Abortion reform: NZ grasps the nettle again
Abortion has been such a political hot potato that 40 years have passed without the law being touched. It is now back in the spotlight. Claire Trevett reports.
When she was a child, Dr Alison Knowles woke up one morning to find her parents on the front lawn pulling up hundreds of small white crosses with babies’ names on them.
Her father, Dr John Taylor, was one of the leading abortion doctors in New Zealand after it was legalised in 1977, based mainly at the Epsom clinic in Auckland.
“I grew up with anti-abortionists outside my gate. They were at the front gate when Dad went off to work. The neighbours would go and water the garden and spray them with a hose.
“I’ve never had a problem with self-confidence and I thought it was kind of funny. I must have thick skin.”
Now, Knowles also works in the field, primarily at the Auckland Medical Aid Centre, the first abortion clinic established in New Zealand.
Pro-lifers are common outside the centre, especially during Lent. Knowles says they are nonthreatening, usually praying and using rosary beads. It does not bother her, but it does trouble some of the women.
The law she operates under has not had the same generational change. It is 40 years since politicians have been brave enough to touch the abortion laws. Those white crosses on a suburban front lawn are one of the reasons why. It was simply too hot to handle, too divisive.
But politicians have to turn their minds again to it after Prime Minister Jacinda Ardern asked for reforms to treat it as a health issue, rather than keep it in the Crimes Act.
Justice Minister Andrew Little will soon go to Cabinet for approval on a process to deliver on that after the Law Commission reported back on some options for that reform.
The Commission gave three options for legal change — and a wider raft of suggestions aimed at answering calls from the Abortion Supervisory Committee (ASC) as well as women’s rights and medical groups for abortion services to be more accessible.
All three options remove abortion from the Crimes Act and will no longer require two consultants to approve an abortion or for a woman to prove a birth would cause serious physical or mental harm to her.
The first would allow a woman to decide on an abortion for herself, however far along a pregnancy is.
The second would require a doctor to sign off on it after considering a woman’s physical and mental wellbeing.
Those criteria would be in health legislation rather than the Crimes Act and less stringent than at present.
The third option was a split model, allowing a woman to decide up to a certain point — such as 22 weeks — but requiring a doctor to decide whether it was appropriate for later term pregnancies.
Most — but not all — medical groups and pro-choice groups favour the first option. Pro-life groups prefer the status quo.
All would be a big change from the current law. It is a crime to perform an abortion unless certain circumstances apply.
They include incest and cases where there is a high likelihood the baby will be severely disabled.
In pregnancies of less than 20 weeks, an abortion is allowed if the pregnancy would result in serious danger to the mother’s mental or physical health.
That threshold increases after 20 weeks so it is limited to cases where an abortion is necessary to save a woman’s life or prevent serious and permanent injury to her mental or physical health. Rape is not grounds for abortion, although it can be taken into account.
In each case, two doctors who have been designated as certifying consultants, must agree that one of the grounds applies. And abortions can only be carried out at clinics licensed by the ASC to do so.
The ASC has argued for change, saying the the law is outdated, and fails to take account of modern developments such as “medical” abortions, in which women take two pills to bring on a termination. It has also argued for broader access to abortion services, including in the greater Auckland region. West Coast and Westport have no services at all.
change, politicians have
to vote on it.
Little’s preference is the split model. “I am of the view that this is a woman’s decision and a woman’s choice. And I am certainly of the view we need to have a change of the law that is reflective of the reality of people’s lives today.”
While late abortions made up less than 1 per cent of abortions in New Zealand and he did not expect mothers to suddenly demand late abortions, he did believe a different regime was warranted after 22 weeks.
“I certainly trust GPs and mothers to be able to make the decision, but equally given the likely viability of the foetus there are public policy considerations that come into it that I think a GP should be held to when they are giving advice.”
It is for the same reasons that the option has the most chance of success politically, given it addresses concerns many MPs have about abortions at a late stage of pregnancy.
The decision will ultimately be made by politicians. And if there is anything politicians do not want to talk about, it is abortion.
National Party MP Judith Collins is not silent on many matters, but abortion reform is one. She says she does not want to venture any view at all until the details are known.
She is sceptical of the need for an overhaul, or even the demand for it.
“It’s certainly not an issue people have been rushing into my office to ask me about, but we’ll have a look at it.”
