How are the criteria for abortion being applied in practice? Abortion is a controversial topic. Regardless of which view you take the stakes could not be higher. In the opinion of those who oppose abortion, they are arguing for the lives of the thousands of unborn children that are aborted every year. Where as those who are in favor of choice are arguing for a woman’s right to control her own body. Subject to much political and academic debate most people will be aware of the competing arguments. Abortion is much publicized by the media and always elicits heated debate.
However a lot of the arguments seem to focus on ethical and moral rhetoric. With each participant proposing unrealistic hypothetical situations as metaphors for abortion. Indeed a lot of debate about abortion ignores the actual legal framework surrounding the topic. This text will discuss the process of abortion, and the manner in which this legal framework Is being applied. Many people would be surprised to discover that abortion is in fact illegal in New Zealand. The Crimes Act 1 961 making procuring a miscarriage illegal under sass. This is the current legislation in effect in New Zealand.
However the act qualifies this offence by adding the term ‘unlawfully. This means that In the instances In which the act considers abortion as lawful, there will be no offence. Regardless of semantics as to the Viability of the fetus, any termination of pregnancy must be treated with the highest importance. However this is sadly not the case. As this text will demonstrate, abortion Is now on demand in New Zealand. The application of the principles of abortion has resulted In the decision being granted without the necessary consideration, or deliberation. The Intent of this paper Is not to demonstrate that abortion Is wrong.
Nor will It attempt to persuade that abortion Is Inherently right. However it is accepted that abortion may well be necessary. Unfortunately recent Judicial and public perception of abortion, and the views opposing it has led to a culture where abortions are justified as lifestyle decisions. Ending a pregnancy is not a decision that should be made based on expediency. However one looks at It, the decision has massive implications, and as such it is a decision that deserves its proper respect Emphasis needs to put Into avoiding the unwanted pregnancies, and better contraceptive measures.
This Is a problem that needs to be solved at the source, ether than treating the symptom. Many abortions are the result of incorrect, or misguided use of, and understanding of fertility, and contraception, and so are avoidable. Rather than making these traumatic experiences more available, the focus should be on cutting the need for them. The law needs to be applied as it is intended, rather than being left open to liberal History of Abortion Law Before the 19th century in England abortion was permissible if carried out before the ‘quickening .
The quickening is a term still some times used to describe the moment the fetus begins moving within the mother, or at least when she is able to feel it. Obviously at this point it was considered that the ability of movement meant the fetus was alive. This is usually around the 20-week time frame after fertilization. In 1803, a more repressive view was adopted, where via Lord Lunchroom’s Act, abortion both before and after the quickening was made an offence. Although the penalty for aborting before the quickening was less severe, this was the beginning of a harsh stance against abortion.
In 1861 the Offences Against The Person Act revised penalties, and included an offence for persons other than the mother who attempted to procure an abortion. This was adopted in New Zealand, in an exact replica of the English statute in 1866. In 1908 the Crimes Act defined when a child becomes a human being as when it has proceeded from its mother in a living states. This was a relatively progressive step, as it was enacted in order to protect doctors in instances where the child may have to be sacrificed in order to save the mother.
This marked the beginning of a trend towards a less repressive view of abortion, and led to the celebrated case of Bourne, in 19394. As the result of a violent rape, a 15 year old girl became pregnant. An esteemed Surgeon performed an abortion on the girl, openly, in a hospital. At the time abortion was unlawful unless it was conducted in good faith, for the sole purpose of preserving the life of the mother. His Honor considered the meaning of the words ‘preserving the life of the mother. ‘ He proposed that these words be construed in a reasonable senses.
He offered, “if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the Jury are tie entitled to take the view that the doctor, who, in those circumstances, and in that honest belief, operates, is operating for the purpose of preserving the life of the woman. “6 This opened the availability of considering the mental health of the mother, where as before, imminent danger of death or physical harm had been the requirement.
This decision was at first considered in NZ in Anderson, where it was applied and then again in Davidson. There the test was added to, with Entitlement providing that the serious danger did not include those normal dangers associated with pregnancy, and childbirth. This was a limitation on the Bourne test, as it required some extra threat to the mother’s health, apart from the normal dangers faced in a general pregnancy. Carried out 12 abortions from a Clinic in Auckland, and was brought to trial on the basis that these were unlawful.
