The Lady Garden

Tea and Strumpets

Judicial sense on abortion

Cross posted

Just under three years ago, a judge in New Zealand agreed with Right to Life New Zealand that many abortions in New Zealand might not be lawful. Right to Life NZ had argued that:

the Abortion Supervisory Committee had failed to properly interpret the Contraception Sterilisation and Abortion Act, so “full regard is given to the rights of unborn children”.

Under New Zealand law, two consultants must authorise any abortion, and they must do so on grounds specified in the Crimes Act 1961. That’s right. Abortion is a crime in New Zealand, unless you meet certain criteria. One of those grounds is concern for the mental health of the pregnant woman, and as a matter of practice, that’s the box that’s usually ticked in order to enable women to access abortion. It’s an ugly compromise, and not even one that works very well. But three years ago, thanks to Right to Life NZ, and a judge in the High Court, even that compromise was under threat. We all thought that it would be back to the barricades on abortion.


But today, the news has come through that the judgement in the High court has been overturned on appeal: Appeal court strikes out abortion finding.

In a decision released today, a Court of Appeal bench of Justices Robert Chambers, Terence Arnold and Lyn Stevens, allowed the committee’s appeal and dismissed RTL’s cross-appeal.

They held that the law does not recognise or confer a right to life on the unborn child.

A majority – Justices Chambers and Stevens – held that Justice Miller erred in his findings as to the scope of the committee’s power to review certifying consultants’ decisions. They said the decisions of consultants involved medical judgment alone. Any complaints about the consultants could be made to and investigated by the Health and Disability Commissioner or police.

It was not open to the committee to form its own opinion about the lawfulness of decisions by the consultants, they said.

They quashed Justice Miller’s findings on the lawfulness of abortions.

The full text of the judgement can be downloaded here: Courts of New Zealand: Abortion Supervisory Committee v Right to Life New Zealand Inc.

In other words, Right to Life NZ’s claim that the Abortion Supervisory Committee isn’t doing its job properly is wrong.

I am not a lawyer, so I don’t know how strong the judgement against Right to Life NZ is. I couldn’t find anything in the judgement about whether it is possible for them to appeal this judgement to the Supreme Court. However, I’m sure they will be back, one way or another, trying to find a way to control women. At least this particular attack on women’s rights has been brought to a halt, for the time being.

5 responses to “Judicial sense on abortion

  1. Trouble June 2, 2011 at 2:38 pm

    Up to the Supreme Court. HTML fail.

  2. Nick R June 2, 2011 at 3:34 pm

    Either party can appeal to the Supreme Court. Technically, the Supreme Court has to grant leave to appeal, but having regard to the subject matter and the fact that the Court of Appeal split 2-1, there is little chance of it deciding not to hear an appeal. Of course, nobody has to appeal, but the chances are you are right – it probably aint over yet.

  3. Scar June 4, 2011 at 11:10 am

    One of those grounds is concern for the mental health of the pregnant woman
    Or pregnant man.

    • Deborah June 4, 2011 at 1:48 pm

      Yes, I know of one case where a trans-man has chosen to become pregnant so that he and his partner could have a baby, and presumably there must have been more, but they may not have been publicised. I imagine that an unwanted pregnancy for a trans-man could be very, very difficult. The law is written using female-gender pronouns – sections 183 and 187A of the Crimes Act are the relevant ones – so I wonder if that creates problems for a trans-man who is seeking an abortion (i.e. as in, legal barriers that cis-women don’t face).

      Good point, Scar. Thanks for raising it.

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