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New Zealand: Bill to Decriminalize Abortion Introduced, New Regulatory Approach Proposed

(Aug. 23, 2019) On August 5, 2019, the New Zealand Minister of Justice, Andrew Little, introduced the Abortion Legislation Bill in the Parliament. In a press release, Mr. Little stated that the Bill will

  • remove any statutory test on the health practitioner for a woman who is not more than 20 weeks pregnant
  • for a woman who is more than 20 weeks pregnant, require the heath practitioner to reasonably believe the abortion is appropriate with regard to the pregnant woman’s physical and mental health, and well-being
  • ensure that health practitioners advise women of the availability of counselling services if they are considering an abortion or have had an abortion, although counselling will not be mandatory
  • ensure that a woman can self-refer to an abortion service provider
  • enable a regulation-making power to set up safe areas around specific abortion facilities, on a case-by-case basis
  • ensure that practitioners who object to providing services on the grounds of conscience must inform the pregnant women about their objection, and that the woman can obtain the services elsewhere
  • retain the criminal offence for unqualified people who attempt to procure an abortion on a pregnant woman or supply the means for procuring an abortion
  • retain the criminal offence of killing an unborn child for any person who causes harm to a pregnant woman and in doing so causes the death of a fetus

In addition, under the Bill, “[o]versight of abortion services would be transferred from the Abortion Supervisory Committee [ASC] to the Ministry of Health.”

The Bill is being treated as a conscience issue, meaning that “Members of Parliament can cast their votes independently at each stage of the Bill’s progression through the House,” rather than voting on party lines. At the first reading of the Bill, on August 8, 2019, the House of Representatives voted 94–23 in favor of the Bill, which will now be considered by a specially-formed select committee, the Abortion Legislation Committee. The Committee will hear public submissions on the Bill and is due to report back to the House by February 8, 2020.

Following the vote, Mr. Little noted that there was no guarantee that the Bill would continue to receive the same number of votes at later stages, saying that “[i]nevitably some people vote for a first reading, just to get a bill in front of a Select Committee, without a commitment to voting it any further.”

Law Commission Advice

The proposals in the Bill follow an October 2018 New Zealand Law Commission briefing paper, titled Alternative Approaches to Abortion Law, which set out and analyzed three options for reforming abortion law in a way that treats abortion as a health issue:

  • Under Model A there would be no statutory test that must be satisfied before an abortion could be performed. The decision whether to have an abortion would be made by the woman concerned in consultation with her health practitioner.
  • Under Model B there would be a statutory test. The health practitioner who intends to perform an abortion would need to be satisfied that the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and well-being.
  • Under Model C, there would be no statutory test until 22 weeks of a pregnancy. After 22 weeks, the health practitioner who intends to perform an abortion would need to be satisfied that the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and well-being.

The Bill contains a modified version of Model C, making 20 weeks the point at which a statutory test applies. It also includes several other amendments recommended by the Law Commission.

Current Law

New Zealand’s abortion laws are currently primarily contained in the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977 (CSA Act). In particular, sections 183 and 186 of the Crimes Act make it an offense to unlawfully procure, or supply the means of procuring, an abortion. The offense relating to procuring an abortion explicitly does not apply to the woman or girl who seeks an abortion. The offenses are subject to the exceptions in section 187A, which sets out the meaning of “unlawfully.” These are often referred to as the grounds for abortion. The Law Commission explained the grounds on page 17 of its briefing paper:

Section 187A distinguishes between pregnancies of up to 20 weeks gestation and those of more than 20 weeks gestation. In the case of a pregnancy of up to 20 weeks gestation, a person will not commit an offence by procuring an abortion or supplying the means to do so if they believe that:

• continuing the pregnancy would result in serious danger to the life, or to the physical or mental health, of the woman (not being danger normally attendant upon childbirth);
• there is a substantial risk that the child, if born, would be “so physically or mentally abnormal as to be seriously handicapped”;
• the pregnancy is the result of incest or sexual intercourse with a dependent family member; or
• the woman is “severely subnormal”.

In assessing whether continuing the pregnancy would result in serious danger to the woman’s life or physical or mental health, it is permissible to take into account (where relevant) that the woman is near the beginning or end of usual child-bearing years; or that there are reasonable grounds to believe the pregnancy is the result of sexual violation. However, these factors are not themselves grounds for performing an abortion.

In the case of a pregnancy of more than 20 weeks gestation, an abortion can only be performed in more limited circumstances. A person who procures or supplies the means to procure an abortion will commit an offence unless they believe the abortion is necessary to save the woman’s life or prevent serious permanent injury to her physical or mental health.

Under section 44 of the CSA Act, it is an offense for a woman to “unlawfully take a drug or poison, or use (or permit to be used on her) any instrument or other means with intent to procure a miscarriage.” The above grounds also apply with respect to whether the action was unlawful. Under section 37 of the Act, it is an offense for any person to perform an abortion unless he or she is in an institution licensed by the ASC and unless a certificate has been issued by two certifying consultants. An exception applies where an abortion is performed by a medical practitioner who believes an abortion is “immediately necessary to save the life of the patient or to prevent serious permanent injury to her physical or mental health.”

