History
19th century and early 20th century
English law, applied in New Zealand in 1840, outlawed abortion. In 1867, the New Zealand Parliament made it an offence to cause a miscarriage. Under the law, abortionists were considered criminals while the woman seeking an abortion was considered an accomplice to the crime. If a woman induced her own abortion, she was considered a criminal under the law. Therapeutic abortions were available under limited circumstances such as when the woman's life or mental health was in serious danger. During the late 1930s, this right was extended by a court judgment. However, abortion was still strongly frowned upon by society with many doctors refusing to perform terminations.[10]
In 1936 the First Labour Government of New Zealand set up a committee, led by D.G. McMillan, to inquire about the incidence of septic abortion in New Zealand. The report estimated that at least 13 in every 100 pregnancies ended in criminal abortion, that number having increased over the five years prior. In the same time period, while maternal deaths had dropped, the number of deaths due to septic abortions had increased, accounting for two-fifths of total maternal mortality. Based on evidence heard before the committee, it was found that a major reason for abortions was a change in social outlook, "particularly towards the rearing of large families" and "an attitude of pitying superiority towards the woman with many children." Other reasons included lack of suitable housing in cities, lack of help for women in performing domestic labour, and the widespread use of ineffective methods of contraception.[11][12][10]
In the 1930s, Isabel Annie Aves was tried four times for "unlawfully using an instrument with intent to procure a miscarriage" without conviction.[13] In the 1940s, activists such as Alice Bush advocated for access to doctor-provided abortions.[14]
Changing attitudes, 1960s–1970s
Following the Second World War, the Sexual Revolution during the 1960s led a change in societal attitudes towards matters of sex, birth control, and motherhood including abortion. These also gave rise to the emergence of Second-wave feminism and the Women's liberation movement during the 1960s and 1970s. Between 1965 and 1970, the number of abortions performed in public hospitals jumped from 70 in 1965 to more than 300 by 1970. Public debate increased following the legalisation of abortion in Britain in 1967, and court decisions in Australia in 1967 and 1970 legalising abortion. The legalisation of abortion in Australia enabled New Zealand women who could afford to travel there to have abortions in Australia.[15][16]
Growing public awareness and debate about abortion led to the emergence of rival anti-abortion and abortion rights groups. Early anti-abortion groups included the Society for the Protection of the Unborn Children (SPUC) and REPEAL while early abortion rights groups included the Abortion Law Reform Association of New Zealand (ALRANZ) and the more militant Women's National Abortion Action Campaign (WONAAC).[15] According to McCulloch, several Socialist Action League members including Kay Goodger were involved in the formation of WONAAC.[17]
During the 1970s, the Catholic Church, conservative Protestant denominations, and the Mormons opposed abortion. By contrast, the Anglican, Baptist, Methodist, and Presbyterian denominations took a more liberal stance; which generated controversy among their members.[15][18] In addition, abortion attracted bipartisan support from some members of the New Zealand Parliament including Labour MPs Mary Batchelor and Whetu Tirikatene-Sullivan, and National MPs George Gair and Marilyn Waring.[15]
The first abortion clinic in New Zealand was the Auckland Medical Aid Centre (AMAC), which opened in 1974 and introduced the practice of vacuum aspiration to New Zealand. By the end of its first year, it had provided 2,288 women with abortions. By 1975, this figure had risen to 4,005. AMAC attracted opposition from anti-abortion activists including arson attacks. The New Zealand Police also raided AMAC in 1974, leading to the prosecution and acquittal of one of its doctors, Jim Woolnough.[19][20][21]
Decriminalising abortion, 1977–1978
In response to AMAC, the New Zealand Parliament passed Labour MP and SPUC member's Gerard Wall's Hospitals Amendment Act 1975 which limited the provision of abortion services to licensed hospitals. While AMAC was forced to close, it later reopened in 1980 after buying a private hospital. The Hospitals Amendment Act was later invalidated on technical grounds. In response to the closure of AMAC, abortion rights activists established the Sisters Overseas Service (SOS), which helped women travel to Australia for abortion operations in 1978 and 1979. McCulloch estimates that SOS chapters across New Zealand including Auckland and Wellington sent between 4,000 and 4,500 women to Australia for abortion operations during that period.[19][22] National Party MP Frank Gill later tried to entrench Wall's bill through the Health Amendment Bill 1976 but pro-abortion rights National MP George Gair managed to pass an amendment deferring it by twelve months.[23]
