Judicial Review Of Abortion Law Examines Gap Between Legislation And Practice

Right to Life New Zealand Inc v The Abortion Supervisory Committee (High Court, Wellington, 9 June 2008, Miller J, CIV-2005-485-000999)

In a recent decision, the High Court of New Zealand reviewed the state of abortion law and the rights of unborn in New Zealand, an area which the Court aptly described as "socially divisive". Right to Life New Zealand Inc applied for judicial review of the actions of the Abortion Supervisory Committee claiming that the Committee was failing to ensure that the statutory test for lawful abortions was being properly and consistently applied.

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Abortion Law in New Zealand

Women in New Zealand do not have a constitutional or statutory right to abortion on request.   An abortion will be lawful only if it carried out in accordance with the Contraception, Sterilisation and Abortion Act 1977 (CSA Act).

Killing an unborn child is a crime in New Zealand (s182 Crimes Act 1961). Procuring a miscarriage or supplying the means of procuring an abortion are also crimes if done "unlawfully" (ss182 and 186).  "Unlawfully" is defined in s187A of the Crimes Act which stipulates that an abortion will not be unlawful if performed earlier than 20 weeks into the pregnancy and in the belief that:

1. the continuance of the pregnancy would result in serious danger to the physical or mental health to the woman; or
2. there is a substantial risk that the child would be seriously handicapped; or
3. the pregnancy is a result of incestuous sexual relations; or
4. the woman or girl is severely subnormal.

An abortion will be lawful after 20 weeks gestation only if the person performing it believes that it is necessary to save the life of the woman or prevent serious permanent injury to her physical or mental health. 

A medical practitioner is able to carry out abortions lawfully if he or she acts under a certificate issued by two consultants licensed under the CSA Act.  The certifying consultants may issue a certificate in the prescribed form if they form an opinion in the particular case that one of the grounds in s187A of the Crimes Act applies. The decision to authorise an abortion was described in an earlier Court of Appeal decision as "a medical assessment pure and simple".

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Abortion in Practice

The CSA Act establishes the Abortion Supervisory Committee. The express functions and powers of the Committee are:

1. to keep under review all the provisions of the abortion law, and the operation of those provisions in practice;
2. to receive, consider, grant and refuse applications for licenses;
3. to take all reasonable and practicable steps to ensure that sufficient and adequate facilities are available throughout New Zealand for women seeking counseling in relation to abortion;
4. to obtain, monitor, analyse, and disseminate information relating to the performance of abortions in New Zealand;
5. to keep under review the procedure prescribed by the Act where it is to be determined in any case whether an abortion would be justified;
6. to take all reasonable and practicable steps to ensure that the administration of the abortion law is consistent throughout New Zealand; and
7. to report annually to Parliament on the operation of the abortion law.

The Committee noted in its 2000 annual report that the CSA Act is "not being followed as the law intended" and is "not being consistently applied throughout the country". However it had concluded, as a result of an earlier Court of Appeal decision relating to the non-reviewability of individual clinical judgments by certifying consultants, that it had no choice but to accept whatever interpretation of the Act was being applied by individual consultants in practice, irrespective of concerns that the law was not being correctly or consistently applied.

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The Application for Review

The applicant sought judicial review on the grounds that the Committee had failed to:

1. interpret and apply the CSA Act according to its tenor, by failing to take into account the rights of the unborn child and to oversee the manner in which the certifying consultants do their work and to take steps toensure the consistent administration of abortion law in New Zealand;
2. review the procedure for the conduct of abortions;
3. inquire into the circumstances in which consultants are authorising the performance of abortions on the mental health ground;
4. seek proper information on mental health grounds from certifying consultants; and
5. perform its statutory duty or exercise its statutory powers to take all reasonable and practicable steps to ensure that sufficient and adequate counselling facilities are available.

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Decision

The Court began its analysis of the application by considering whether the unborn have a legal right to life.  It held that s8 of the New Zealand Bill of Rights Act 1990 (the right to life) does not apply to the unborn, and that abortion law does not establish a legal right to life for an unborn child. However, by enacting the CSA Act, which limits the circumstances in which abortions may be performed, the legislature recognised that the unborn have "a claim on the conscience of the community".

The Court considered that there was "reason to doubt the lawfulness of many abortions authorised by certifying consultants" with the result that the Committee had been put on inquiry.  The Court held that the Committee had misinterpreted its powers and functions under the abortion statutes. The Committee should use its powers to require consultants to keep proper records and to report on cases that they have certified so that it could form its own hindsight opinion on the lawfulness of consultants' decisions for the purposes of performing its statutory functions of reviewing the abortion legislation, reporting to Parliament on the operation of the law and ensuring its consistent administration.

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Comment

The High Court was confronted, in this judicial review application, with an apparent contrast between the provisions of the statute, which permit abortions only on limited medical grounds, and the manner of its routine application in practice. It decided that adopting a “hands off” and deferential approach to individual certification decisions amounted to a failure by the Abortion Supervisory Committee to discharge its statutory duties. The Court drew a distinction between an individual authorisation (which was not reviewable by the Committee) and the overall quality of decision making by licensed consultants which the Committee has the role of supervising.

Although the applicant failed to persuade the Court to find and uphold a legal right to life of the unborn, it appears that it will succeed in forcing the Committee to confront a situation, which, while arguably conveniently pragmatic, was unsatisfactory from a rule of law perspective. It can be expected that the decision will lead to the Committee taking a more active role in the administration of the abortion statute. If this increased scrutiny leads to a reduction in authorisations, the eventual outcome, as the Court noted, may be mounting political pressure to amend the statute to provide expressly for abortion on request, reflecting what appears to have been de facto practice in New Zealand for many years. In view of its inherently controversial nature, making abortion law reform a current political issue is unlikely to be a welcome development from the perspective of many members of New Zealand's elected legislature.

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