A survey of MPs to get preliminary views got only about 30 responses. Those were mainly from Labour and Green Party MPs who supported removing abortion from the Crimes Act and were either undecided or split between the first, most liberal, option put up by the Commission, or the split option.
Although having put the promise of reform on the table during the election campaign, even Prime Minister Jacinda Ardern declined to be interviewed on what she thought of the Law Commission proposals.
Most MPs said they did not want to give a position until they saw what Little proposed.
Others did not want their views known because of the intensive lobbying the issue will inevitably spark.
It will be a conscience vote, and there will be differing views in most parties. But the National Party is likely to have the most opposed to any major change, partly because of its MPs’ own beliefs as well as its more conservative support base.
Leader Simon Bridges’ own position on abortion has moved somewhat since he said he favoured the status quo when the issue was first raised.
He is now open to removing it from the Crimes Act, but cautious about what would be put in its place.
He does not want change that would result in an increase in abortion — sticking to the “safe, safe and legal” creed he nicked from former US President Bill Clinton.
Clinton made those comments when the Democratic Party was shifting to a significantly more liberal stand on abortion. Bridges’ use of that mantra does not necessarily signal the same for National. He prefers there be some test to apply, especially for later-term pregnancies, saying he is very reluctant to see “abortions at will” at that stage.
Other MPs are worried about the divisiveness of the issue.
The 1970s were the high water mark for abortion protests as Parliament debated the issue.
National MP Mark Mitchell is the grandson of Frank Gill and has stark memories of those years.
Gill was Health Minister in the National Government after 1975 and strongly opposed abortion.
“I spent most weekends at my grandfather’s house washing horrible slogans off his fence,” Mitchell recalls. “I was a primary school boy and some of the stuff was really hateful. It left a big impression on me.”
He says issues such as abortion and euthanasia spark debates within families themselves.
“It is important we are brave enough to have these conversations but they can be so polarising.”
Mitchell is waiting to see what bill the Government puts up before making a decision himself.
A fear of sparking that kind of debate again is likely one of the reasons the issue has not been touched by politicians since the 1970s.
But the issue hasn’t been quiet for campaigners.
In 2012, anti-abortion group Right to Life’s battle for a review of abortions was dismissed by the Supreme Court. It had argued many abortions were wrongly approved on mental health grounds and called for the ASC to investigate.
An earlier High Court ruled in the group’s favour in 2008, but the Court of Appeal overturned the decision.
Pro-choice campaigners protested outside the courts, calling for women to have easier access to abortion.
EVERY THURSDAY morning, Kate Cormack goes along to the abortion clinic in the Hawke’s Bay and waits with others for the women to arrive. It is abortion day.
Cormack, a spokesperson for Voice for Life, calls this “outreach.”
She said the group hands out information on abortion and talks about other options.
“It’s been really successful. We’ve had more than 34 children and mothers receive help and go on to have the child.
“We call it outreach because we are really there to engage with the public. It’s different in every area. So many people come up and thank us afterwards.”
The practice of standing outside clinics has been criticised in other places, such as Thames where prolifers were giving out baby dolls.
The Law Commission report raises the prospect of a “safety zone” around such clinics to ensure women going in are not bothered, although protesters are already required to stay off private property.
Cormack says that would be a shame and the ones affected would be those women who did want another option. “It’s a very subjective issue.”
Voice for Life is a pro-life organisation that began as the Society for the Protection of Unborn Children. It has changed its name and expanded its scope to include the euthanasia issue, which is also before Parliament. These are busy times for Voice for Life.
The groups opposing reforms are strong in their beliefs, well-organised and not quiet about it.
The majority of the submissions to the Law Commission were from prolifers, for example many of whom had signed form submissions issued by groups such as Family First.
Cormack has a message for MPs, saying some seemed to believe society has “moved on” and reforms would happen without a fight.
“People underestimate the pro-life movement in New Zealand, so I think some MPs are going to get quite a shock,” Cormack says.
“Abortion is a huge issue with New Zealanders. We have concerns about why this is even on the table now. It’s not something New Zealanders have been asking for so why is it happening?”
The group believes there needs to be better recognition of the right of the foetus — and more emphasis on other options such as adoption or support to keep the baby.