In response to growing public debate around abortion, Parliament set up a Royal Commission on Contraception, Sterilisation and Abortion to consider public policy on these issues. At the Commission's recommendations, the Third National Government passed the Contraception, Sterilisation, and Abortion Act 1977 (CS&A Act 1977) on 15 December 1977, which established the legal framework for abortion in New Zealand. Under the CS&A Act, a woman seeking abortion had to see their doctor and the two medical consultants, who would assess the mental and physical grounds for carrying out an abortion. A surgeon would also be needed to perform an abortion. Counselling was also made available to women seeking an abortion. The CS&A Act also established an Abortion Supervisory Committee to regulate the certifying consultants responsible for permitting abortions. The Act also required district health boards to fund abortions. During the late 1970s and 1980s, several public and private abortion clinics were opened in Auckland, Wellington, and Christchurch.[19][24][25]
The CS&A Act was criticised by the feminist group Campaign to Oppose Repressive Abortion Laws (CORAL) and WONAAC as being too restrictive and infringing on women's reproductive rights.[26] In 1977, the Government also amended the Crimes Act 1961 to allow abortion within the 20 weeks gestation period. After 20 weeks, abortion was permitted on the grounds of saving the mother's life and preventing serious permanent injury to her mental and physical health. In 1978, the Government further amended the Crimes Act to permit abortion on the grounds of saving the mother's life, mental health, and physical health; foetal abnormality within the 20 weeks gestation period; and incest or sexual intercourse with guardians and family members. In 1986, the Crimes Act was further amended to take into account factors like the extremes of age and sexual violation.[27][8]
Post decriminalisation, 1977–1990s
Following the decriminalisation of abortion, ALRANZ lobbied several hospital boards into establishing more abortion clinics and services. In November 1978, Epsom Day clinic opened in Auckland in November 1978. This was followed by the establishment of Wellington's Parkview Clinic in July 1980 and Christchurch's Lyndhurst Hospital in January 1986. Together with AMAC, these three clinics have provided the vast majority of abortions in New Zealand. ALRANZ and other abortion rights groups shifted their attention to lobbying for sex education in schools and easing young people's access to contraceptives.[28][19] In response, anti-abortion activists and groups picketed abortion clinics and joined forces with socially-conservative moral groups including Moral Rearmament, Family Rights Association, Society for the Protection of Community Standards (SPCS), and "Family 75" during the late 1970s and 1980s.[29]
SPUC was at the forefront of opposing abortion during the 1980s. In 1980, SPUC secured the removal of two members of the Abortion Supervisory Committee on the grounds that they had been promoting abortion by encouraging hospital boards to establish abortion services. That same year, two SPUC–backed candidates were elected to the Wellington hospital board. In 1981, the president of SPUC's Dunedin branch, John O'Neill sought injunctions on behalf of men who wanted to stop their lovers or partners from having abortions. In three of these cases, the women involved managed to obtain their abortions before the courts could intervene. When a judge imposed an interim injunction against an abortion an hour after it had taken place, WONAAC and Alranz staged a protest outside the Court of Appeal in Wellington to protest the judge's action. In 1982, SPUC also unsuccessfully lobbied for all foetuses to be officially registered in the national Registrar of Births, Deaths, and Marriages.[30]
In 1982, a New Plymouth paediatrician Melvyn Wall sought a judicial review of a decision by two certifying consultants to allow an abortion for a fifteen-year-old girl, alleging that they had acted in "bad faith". Wall's motion was dismissed on the grounds that he had no right to mount the challenge and that decisions by certifying consultants were deemed not open to review. While SPUC's President Marilyn Pryor regarded Wall v. Livingston as a major loss for anti-abortion advocates, ALRANZ welcomed the ruling for upholding women's access to abortion services. WONAAC also successfully appealed to the Medical Practitioners' Disciplinary Committee for Wall to be censured on the grounds that he had violated patient confidentiality. Wall was also fined NZ$1,500. While Wall had the censure revoked, the Medical Council found him liable for professional misconduct and added $500 in costs to the original amount.[31]
In 1983, National Member of Parliament Doug Kidd, with the support of SPUC, introduced a private member's bill called the Status of the Unborn Child Bill. In response, the feminist National Member of Parliament Marilyn Waring introduced the pro-abortion rights Contraception, Sterilisation and Abortion Repeal Bill to challenge Kidd's bill. Waring also leaked news about Kidd's affair with a parliamentary secretary to WONAAC. Ultimately, both Kidd and Waring's bills were defeated and no changes were made to existing abortion legislation. While Pryor blamed the Status of the Unborn Child Bill's hasty introduction for its defeat, abortion rights journalist Alison McCulloch has attributed the bill's defeat to both Waring's counter-bill and Kidd's affair.[32]
