Parliament have acted then? Will it act now? (The court suggests it should look at whether it considers the law is acting as it should.)
In its decision, the Court ruled that the Abortion Supervisory Committee does not have the power to scrutinize individual doctors decisions regarding approval of abortion (that is, whether or not the abortion meets the legal requirements set out in the Crimes Act 1961). In its media release, the court explained that the majority did hold that the ASC “could ask consultants how they were approaching their decision-making in general, that is, over the whole of their caseloads, but the Committee could not question them about how they came to a diagnosis or conclusion in a particular case, even a case selected at random and anonymised in the consultant’s report.” Essentially, this upholds the important Wall v. Livingston precedent set in 1982.
UPDATE LATER THAT SAME DAY: NoRightTurn is spot-on with this caveat/warning, though:
“But its not all good news; the Court also ruled that the ASC can and should be inquiring into the general decision-making processes by which individual clinicians reach their decisions – which, given Right To Life’s litigiousness, is going to invite more litigation as they target specific certifying consultants then try and force an ASC inquisition, then challenge any decision that everything is OK. Which is not going to encourage people to stay on as certifying consultants – but then, that’s the point: RTL can’t change the law, so they’ve turned to trying to intimidate and bully those who implement it.”
There’s some interest in COSTS (thanks commenter!): Below is what we’ve found in the judgment, and though we’re not lawyers, well not most of us, we think this means that each side pays its own, so the taxpayers have funded the defence and court costs, while RTL paid for itself. (If anyone finds out differently, let us know). Here’s what the judgement says:
“The appeal must be dismissed. But, recognising that each side has had some success, all costs in this Court should lie where they fall.”
Copies of the Judgement
You can download a copy of the Supreme Court’s 42-page judgment and the explanatory media release by visiting Judicial Decisions of Public Interest and looking for Right to Life New Zealand Inc. vs Abortion Supervisory Committee, case no. 2012 NZSC 68.