In July, Voice for Life protesters
turned up at Parliament and laid out
13,285 pairs of bootees on the lawn to illustrate the number of abortions in 2017. New Zealand’s abortion rate has been dropping steadily since 2006, attributed to advances in contraception, especially long-term contraception. It is lower than in the United Kingdom. Women in their 20s are the largest group to seek abortions — 29 per cent of all abortions in 2016 were for women between 20 and
24, while a further
25 per cent were
25 to 29 years old. The number of teen abortions has dropped from about
4200 in 2006 to 1500 in
2016 (12.4 per cent). Those aged between 11 and 14 represented 0.2 per cent.
Opposite the pro-life protesters at Parliament was Abortion Law Reform Association head Terry Bellamak, who is advocating for broad reform. Bellamak says the protests of the 1970s died down only because the way certifying consultants applied the law ensured most women could access abortions they wanted.
“The political class just didn’t want to touch it, they didn’t want to go there.
“I think they felt there was no upside for them, because no matter what they said about abortion someone was going to be angry.”
This is a rare chance for reform — and Bellamak is hoping politicians will make that count, given it is unlikely to be touched again for some time.
“Right now, in New Zealand it takes from the time your GP refers you to the time you actually get the procedure, on average, 25 days. That is huge. That’s way longer than other OECD countries.”
She says opponents to the law reforms are mainly motivated by religion.
“That is problematic in a secular democratic society like ours. It’s not the business of the state to privilege one set of beliefs over another set.”
Many medical groups and pro-choice groups favour the Law Commission’s model which does not impose a legal test for doctors to step in to decide on an abortion at any stage.
Dr Knowles is one of them.
“I trust women to make the right decision for them. But to be honest, all three options are a massive improvement on the way it is now.”
She says the New Zealand system and measures such as requiring GP referral is very slow and removing some of the hoops would help ensure women could get abortions earlier. The earlier an abortion happens, the safer and less stressful it is for all concerned.
“Nobody wants to deliver a large foetus that is almost viable when they could have aborted a little sac that looks like a cotton wool ball at six weeks.
“Early care is better care.” Knowles believes informed consent rules are strong enough to ensure women had time to make the decision that suited them. But there was never a guarantee a woman would not regret her decision later in life.
“We all do things we regret in life. You might marry a dud. You might have too many wines and drive home. There are heaps of shitty things we do in life, and very occasionally a woman might regret having an abortion.”
The Medical Association has a different view — chairwoman Dr Kate Baddock agrees with removing the requirement for two consultants to certify an abortion and for abortion to be more accessible, but believes there should still be a test for doctors to apply contained in health legislation.
It is an effective way to build in “waypoints” during a woman’s decisionmaking.
“It’s a very final decision to make and women ought to be able to have the time and the resources to help them make the right decision for themselves.
“I’ve seen too many circumstances, having been a GP for 30 years, — where a woman, no matter what decision they make, ends up regretting it.
“And I think if there were a better process and counselling were available, those women might have ended up making the decision they wished they had made.”
There are also doctors who believe the law should stay as it is.
They include a group who refuse to consult or refer on abortion services based on the “conscientious objection” rights in the Contraception, Sterilisation and Abortion Act.
The main arguments put up for keeping the status quo include claims a change will result in a spike in abortion numbers, and in particular, concern about allowing “on demand” late-term abortions if there is no specific regulation.
Many of those involved in the medical profession also reject arguments about late abortions.
Those working in the field say there is nothing “at will” about a late term abortion.
They are very rare and usually the result of devastating news for a mother, such as her own life being at risk from the pregnancy, or the 20-week scan showing the baby has a serious health problem and is unlikely to live after birth.
Those in favour of reform also want to see more widespread changes in practice, to make abortion more accessible for women who do not live close to one of the practices licensed to offer it.
That was also an issue the Law Commission addressed, proposing changes to allow more doctors and services to offer abortion, and to widen the scope of those who can prescribe medical abortion pills, such as to midwives and nurse practitioners.
There would be practical issues around this — any such moves would require more resourcing for training and upskilling.
Baddock advocates greater access, but says there would be a cost. There is already a GP shortage and adding to the duties of already stretched GPs would exacerbate it.
There are also arguments for counselling to be mandatory.
Studies on the mental health impacts have been used on both sides, highlighting both the impacts of having an abortion and of having one declined.
The Law Commission report considered those studies, finding there was little that was conclusive and that it depended very much on the individual circumstances involved.
Meanwhile, women wait to see what will happen.