In 1987, O'Neill of SPUC appeared before the New Zealand Parliament's Justice and Law Reform Committee and demanded the dismissal of the Abortion Supervisory Committee (including the two SPUC–backed members) on the grounds they had failed to carry out their functions. That same year, Leo Buchanan, the medical superintendent of Masterton hospital refused to apply for a renewal of the hospital's license to provide abortion services, citing his conscientious objection to abortion. Buchanan's actions effectively ended abortion services in the Wairarapa region. In 1991, O'Neill challenged the validity of abortion licenses throughout New Zealand, leading to the temporary suspension of abortion operations in Dunedin and Waikato for several days. The Otago Health Board's abortion license was suspended on the grounds of a legal technicality connected with the change from the Hospitals Act 1975 to the Area Health Boards Act.[33]
During the late 1980s, WONAAC unsuccessfully lobbied several feminist MPs including Sonja Davies and the Minister of Women's Affairs Margaret Shields for a more liberal abortion law in the form of a private member's bill. However, the Fourth Labour Government thought there was insufficient support for further abortion reform and instead passed the Contraceptive, Sterilisation and Abortion Amendment Act 1990, which eliminated the restriction on who could educate and provide services and supplies. The–then Health Minister and future Prime Minister Helen Clark sponsored the CS&A Amendment Act.[34][35]
During the late 1980s and early 1990s, an anti-abortion group called Operation Rescue New Zealand was active, modeling itself after the American-based Randall Terry's Operation Rescue organisation. Operation Rescue used aggressive clinics including picketing abortion clinics, remonstrating with abortion patients, breaking into buildings and operation theatres to disrupt operations, and distributing leaflets attacking abortion practitioners as "baby killers". Operation Rescue was also criticised for its aggressive tactics by the anti-abortion movement with Women for Live's president Anettta Moran rejecting the group's willingness to break the law. While SPUC's leadership was initially critical of Operation Rescue NZ, the leadership subsequently relented and allowed SPUC members to participate. Operation Rescue NZ had a large Catholic component including priests and clergy. According to McCulloch, an estimated half of Operation Rescue's supporters were also SPUC members. Operation Rescue's activities also attracted counter-protests from WONAAC and the Wellington-based group Choice.[36][37]
Into the 21st century
Attempts at abortion law reform, 1999–2001
In 1999, the Abortion Supervisory Committee's annual report criticised MPs for using it as a buffer between them and abortion interest groups, allowing them to abrogate their responsibilities. In response to that report, the newly-formed Fifth Labour Government, which was in coalition with the Alliance party, made attempts to reform New Zealand's abortion laws. After several months of preparatory work, the Cabinet agreed to amend the Contraception, Sterilisation and Abortion Act 1977 in July 2001 to allow one doctor to approve an abortion. The Cabinet also submitted a Supplementary Order Paper exploring the grounds for abortion, possible decriminalisation, and the abolition of the Abortion Supervisory Committee. However, this plan was scuttled due to growing troubles within the Labour–Alliance coalition government.[38]
Introducing medical abortions, 2002–2003
Former ALRANZ president Margaret Sparrow established a non-profit company called Istar to import mifepristone (formerly known as RU 486), a pill used in medical abortions to cause the embryo to dislodge from the uterine wall, and a prostaglandin supplement to expel the remains.[39] In 2002, Istar convinced the Abortion Supervisory Committee to seek a Court ruling on how the CS&A Act 1977 applied to the use of mifepristone. In April 2003, Justice Durie ruled that women seeking medical abortions must take medications in a licensed facility but need not remain there between taking the two sets of tablets, which are taken 48 hours apart. Women also need not stay in the facility until the expulsion of the foetus completes the abortion.[38][40][41]
2004 Parental notification amendment bill
In 2004, the Fifth Labour Government passed the Care of Child Act 2004 which allows a girl under the age of 16 to seek an abortion through the framework of the CS&A Act 1977.[7][8][9] That same year, National Party MP Judith Collins, with the support of anti-abortion lobby group Voice for Life (formerly SPUC), proposed an amendment to that law requiring anyone under 16 years of age to notify their parents before having an abortion.[42][43] Collins was opposed by ALRANZ,[44] the New Zealand Medical Association and New Zealand College of General Practitioners.[43]
A NZ Herald Digipoll showed that 71% of New Zealanders believed parents should be informed about whether or not their child was to have an abortion, with 60% believing this should be legally mandatory.[45] This "parental notification" legislation was heavily defeated, as the New Zealand Medical Association and New Zealand College of General Practitioners objected that the abrogation of medical confidentiality would endanger pregnant incest survivors, and/or those within similar dysfunctional families and abusive parents.[43]