The Law Commission further explains on page 20 that the CSA Act “establishes a process that must be followed before an abortion can be performed. It also provides for the oversight and monitoring of abortion services.”

In terms of the two “certifying consultants” referred to in the law, these

are doctors appointed by the ASC in consultation with the New Zealand Medical Association. At least half of the certifying consultants appointed must be practising obstetricians or gynaecologists. There must also be a sufficient number of certifying consultants practising in each area of New Zealand to ensure that any woman seeking an abortion can have her case considered without “considerable travelling or other inconvenience”.

Current Process

The Law Commission received information from the ASC, health practitioners, and various submitters in developing its advice to the government. The Commission’s briefing paper, starting at page 36, provided details regarding what it understood the common process in the country to be with respect to abortion. This included a finding that

[t]he process a woman goes through to access abortion services varies depending on a number of factors, including where she lives, which health practitioner she first consults, what stage the pregnancy is at and what method of abortion she chooses (where a choice is available). There is also considerable variation around New Zealand as to how long it takes to get an abortion.

In summary, the current process involves the following:

  • An initial appointment with a doctor who is able to refer the woman to an abortion provider.
  • The referring doctor “will usually carry out a routine blood test, genital swab (to test for sexually transmitted infections) and smear test (if required), and arrange an ultrasound scan to confirm gestational age.”
  • The referring doctor “may arrange for the woman to see a counsellor before she is referred to an abortion service provider.”
  • The referring doctor “may encourage the woman to take some time to think about her options and come back for a second appointment before she is referred to an abortion service provider. This appears to be reasonably common, although it is discouraged by the ASC Standards of Care.”

The ASC Standards of Care require district health boards (DHBs) to “ensure that all women who are eligible for publicly-funded health care have access to abortion services. This does not mean that abortion services are available in every DHB area.” The Law Commission found that “[d]epending on where a woman lives, the stage of the pregnancy and the reason an abortion is being sought, a woman may need to travel a significant distance to access an appropriate service.”

When a woman is seen by the abortion service provider, she receives an “individualised psychosocial assessment.” If she is identified as requiring additional support, she will be “actively encouraged to undertake counselling.” In fact, “[a]ll women must be offered counselling when they are considering an abortion and after having an abortion.” The following steps also take place at the clinic:

  • A “pre-abortion medical assessment,” which is often completed by one of the certifying consultants.
  • “The woman will be offered a choice of different methods of abortion (medical or surgical) if they are available at the service, there are no medical contra-indications and the gestational age allows it.”
  • “The woman’s case is then considered by two certifying consultants. Before an abortion can be performed, they must agree that one or more of the grounds in section 187A of the Crimes Act are met.”

The Law Commission found that,

[w]hile the CSA Act does not require the certifying consultants to speak to the woman unless she requests it, the Commission understands that they almost invariably do. One of the certifying consultants may have already spoken to the woman while undertaking the pre-abortion medical assessment. The second certifying consultant is often the doctor who performs the abortion. The certifying consultants review the woman’s medical history and assess whether she meets one or more of the legal grounds for abortion.

If the certifying consultants are both satisfied that one or more of the grounds apply, they sign a certificate to that effect.

In terms of time frames, the Commission stated that

[i]nformation provided to the Commission by DHBs suggests that from the time a woman is referred to an abortion service provider (which, as noted above, may be some time after a woman first requests referral) it commonly takes two to three weeks for an abortion to be performed.

Abortion Statistics

Among the statements made in its briefing paper (starting at page 31) with respect to the number of abortions in New Zealand were the following:

  • The ASC states that “around 30 per cent of women in New Zealand have an abortion during their life time.”
  • The number and rate of abortions performed have been declining over the past decade, with the ASC observing that “the widespread uptake of long-acting contraceptive devices may be a factor.”
  • “When performed in appropriate conditions by a trained health practitioner, abortion is a safe and usually straightforward procedure. It is significantly safer than carrying a pregnancy to term.”
  • In New Zealand, “most abortions occur during the first trimester (the first 12 weeks) of pregnancy. This accounted for 89.4 per cent of abortions in 2017. A further 8.3 per cent of abortions occurred in weeks 13–16. Only 1.7 per cent occurred between 17–20 weeks and 0.5 per cent after 20 weeks.”
  • However, “first trimester abortions are performed significantly later than in countries New Zealand often compares itself to,” and “many health practitioners the Commission spoke to considered the authorisation process required under the current law prevents abortions from being performed as early as would otherwise be possible.”
  • 97% of abortions in New Zealand “are authorised on the ground that continuing the pregnancy would result in serious danger to the woman’s mental health.”
  • “The ASC and health practitioners told the Commission that virtually all abortions performed after 20 weeks relate to wanted pregnancies and occur because a serious fetal abnormality is detected or there is a serious risk to the woman’s life or physical health.”
  • “In 2016 there were reportedly 252 cases in which a certifying consultant considered an abortion was not justified. This does not equate to 252 women being denied abortions, as a third certifying consultant may still have authorised the abortion. There are no statistics available on the number of women who are ultimately refused an abortion, or the reasons for abortions being declined.”