Abortion law needs to align with the times

Abortion is not a subject most people want to discuss, either as personal experience or as a matter of public policy. New Zealanders who remember our abortion debate of the 1970s probably have no wish to repeat it, but it looks likely the country will need to. The Labour Party wants to remove abortion from the criminal law and treat it as a health matter. Justice Minister Andrew Little has taken the first step, getting advice from the Law Commission on how that might be done.

The debate of 40 years ago ended, as difficult issues often do, in a compromise that satisfied neither side. The Contraception, Sterilisation and Abortion Act 1977 set out conditions under which abortion could be legally performed in New Zealand. Essentially two doctors had to decide that a pregnancy met one of the conditions under which abortion was permitted under the Crimes Act.

The law has turned out to be more liberal in practice than it was in principle. The Law Commission reports that the vast majority of abortions are authorised on the grounds that continuing the pregnancy would result in danger to the woman’s mental health and the procedure has become very common. The Abortion Supervisory Committee set up by the 1977 Act estimates 30 per cent of women have an abortion during their lifetime though it reports the rate has been dropping for the past 10 years, notably in the under-24 age group.

If there has been a problem with the law in practice it is that the need for two certifying consultants may be causing needless and distressing delays, especially from women living a long way from specialist services. While nearly 90 per cent of abortions are carried out within 12 weeks of conception, the commission reports that first trimester abortions are performed significantly later in New Zealand than in comparable countries. The earlier the abortion, the easier and quicker it is for woman and the health practitioners.

The Law Commission has given the Government three options for regulating abortion once it has been removed from the Crimes Act.

One option is to repeal all specific law on abortion and make it subject to the same regulations as any other health treatment. It would be available on request at any stage of pregnancy, depending only on the practitioner’s willingness to provide it.

The second option would retain a legal test — the practitioner providing the abortion would need to believe it was warranted having regard to the woman’s physical and mental health — and the third option is to impose that test only after 22 weeks gestation.

In submissions to the commission most health practitioners favoured the first option, making abortion purely a matter between the woman and her doctor. Labour will probably prefer that option too.

The public may be divided on whether to liberalise late-term abortions but any of the options would seem an improvement on the present regime, bringing the law up to date with real life.