2008 informed consent amendment bill
During the 48th New Zealand Parliament, former Kiwi Party list MP Gordon Copeland placed a members bill, the Contraception, Sterilisation and Abortion (Informed Consent) Amendment Bill, in the ballot. It was based on an Australian Capital Territory 'informed consent' piece of legislation, since repealed. It was not drawn from the ballot, but in April 2008 Copeland sought to introduce it for consideration by leave, which he did not receive.[46] Copeland has since been voted out of Parliament, as he did not secure a constituency seat at the New Zealand general election held in 2008 and his Kiwi Party polled well under the five percent threshold under the MMP framework in the Electoral Act 1993.[47][48]
Chadwick's proposed amendment, 2010
In July 2010, Labour MP Steve Chadwick proposed an Abortion Reform Bill to take abortion out of the Crimes Act 1961. The anti-abortion organisation Voice for Life opposed the Bill while ALRANZ supported it.[49] Due to fierce opposition from anti-abortion opponents and a lack of sufficient parliamentary support, Chadwick was unable to get the numbers to put her Bill into ballot. Even the progressive Green Party of Aotearoa New Zealand declined to issue a public statement supporting Chadwick's bill. After Chadwick lost her seat in Parliament in the 2011 general election, she lamented the weakened state of the abortion rights movement in New Zealand and opined that change was only possible if the New Zealand Law Commission produced recommendations that any government would touch upon.[50]
Challenges to abortion, 2009–2012
In 2009, the anti-abortion group Right to Life New Zealand launched a court case against the Abortion Supervisory Committee, accusing it of not sufficiently regulating abortion by allowing broad interpretation of the mental health exception. A High Court decision supported some of Right to Life New Zealand's points, finding that there was de facto abortion on demand. However, the Abortion Supervisory Committee appealed this to the New Zealand Court of Appeal.[51]
On 1 June 2011 the Court of Appeal overturned the earlier High Court verdict favoring Right to Life, finding that there was no statutory reference to embryos and foetuses within New Zealand law, and therefore no grounds for further attempted interference with existing abortion access procedures. It did not, however, overturn the finding that there was de facto abortion on demand in New Zealand.[52] In March 2012, Right to Life appealed to the New Zealand Supreme Court, which dismissed their appeal by a 3–2 majority in August 2012.[53][54]
On 7 April 2011, during the term of the 49th New Zealand Parliament, Māori Party co-leader Tariana Turia moved that an anti-abortion Pacific Island doctor, Ate Moala, be appointed to the Abortion Supervisory Committee. The vote was lost 70–30 against, with twenty absences or abstentions.[55] That same year, anti-abortion groups successfully campaigned against an attempt by Family Planning New Zealand to introduce early medical abortions at one of its clinics.[56]
Renewed abortion reform efforts, 2018
During the 2010s, a wave of international abortion reform law changes led to a renewed campaign by New Zealand abortion rights advocates to decriminalise abortion. ALRANZ and other abortion rights groups argued that abortion was a health and reproductive rights issue that should be removed from the Crimes Act. In 2018, ALRANZ and a group of women who had had abortions filed a case with the Human Rights Commission challenging the existing abortion legal framework in New Zealand.[41]
In late February 2018, the Minister of Justice Andrew Little sought advice from the New Zealand Law Commission on realigning the country's abortion legal framework towards a health approach. The Law Commission also received 3,419 public submissions on abortion law reform between 4 April and 18 May 2018. In late October 2018, the Law Commission proposed three options: having no statutory test to make sure the abortion was appropriate at any point; taking abortion off the Crimes Act but having a statutory test; or only having a test for later-term abortions, after 22 weeks.[57]
2019–2020 abortion reform legislation
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Main article: Abortion Legislation Act 2020 |
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On 5 August 2019, the Justice Minister Andrew Little announced that the Government would be introducing new legislation giving women access to abortion for the first 20 weeks of pregnancy without having to navigate legal loopholes and removing abortion from the Crimes Act 1961. However Prime Minister Jacinda Ardern has said it is not a government bill.[58]
