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Abortion legislation introduced

08 August 2019 - By Tracey Cormack

The Abortion Legislation Bill was introduced to Parliament on 10 August by Justice Minister Andrew Little. The bill is an omnibus bill introduced under Standing Order 263(a).

Currently in New Zealand, an abortion is unlawful unless certain legal grounds are met, and performing an unlawful abortion is a criminal offence. Two specially appointed doctors, called certifying consultants, must be satisfied that one of the grounds applies before an abortion can occur. It is also an offence, punishable by fine, for a woman to unlawfully procure her own miscarriage or obtain an unlawful abortion.

On 27 February 2018 Andrew Little, asked the Law Commission to provide to him a briefing paper advising what alternative approaches could be taken in New Zealand’s legal framework to align with a health approach to abortion.

The report: Alternative approaches to abortion law

The report provided three options on what a health approach to abortion could look like.

Model A: There would be no statutory test that must be satisfied before an abortion could be performed and the decision whether to have an abortion would be made by a woman in consultation with her health practitioner.

Model B: A statutory test would need to be satisfied before an abortion could be performed, but the test would be in health legislation rather than the Crimes Act. The statutory test would require that the health practitioner who intends to perform the abortion would need to reasonably believe the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing.

Model C: For pregnancies of not more than 22 weeks gestation—same as Model A. There would be no statutory test that must be satisfied before an abortion could be performed and the decision whether to have an abortion would be made by a woman in consultation with her health practitioner.

For pregnancies of more than 22 weeks gestation—same as Model B. The same statutory test as in Model B would need to be satisfied before an abortion could be performed. The test would be in health legislation rather than the Crimes Act. The health practitioner who intends to perform the abortion would need to reasonably believe the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing.

The bill

The bill amends the law to decriminalise abortion, better align the regulation of abortion with other health services and modernise the legal framework for abortion currently set out in the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977.

Changes to Contraception, Sterilisation and Abortion Act 1977

The bill repeals the current legal grounds for authorising an abortion and the requirement for certifying consultants.

Clause 7 replaces sections 10 to 46 with new sections 10 to 21. For a woman who is not more than 20 weeks pregnant, there would be no statutory test, however the practitioner would still be required to ensure that the woman makes an informed choice and gives informed consent.

For a woman who is more than 20 weeks pregnant, the statutory test would require the health practitioner to reasonably believe that abortion is appropriate with regard to the pregnant woman’s physical and mental health and well-being. The practitioner would also be required to ensure that the woman makes an informed choice and gives informed consent.

Clause 7 also inserts a provision to ensure that women can self-refer to an abortion service provider (new section 14).

Health practitioners must advise women of the availability of counselling services (new section 13).

Currently practitioners who object to providing services on the grounds of conscience are not required to refer the pregnant woman to another practitioner. The bill amends this and clarifies that practitioners who object must disclose this at the earliest opportunity and must tell the woman that how she can access the contact details of a provider of the service requested (new section 19(2)(a) and (b)).

The bill disestablishes the Abortion Supervisory Committee. The Ministry of Health will administer the CSA Act as part of its existing role within the health sector (Schedule 1, new schedule inserted into CSA Act)

New section 17 provides a regulation-making power to set up safe areas around specific abortion facilities, on a case-by-case basis. This is to protect the safety and well-being, privacy and dignity of women and practitioners accessing abortion facilities.

Decriminalising abortion

Sections 182A, 183, 186, 187 to 187A of the Crimes Act 1961 are replaced with new section 183 (clause 12). The bill repeals the offence relating to a woman who attempts to procure her own abortion, repeals the offences relating  to abortions performed by health practitioners. Health practitioners who do not comply with relevant standards or processes for performing an abortion may be sanctioned under the complaints and discipline regime for health practitioners, under the  Health Practitioners Competence Assurance Act 2003.

The bill also repeals the offences relating to persons who perform an abortion elsewhere than in an institution licensed by the Abortion Supervisory Committee, or without authorisation from 2 certifying consultants.

Clause 12 inserts section 183 and retains important criminal offences, with necessary language changes to update and align the terminology with modern drafting. It retains the offences for unqualified people (ie, not health practitioners) who attempt to procure an abortion on a pregnant woman and for unqualified people (ie, not health practitioners) supplying the means for procuring an abortion.

There is an offence of killing an unborn child under section 182 of the Crimes Act.

The Act will come into force on the day after it receives the Royal assent.

Last updated on the 16th September 2019