This case went to the Court of appeal, where the court considered the directions made to the Jury by the High Court Judge were appropriate. The Judge had directed the Jury that in this instance, whether the abortion was ‘unlawful’ depended on whether it was necessary to preserve the woman from serious danger to her physical or mental health. The Trial Judge also included the words, ‘ not being the normal risks of pregnancy, but in the Court of Appeal the court considered that these words added nothing, and were unnecessary.
This was the beginning of the end for abortion critics. In 1977 the Contraception, Sterilization, and Abortion Act was enacted, and the Abortion Supervisory Committee set up. Section 33 of that act detailed that where 2 certifying consultants are of the opinion that the abortion would fall within the categories set out in SAA (1) (a-d), then they shall issue a certificate authorizing the abortion. There was now a legal venue for abortion that was legislated and available. A further, and decisive blow came in the form of the case Wall v Livingston 1 .
Here an anti-abortionist Doctor filed proceedings seeking to stop a young girl from procuring an abortion. The girl had been admitted to hospital, where it was established that she was pregnant, in accordance with the law she was then referred to two consultants who granted her authorization for an abortion. Another Doctor, Mr. Wall, through some means discovered this was her intention and sought to have it stopped due to there being no grounds for the abortion under the Act. He had briefly seen the patient at the hospital where he was employed as a pediatric specialist.
Mr. Wall had issued the proceedings on the grounds of Judicial review of the two participating consultants. He contended that there were no legal grounds upon which the procedure could be carried out, and the consultants had acted in bad faith in in proscribing the procedure. The court considered that Mr. Wall had no standing to bring the proceeding, as he was not a statutory participant in the proceedings. He could not institute a Judicial Review, nor could he claim to represent the rights of the unborn child.
The repercussions of this decision may not be immediately apparent. Essentially the court took away the rights of any third party to challenge any abortion on legal grounds, in a case-by-case basis. Without any legal involvement in the process, a third party cannot bring action against the consultants, or the mother. This meant that any challenge to abortion would have to come at a higher, policy level. Abortion has steadily become more available, and numbers have increased.
Various attempts by anti-abortion agencies have tried and failed to influence policy on a legal setting and failed. Relatively unchanged. Until recently. The Current Legal Framework Abortion is governed by the Abortion Supervisory Committee (ACS). This is empowered by the Contraception, Sterilization and Abortion Act 1977. 12 Section 10 sets out the Committee, and its constitution. It consists of three members, two of whom are medical practitioners. Section 14 provides the functions and powers of the committee, mainly in regard to regulation of abortion in New Zealand.
The ACS has the responsibility of keeping under review all the provisions of the abortion law in New Zealand, and the operation and effect of those provisions in practice. This includes issuing licenses to institutions and appointment of certifying consultants. The process itself is relatively simple. Wherever a women seeks to have an abortion from a medical practitioner, that individual will refer her to a certified consultant, if they are not one themselves. The law requires that two certified consultants authorize the abortion.
In determining the case the consultants must consider the case to one that is consistent with the terms set out in the Crimes Act (CA), which will be discussed noel 3. Abortion is prima facie illegal in New Zealand. The Crimes Act 1961 sass sets out that very person who with the intent to procure the miscarriage of any woman by way of the unlawful administration of any poison or drug, any instrument, or any other means, is liable for imprisonment. The crucial term here is ‘unlawfully. Section AAA sets out that any such act will be unlawful, unless it satisfies any of the set out exceptions.
Those exceptions are: (a)that the continuance of the pregnancy would result in serious danger (not being danger normally attendant upon childbirth) to the life, or to the physical or mental health, of the woman or girl; or (AAA)that there is a absentia risk that the child, if born, would be so physically or mentally abnormal as to be seriously handicapped; or (b)that the pregnancy is the result of sexual intercourse between? (I)a parent and child; or (ii)a brother and sister, whether of the whole blood or of the half blood; or (iii)a grandparent and grandchild; or (c)that the pregnancy is the result of sexual intercourse that constitutes an offence against section 131(1); or (d)that the woman or girl is severely subnormal within the meaning of section 138(2). It also should be noted that these exceptions apply only to pregnancies of no more Han 20 weeks. After 20 weeks abortion is only available where it would be necessary to save the life of the mother, or to prevent serious permanent injury to her physical or mental health.