Other changes include allowing women to self-refer to an abortion service, ensuring that health practitioners advise women about counselling services, establishing safe areas around abortion facilities, and ensuring that conscientious objecting doctors inform women about their stance and alternative services. The Government adopted the Law Commission's third approach for a test on later-term abortions but reduced the time-frame to 20 weeks. The test for late term abortions is contained in section 11 of the proposed bill. Section 11 states that "a qualified health practitioner may provide abortion services to a woman who is more than 20 weeks pregnant only if the health practitioner reasonably believes that the abortion is appropriate in the circumstances..."[59]
The Down Syndrome advocacy group "Saving Downs" and disability advocates objected to Section 11 on the grounds that would facilitate the termination of babies with disabilities right through to birth.[60][61] Both ALRANZ and Family Planning have welcomed the proposed changes but criticised the 20-week limit.[62][63][64][65] By contrast, conservative lobby group Family First New Zealand criticised the Government's abortion law reform as "radical... and anti-human rights".[66]
Labour and its coalition partner New Zealand First engaged in several months of negotiations discussing the legislation. The Minister for Children and New Zealand First MP Tracey Martin reportedly played an important part in these negotiations. Despite initially ruling out a referendum, NZ First leader Winston Peters subsequently demanded a binding referendum on abortion reform. In response, Opposition National MP Amy Adams criticised NZ First's U-turn, saying that the matter should be decided by Parliament. National Party leader Simon Bridges has indicated that he would support a Select Committee examining the bill. Voting for the new legislation will be done through a conscience vote.[67][68][69] Justice Minister Little has ruled out NZ First's calls for holding a referendum on abortion reform. National Party leader Bridges has indicated he will vote against abortion reform but will allow National MPs to exercise a conscience vote.[70]
On 8 August, the Abortion Legislation Bill passed its first reading by 94–23 votes and was referred to select committee stage.[71][72] By October 2019, the Abortion Legislation Committee had received 25,000 submissions from various legal and medical experts, religious groups, national organisations and ordinary people sharing personal experiences. Due to the large volume of submissions, the Committee only heard 150 oral submissions out of the 2,890 who had opted to speak.[73][74]
In mid-February 2020, the Abortion Legislation Committee recommended safeguards to address sex selection, late-term abortions, eliminate some barriers for women seeking abortions, and require a health professional approving abortion after 20 weeks to consult with another health professional including nurses and medical practitioners.[75][76][77] In addition, Loheni published a minority report criticising the bill for what she regarded as a lack of safeguards on foetal abnormalities and late-term abortions. ACT New Zealand leader David Seymour supported the Select Committee's recommendations but argued that safe zones infringed on freedom of expression.[75]
While the New Zealand Medical Association welcomes these changes, Catholic bishops said that the legislation lacked safeguards for unborn babies with fetal disabilities.[78][79]
On 3 March 2020, the Bill passed its second reading by a narrower margin of 81–39 votes and was referred to a committee of the whole house.[80] On 10 March, a Committee of the Whole House considered and rejected several amendments that included reducing penalties for safe zones, eliminating statutory tests for abortion up to birth, preventing gender-selective abortions, and requiring medical intervention of unintended live births. However, the committee passed two amendments including one by Labour MP Ruth Dyson dealing with conscientious objection and one by ACT Party MP David Seymour eliminating safe zones around abortion clinics.[81]
On 18 March, the Abortion Legislation Bill passed its third and final reading by a margin of 68 to 51.[82][83] The bill's passage preceded a debate that same day where parliamentarians voted by 100–19 votes against holding a public referendum on abortion.[84][85]
Safe access zone legislation
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Main article: Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Act 2022 |
On 10 March 2021, a private members bill, the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill was introduced into the New Zealand Parliament. Its purpose is to create safe areas around abortion facilities, on a case-by-case basis, "to protect the safety and well-being, and respect the privacy and dignity, of women accessing abortion facilities and practitioners providing and assisting with abortion services". It passed its first parliamentary reading (100–15), although it has to pass two more parliamentary readings, as well as a parliamentary select committee to assess submissions for and against its passage.[86][87]
On 16 March 2022, the Safe Areas Amendment Act passed into law by a margin of 108 to 12 votes. It received royal assent on 18 March. The Bill creates safe spaces of no more than 150 metres around abortion providers. It also bans obstructing, filming in an intimidating manner, dissuading or protesting against those trying to access abortion services in those zones.[88]
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