Abortion in New Zealand and How We Got Here

Untangling the criminal history of abortions in New Zealand shows our laws have long been out of step with society.

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27 November 2018, 12:18am

Abortion is legal in New Zealand but to get one most women have to lie.

In the year to June 2017, New Zealanders had 13,285 abortions, about one-fifth of all known pregnancies that year. The overwhelming majority were obtained through the circuitous, ambiguously legal method that exists in New Zealand—a system criticised by the United Nations for being an arbitrary, discriminatory mess.

As the law stands, the abortion of an under-20-week foetus needs to be signed off by two certified doctors, who say that the pregnancy would be a serious danger to the life or mental or physical health of the pregnant person; that it was a result of incest; that the child would be seriously mentally or physically handicapped; or that the pregnant person is “subnormal”, language which obviously gives an indication of how dated this law is. For foetuses over 20 weeks, abortions are only legal when the pregnancy is a serious threat to the mother’s life or if it prevents any serious, permanent injury to the physical or mental health of the mother. Rape is a side note for doctors to consider, but not a justification for abortion in and of itself.

Although the above Crimes Act requirements are explicit, Aotearoa’s societal zeitgeist doesn’t really match those restrictive sentiments. The 2016 Abortion Supervisory Committee figures show that of all abortions undertaken that year, 97 percent were on the grounds of a “danger to [the woman’s] mental health”—which, as a Terry Bellamak of Abortion Law Reform Association of New Zealand (ALRANZ) told VICE, means that most pregnant people wanting abortions have to, in practice, “lie about their mental health status to meet the grounds in the Crimes Act”.

Perhaps not such a big deal, you say. But the current system also still means women “run the risk of being denied care by an arbitrary and discretionary system” says the ALRANZ spokesperson. Figures obtained by Stuff show that in 2016, 252 “not justified” certificates were issued on the grounds that the women failed to meet the legal threshold. In 2012, the United Nations Committee on the Elimination of Discrimination Against Women called New Zealand’s abortion laws “convoluted”, making women “dependent on the benevolent interpretation of a rule which nullifies their autonomy.”

Last year, according to Medsafe, 39 kits containing abortion medicines were seized at the border—proof, says Bellamak, that for some women legal abortions are still too difficult to access. During the certification process women have to pay to visit two consenting certified doctors, after which they have to undertake the procedure at a licensed centre, which might be far away—the nearest for West Coast-based women, for example, is in Christchurch.

Those opposed to abortion also take issue with the current law. Right to Life fairly cites abortion figures as evidence of “de facto decriminalisation”. Parliament has for years neither condemned the inflated numbers nor sought reform. As National MP Judith Collins told TVNZ: "Some people think it's too conservative, some people think it's too liberal, I think it's something this parliament could do well to leave alone.”

Like much else in New Zealand, our legal stance on abortion was inherited from the English. Abortion first became a codified and punishable crime in England in 1803 when Lord Ellenborough’s Act was passed. Also known as the Malicious Shooting or Stabbing Act, it mainly deals with causing grievous bodily harm but includes as an offence “wilfully and maliciously” causing or attempting to cause a miscarriage or abortion. Interestingly, before the Reformation, English abortion cases were handled by the Catholic Church. Women who had abortions weren’t criminally punished, but instead given penance of different magnitudes—depending on whether they had aborted an “unanimated” foetus, which was considered the lesser sin of “anticipated homicide” (also applicable to using contraceptives), or had a late abortion, which was considered a homicide.

Under early New Zealand law, women couldn’t legally have an abortion unless the pregnancy was a threat to their lives or a serious danger to their health, and both they and their doctor had to agree on the “therapeutic” abortion. No official record exists of how many women back then sought abortions. But from 1927 onwards the Department of Health asked all hospitals to report the number of women admitted after complications from illicit abortions, which led a Department of Health official to estimate that in the mid-1930s about 10,000 abortions took place per year, compared to 28,000 live births.

In 1937, a committee of inquiry released the first widely publicised report on abortion. The report estimated that about 6000 abortions occurred annually (two-thirds of them illegal), and that New Zealand had one of the highest death rates from abortion in the Western world. The committee found there were four main reasons why women sought abortions: “economic and domestic hardship”; “changes in social and moral outlook”; “pregnancy amongst the unmarried”; and, in a small proportion of cases, “fears of childbirth”.

Illegal abortions were either back-street surgical operations or at-home solutions, which included taking hot baths while drinking half a bottle of gin, inserting knitting needles into the womb, falling down stairs, injecting disinfectant into the uterus using a syringe, or drinking metallic poisons. Many women suffered severe health consequences, some died. "I have no idea what the mixture contained, whether it was a health risk or what the margin of safety was," Dame Margaret Sparrow wrote in her book Abortion: Then & Now about her 1956 at-home abortion.

Abortions were legalised in 1967 in Great Britain, but New Zealand did not follow suit. It was only in 1977—after the opening of New Zealand’s first abortion clinic in 1974, and the subsequent attempted arson of that clinic, as well as the heated political marches from both pro-choicers and pro-lifers—that the Crimes Act was reformed and the Contraception, Sterilisation and Abortion Act came into force, blessing us with the current quasi-decriminalised, quasi-arbitrary framework we have today.

Even though New Zealand’s legislators from both major parties were sluggish to reflect prevailing attitudes, society was largely sympathetic towards those who had abortions. Barring some religious groups—which called abortions “sinful” and symptomatic of a “low standard of sexual morality”—New Zealanders in general expressed a need to better support women. Christian socialist E M Lovell-Smith wrote in 1937 in the Christchurch Press that abortions highlighted social inadequacies, while the 1937 abortion committee of inquiry suggested financial support and “greater sympathy and support” for unmarried mothers. In the mid-1930s, juries in four successive trials refused to find the abortionist Annie Aves—who had in one 18-month period seen 183 clients—guilty, despite the foetal remains police found buried in her backyard and women who had sought her services making statements against her.

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On September 4, 2017 then prime ministerial hopeful Jacinda Ardern said during a Newshub debate that should she become the next New Zealand leader abortions would be taken out of the Crimes Act. "It shouldn't be in the Crimes Act. People need to be able to make their own decision." Now Prime Minister, her party is in the process of making good on her promise. The Labour Party requested a ministerial briefing paper from the Law Commission, which was released in October.

The Law Commission proposed three alternatives: one) that any pregnant person could freely choose to have an abortion in consultation with their health practitioner; two) that there would still be certain requirements to be met, but that those would fall under health legislation, not the Crimes Act; or three) a combination of both but where those requirements would only need to be met when a woman was over 22 weeks pregnant. The Law Commission also suggested removing the doctors’ referral requirement and that a wider range of healthcare facilities, like Family Planning clinics, should be able to perform non-surgical abortions.

For groups who believe in the inherent sacredness of life from the moment of conception, liberalising abortion law would be a symbolic blow. Although those groups accept that in practice nothing much would change in New Zealand, it would “deny the humanity of the unborn child”, according to Right to Life’s website. Family First director Bob McCoskrie told the NZ Herald that removing “legislation about abortion from the criminal code and insert[ing] it to the health code is to equate a procedure to remove an unborn baby with a procedure to remove an appendix.”

In contrast, a working group for the International Human Rights Council sees criminalisation as an unnecessary stigmatisation of a necessary reproductive choice that all women should be able to make. “Ultimately,” it concluded, “criminalization does grave harm to women’s health and human rights by stigmatizing a safe and needed medical procedure.”

Reforming our law should mean equitable access for all—including those 252 denied abortions in 2016.