So abortion is available in New Zealand where the continuance of the pregnancy would cause serious mental or physical danger to the mother. The basis of this test is certifying consultants, based on their medical expertise. Obviously this is necessary, as the criteria are inherently medically subjective. The problem is that Act provides no guidance for the interpretation of these principles. Neither in the CSS or the CA goes the legislation provide guidance as to what would constitute serious danger to ‘mental, or physical health’. As such Consultants are applying the section liberally, with little consideration. How then does New Zealand compare to other jurisdictions?
Right To Life v Abortion Supervisory Committee Perhaps the most influential, and controversial recent abortion decision is Right To Life v Abortion Supervisory Committee. 14 After trying and failing to effectively halt the abortions in New Zealand, the pro-life association ‘Right To Life’ had some success. The decision is particularly relevant because it addresses the current isolation, and many of the issues raised in this text. Namely that the current framework is being applied superficially, and without real consideration. The action was brought by the Right To Life, pro life advocacy group. It alleged that the ABS had misinterpreted its statutory duties, in that it had not been reviewing or calling for review of particular abortion cases.
The plaintiffs made a point of the fact that 98% of abortions were being granted under the mental health portion of the act. Which they alleged meant the law was being misapplied. In the High Court the Judge made note of the fact that the Committee had mentioned hat it seemed as though the law was being applied more liberally than intended. The court considered that there had to be some concern over these figures and found the Committee had misinterpreted it function, and had the power to call for individual reports. At this stage the importance of the decision was immense. The repercussions of such a decision would mean that the ABS had a duty to regulate the granting of abortions, and could call for individual reports from consultants where appropriate.
The result would be that consultants would be unable to pass every, or most abortions along under the mental health category, without due course. Obviously this would stricken abortion, as consultants would have to Justify their decisions. However the ABS appealed to the Court of Appeal, who overruled the High Courts decision, and considered that the Judge should not have made the comments he had. Right To Life appealed to the Supreme Court. The majority held that the committee could not review individual cases, whether before or after the event, and so dismissed the appeal. The court considered that any misgivings with the current law should be addressed by parliament, and it was not for the Supreme Court to weigh in on such sensitive matters. 5 revisions of the Act, read in their context, indicates that the true scope of the Supervisory Committee’s functions and powers is wider than the majority Judgment recognizes. “16 His Honor noted that if the ABS was not entitled to make such review, then its ability to function was severely limited, and the Parliamentary purposes of consistent administration would not be fulfilled. 17 His Honor recommended that the ABS was able to make after the fact review of individual cases. To maintain consistency and in accordance with the policy. The United Kingdom Being that our initial abortion law is based on the Auk’s, the two remain very similar.
Abortion in the I-J requires that two registered medical practitioners certify that the required medical grounds set out in the Abortion Act 1967 have been satisfied. The grounds for abortion are where continuation of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical, or mental health of the woman. Also there are grounds for abortion where there is a risk of severe mental or physical abnormalities. The Auk’s law is also interesting in that it provides that a court may also take into account the women’s actual, or foreseeable environment. The grounds are similar to our own, though interestingly the phrase ‘greater than if the pregnancy were terminated,’.
So in considering an application a Doctor must weigh up the mental danger to the woman in continuing the pregnancy, against the mental health of the women in terminating. However in practice, this seems to have little effect, as the abortion rate in the I-J is similar to our own. Indeed many non-residents travel to the I-J for abortions. Many residents of Ireland travel to the I-J every year to circumvent their own stricter laws. The laws of the UK have shaped our own enormously, and so it is not surprising that e still take our cue from them. Decisions such as Bourne have led to a very liberal application of abortion in the I-J. Ireland Ireland has one of the most restrictive views towards abortion. Abortion has been illegal since the founding of the republic.
