WelCom December 2018:
Staff of The Nathaniel Centre
In October 2018, the Law Commission reported back to the Minister of Justice, responding to a request for advice on what alternative legal approaches could be taken in the event the Government decided to propose a policy shift to treat abortion as a health issue.
The Law Commission has set out three alternative legal models that could be adopted:
– Under Model A, with no statutory test, the decision to have an abortion would be made by a woman in consultation with her health practitioner;
– Under Model B, a statutory test is needed – the health practitioner would have to reasonably believe the abortion was appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing;
– Under Model C, for pregnancies of not more than 22 weeks gestation, it would be the same as Model A; and for pregnancies of more than 22 weeks gestation, same as Model B.
Under Model A, the abortion provisions in the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977 (CS&A) would be repealed. Models B and C would retain a specific statutory regime for abortion but significantly simpler than the current regime.
The Law Commission Report raises a number of concerns.
- The current law, as set out in the CS&A Act 1977 and the Crimes Act 1961, upholds a ‘tension’ between the needs and desires of the woman and the rights of the foetus/unborn child and seeks to balance both. The different models uphold this tension to different degrees, with Model A arguably removing the tension in all cases and Model C removing the tension for all abortions performed before 22 weeks, that is, more than 99 per cent of all abortions (ASC Report 2017).
- The Commission recommends that health practitioners with an objection be required to actively refer a woman seeking an abortion to someone who can provide the service, a significant departure from the current understanding and approach.
- Because all three of the proposed models frame abortion as a matter solely between a woman and her doctor, there is nothing to prevent the ‘inappropriate’ use of abortion for sex-selection or for reasons of impairment. The Law Commission suggests this ‘may warrant further consideration by the Government’, a view with which we concur.
- The Commission considers the current law and guidance surrounding informed consent for health procedures to be sufficient, however women routinely report that this is not reflected in actual practice.
The Nathaniel Centre is the NZ Catholic Bioethics Centre and is the official agency for the NZ Catholic Bishops.