Abortion and other strange laws
Criminalisation of issue a dated oddity of NZ legal system, and it’s not alone
It’s comical to think that women’s reproductive freedoms could lie in the hands of a political party headed by a 74-year-old former lawyer — and a male one at that. It’s also comical to think that the person championing the change in abortion from criminal act to health issue is also a man and former lawyer.
Spare a thought for Andrew Little: he’s been trying to tackle the Family Court (and the whole justice system for that matter), on top of decriminalising abortion — moves that would divide most societies — in only his first term as Justice Minister.
If the bill passes, it would mean abortion would be removed from the Crimes Act, and women would be able to refer themselves provided they’re under 20 weeks pregnant. The issue of conscientious objection by medical practitioners would still be in force, but referrals to alternative options would have to be made for women at the earliest opportunity.
“The provision doesn’t go as far as I would have liked as it’s still weighted in favour of a doctor’s conscience over a patient’s interests,” Abortion Law Reform NZ (ALRNZ) president Terry Bellamak said.
Little opted for a modified Model C, as per the options put forward by the Law Commission last year. Model A included no statutory test and was the most liberal from Sir Douglas White, Belinda Clark, QSO Helen McQueen and Donna Buckingham.
Model B was the most restrictive, requiring physicians to reasonably believe an abortion was appropriate in the circumstances. And Model C imposed a statutory test after 22 weeks, two weeks more than what is in the current legislation.
(Side note: on the issue of Buckingham, I shudder thinking of my time in Laws 101 at Otago University trying to get my head around statutory interpretation. Had I paid enough attention to the definition of ejusdem generis, expressio unius, and noscitur a sociis, I might not have spent hours developing intricate schemes to avoid the final end-of-year exam. But I digress).
A modified Model C is all very good in theory, but it’s the 20-week limit — where health practitioners will have to “reasonably believe the abortion is appropriate” on the grounds of a woman’s physical and mental health and wellbeing — which brings us to last year’s complaint to
the Human Rights Commission (HRC). The case went under the radar, but six women, together with ALRNZ, alleged abortion laws at the time discriminated against women and pregnant people.
It was the first time in New Zealand case law that abortion was the subject of a complaint to the HRC. It was argued the framework breached the human rights of pregnant people because: no other people seeking healthcare needed the approval of two certified consultants; women could be denied healthcare if they didn’t meet the grounds listed in the Crimes Act; and could be denied an abortion or contraception on the grounds of the provider’s conscience, without warning, or recourse.
The Human Rights Commission investigated the complaint last year and organised a mediation, where the parties failed to come to an agreement. A statement of claim was presented to the Crown, and the case will be heard before the Human Rights Review Tribunal in the next year or so. But will the case be rendered redundant under the reforms?
The statement of claim may need to be amended, but the 20-week limit and the issue of conscientious objection are still discriminatory as women could be denied healthcare,
so the case will go ahead, Bellamak said.
Some may argue that decriminalising abortion would make very little difference in a pragmatic sense, but they may also argue that hell is just a sauna, stigmatisation and hurdles to healthcare aren’t a big deal, and in fact Gilead sounds like a pretty great dystopian paradise.
Let’s put it in the bin, and while we’re at it, it might be good to have a look at some of the other strange laws that are still in force.
Ma¯ ori may be ordered to leave a hotel if they’re deemed quarrelsome under Section 32 of the Ma¯ ori Community Development Act, for example.
Then there’s section 31(2) of the Impounding Act 1955, which allows landowners to kill trespassing animals, other than goats?! And no need to worry folks, section 13(2) of the Atomic Energy Act 1945 allows high schools to experiment with uranium and thorium.
But what is perhaps the most shocking — other than abortion being in the Crimes Act, and Winston Peters having the audacity to issue a referendum — poor pukeko aren’t protected under the Wildlife Act 1953.
Some may argue that decriminalising abortion would make very little difference in a pragmatic sense, but they may also argue that hell is just a sauna.