The original source of law stems from the Offences Against the Person Act 1861, the same legislation New Zealand adopted. In Ireland this act remains the governing legislation on abortion. Procuring an abortion is still illegal if procured unlawfully, however the act does not specify any circumstances that will not be unlawful. Even while the I-J were beginning to take a such more liberal stance to abortion via decisions such as Bourne Ireland was consolidating its strict stance. Offering, “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. 20 This amendment placed the mothers and the unborn Child’s lives on an equal footing, and obligated the state to protect this right. Where as before one could not obtain an abortion in Ireland, it was relatively easy to obtain in the I-J. There existed a number of agencies and associations who aided and assisted such operations, providing addresses, and referrals. However after the amendment came into force, such institutions came under a lot of publicity. In Open Door and Well Women v Ireland, the Supreme Court of Ireland heard an application of injunction in regard to the actions of such an association. The companies were prosecuted for providing assistance to women seeking an abortion.
This was an example of the attempts to limit information about the availability of abortions in other nations. This began a lengthy battle for abortion sights in Ireland. The situation fluctuated until 1992, where in a landmark decision, Attorney-General v X, the court accepted the availability of abortion in the instance of severe risk to the life of the mother. Here a 14 yr. Old girl had been raped, and become pregnant. Upon learning of this the family decided to take her to the I-J to procure an abortion. The GAG sought an injunction to stop them leaving. The case went to the Supreme Court, after the High Court granted the injunction. The girl expressed that were the abortion not allowed, she would take her own life.
In the High Court, Costello J held that the sis of the girl taking her life, was not equal to the certainty of ending the life of the unborn child. 22 However this was overruled, where the Supreme Court provided that, “the true test should be that a pregnancy might be terminated if its continuance as a matter of probability involves a real and substantial risk to the life of the mother. “23 The court considered it irrelevant that the risk came from the mother herself. This decision has now been incorporated into statute. In 2013 the Protection of Life During Pregnancy Act was enacted. 24 This legalized abortion in a limited number of circumstances.
It provides that an abortion may be carried out where in the opinion of two medical professionals, (one in an emergency), are of the opinion that there is a real and substantial risk of loss of the woman’s life from a physical illness, and that risk cannot be averted in any other form. 25 It also provides that where three medical professionals are of the opinion that there is a real risk of loss of life of the woman, due to suicide, an abortion may be carried out if there is not another way to avert the inks. 26 This is an enormous step for Ireland, and as a result of this legislation, the first legal abortion was carried out on Friday, 23 August, 2013. This represents the other end of the scale. Where as abortion in the UK is fairly simple to arrange, the restrictions in Ireland are so severe that only a risk of death will make abortion an option. So what is the effect of this strict regime?
We know that fact that abortions in Ireland are so much harder to come by mean there are more live births? New Zealand? Ireland’s teenage pregnancy rate is significantly lower than the I-Ski’s. In a EUNICE report from 2001, the statistics of teenage births in many first world nations were compared. 7 Ireland’s ratio of births per 1000 women aged between 15 and 19 years old was 18. 7, compared to the Auk’s 30. 8. In fact, the Auk’s ratio is the highest of any country in Europe, only behind the United States. So should this be the model we have hitched our metaphorical wagon to? As it stands our abortion laws are being applied very liberally. As the Right To Life case made note of, 98% of abortions are granted under the mental health exemption.
What this demonstrates is an abuse of the legislation by certifying consultants. The legislation is there to restrict abortions, and to limit their availability, and yet Doctors re simply checking a box, rather than considering the situation carefully. Abortions are essentially on demand in New Zealand at present. Abortions need to be regulated, and reviewed. However it seems with the recent decision of the Supreme Court, the only body with any authority to do so has been relieved of that duty. If the Abortion Supervisory Committee does not have the power to review and regulate how the current laws of abortion are being applied, then who does?
The courts have demonstrated that no other parties can bring proceedings directly, and the since courts cannot intervene themselves, who is left? As McGrath J offered in dissent, “The Supervisory Committee is statutorily entrusted with the supervision of the provisions of abortion law, particularly decision making under ss 32 and 33, and its role in this respect should not be read down. “28 So what then has the result of this lax system been? Statistics & Interpretation A function of the ACS is to keep up to date information regarding the performance of abortions in New Zealand. As a result there are readily available statistics regarding the process. Figures date back to 1980, when abortion rates, and statistics began to be reported.
The numbers provided include total number of abortions per year, but the more telling statistic is the abortion rate. When talking about an abortion rate, we are talking about the number of women in every thousand who are undergoing the procedure. This provides a relative figure, which can be compared over years. In 1980 the abortion rate in New Zealand was 8. 5. This means 8. 5 women per every figure had risen to 14. Since 1990 though that figure has continued to rise, peaking in 2003 at 21 . This is an incredibly high number, as high as any other nation recording such figures. So what then is the reason for this high number? 9 A report from the UK considered abortion and repeat abortions in young women.
A main inquiry was conducted into why the abortion rate in the I-J, amongst young women was so high. The report identified that young women were continuing to have unprotected sex, where they were not intending to become pregnant, being fully aware of the possible consequences. As the report suggested, research and effort needs to be placed into avoiding conceptions that result in abortion. The report identified a worrying approach to pregnancy adopted by some young women. Where as many women when considering an unplanned pregnancy, and the SE of emergency contraceptive, such as the morning after pill, adopt a ‘Just in case’ strategy, others employ a Wait and see’ mentality.
What this demonstrates is a worrying approach to unwanted pregnancy. The issue is that so often these unfortunate scenarios are avoidable. The report noticed that in many circumstances the unwanted pregnancy was the result of incorrect use of contraception, or a misguided understanding of fertility. There was a worrying trend of pregnancies that were the result of an incorrect belief that the girl was infertile. The girl, after having unprotected sex once, and not coming pregnant, mistakenly believed this meant she no longer required contraceptive methods. Danger to Mental Health With abortion on demand in New Zealand, many young women are making decisions, without comprehending the consequences.
While many abortions are Justified on the grounds of mental health, there is evidence to suggest the danger to mental health post abortion can be very traumatic. Though the stigma attached to abortions is lessening, there still tends to be an association with guilt, or shame after undergoing abortion. The UK report identified a number of pre and post abortion mentalities that were connected to abortion, many f which were very negative. Many were based on religious notions about the morality of abortion. Some participants in the study expressed very strong views, about the inner struggle, “Their own personal belief system and again in some ways this draws in on what they’ve been exposed to at school because some of them come with very, you know, it’s wrong, it’s killing a life. 32 What this demonstrates is that abortion is still considered to be immoral by many necessary. “33 Essentially we are making available a solution that should really be a last resort. With abortion being so readily, and easily available, it often undermines he reality of the decision. Individuals who still have very strong feelings about the subject are undergoing the procedure, and having to deal the fall out for a very long time. Feelings of shame, and guilt were very prevalent in the participants of the study. Secrecy after an abortion is a common theme, individuals expressing that, “nobody tells anybody they’ve had an abortion. “34 This further complicates the matter.
Abortions are being preformed on women who have some belief that what they are doing is wrong. So although the abortion is being performed to avoid mental injury, the result is still mental injury. The problem is the technology has outpaced our morality. Even though the option is there, we have not yet come to grips with the decision itself. The result being that young women are making decisions that go against what they believe. Though stigma is declining, it has not kept pace with the availability of the procedure. Young women are making the decision based on ease of access, and repressing any feelings of guilt. Conclusion The problem isn’t abortion.
The problem is that our ability to make decisions such as these have far outstretched the ability to deal with the consequences. Young girls are owe able to decide to have an abortion without parental consent, and without any significant delay to the proceedings. They are diving headfirst into a decision that has an impact on their mental health for years to come. The ease with which one can obtain an abortion has led to a misconception of the ease in going through with it. Young people now do not associate the same risks with unprotected sex, as they do when abortion isn’t an option. The statistics show a steady rise in the ratio of abortions as they have become easier to obtain in New Zealand.
Having modeled our system on the Auk’s, we are now experiencing similar robbers to theirs. Already our teen pregnancy rate is approaching an alarmingly high level, with the I-J, and the US in our sites. As the research shows, many abortions are the result of easily avoidable pregnancies. Myths regarding fertility, and bad education concerning contraception lead to the majority of these pregnancies, and as such should be the focus of reform. The answer is not to make abortion more available, it is to make it unnecessary. Young girls going through with abortion are often conflicted about their decision. Many of them still in some way feel guilt, and shame about having undergone the procedure.
To export a reference to this essay please select a referencing style below: