The Abortion Legislation Committee has reported on the Abortion Legislation Bill and recommends that it be passed with amendments. Each member of the committee approached the consideration of the bill with their own views and did not represent any party position.
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.
The committee considered 25,776 submissions and heard oral evidence from 139 submitters. Approximately 91% of written submitters opposed the bill and 7% supported it.
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.
Barriers caused by the current process
Lengthy delays: A 2010 study found that an average wait is 25 days between the first appointment with the referring doctor and the procedure. In some cases, this requires the woman to have a surgical abortion as they would have passed the threshold for a less invasive medical abortion.
Access to services throughout New Zealand is inequitable. Some DHB’s do not provide abortion services and in regions that do, some women have to travel long distances to areas that are difficult to reach.
Proposed amendments
Abortions for sex selection
The committee opposes the performance of abortions solely on the basis of sex selection, but most members do not consider that including a restriction in legislation is necessary, on the grounds that this could result in ethnic profiling, non-disclosure of that reason or people seeking unlawful abortions.
A provision should be entered to emphasise that Parliament opposes the performance on abortions solely on the basis of a preference for a particular sex.
Availability of services
A proposed new section (clause 7 – new section 20B) should be inserted to require the Director-General to undertake periodic reviews of whether access to certain services is timely and equitable.
Conscientious objection
Most members recommended amending new section 19(2) of make the conscientious objection provisions consistent across contraception, sterilization, and abortion services so that the objector would have to tell the person how to access the specific service they wanted.
Clause 7 – new section 19(3) should be amended to make it clear that a health practitioner has a professional and legal duty to provide medical assistance in a medical emergency and that a conscientious objection does not override this duty.
All members agreed that a person should not be charged for a consultation, where only a conscientious objection is disclosed.
Safe areas
Most members support safe areas being established upon application, rather than being automatically applied to all abortion facilities.
The majority recommend amending the definition of prohibited behaviour by replacing section 15(3) in clause 7 to define a protected person. They would have to be in a safe area to access, provide, or assist with the provision of abortion services or advice or information about abortion services.
Collecting and publishing information about abortion services
Committee members recommend inserting transitional provisions as clause 7, new section 20E to require abortion service providers to continue collecting data related to abortions services which would be provided to the Ministry of Health.
The members recommend that the transitional provisions should expire 18 months from the date the bill comes into force. This would give the Ministry of Health to make operational arrangements, or for regulations to be made and would ensure continuity between data collected by the Abortion Supervisory Committee and the ministry.
The Abortion Supervisory Committee collects data which must be completed by operating doctors when an abortion is performed. The data is facility name; date of birth; Health Domicile Code; residency status; ethnicity; number of previous live births and previous induced abortions; estimated gestation; grounds for performing the abortion; abortion procedure; contraception provided at the time of the procedure; complications; and method of contraception at conception.
The members consider that additional data should be collected that would help determine why women seek to end pregnancies. This could include information about the provision and uptake of counselling services, information on family violence and screening, information on the time taken to obtain an abortion, the use of interpreters and general information about health practitioners, such as their location and the gestational limits they are willing to perform up to.
List of abortion service providers
Having a list of available abortion services is important given that a person could self-refer if the bill is passed. Most members agree that the list should be made publicly available, however noting that publishing a list could put practitioner’s safety at risk. Most members therefore recommend inserting new section 20C (3) so that a list would be made available on request.
Informed consent
Some submitters said that they had not been given fully informed consent and all members consider that it is imperative that women are appropriately and comprehensively informed when deciding whether or not to have an abortion. This includes ensuring that women are provided with all options and choices, such as adoption.
Counselling
The members agree that counselling should be available, but not mandatory. The members recommend deleting section 12 in clause 7, which requires the Minister of Health to ensure the availability of counselling services for abortions and moving this provision to new section 20A.
Abortions after 20 weeks gestation
Performing abortions from around 19 weeks gestation involves more complex procedures than those performed earlier. Clause 7, new section 11, sets out the statutory test for abortion services for a woman who is more than 20 weeks pregnant. A number of submitters opposed the statutory test considering that is vague and open to interpretation by health practitioners and will result in abortions being performed after 20 weeks without an appropriate framework for medical and clinical oversight.
Other submitters that support the bill believe that there should be no statutory test. They consider that women and their doctors are best placed to make decision at later gestation.
All but one member consider that the distinction between Model A (no statutory test) and model C needs to be strengthened.
The committee understands that doctors would always consult colleagues before performing abortions after 20 weeks gestation and the bill would not change this, so the Committee considers that the consultation and any other steps the doctor follows, should be confirmed by the legislation (amendment to section 11(1) and (2)).
The committee also proposes amending new section 11(3) to make it clear that the requirements of section 11(2) would not in a medical emergency.
The Green Party representative recommends amending the bill to implement Model A of the three models by removing the statutory test. Model A was preferred by the majority of the health sector.
Definition of “woman”
The bill defines a woman as “a person of any age who is capable of becoming pregnant”. Many members believe that this is offensive because women who are post-menopausal or infertile would not be considered women. The members recommend deleting clause 5 to delete the definition of “woman”.
Privacy of information on medical records
The members suggest that, for abortion services, the default process for giving consent to access to records should be an opt-in one, so that a person would have to give consent to the record of their abortion being accessible to their GP.
Fetal Pain
Some members expressed concern about fetal pain during an abortion. There appears to be no authoritative research that either proves or disproves the perception of fetal pain during the third trimester of pregnancy.
Sterilisation
The Ministry of Health said that the data it currently collects about sterilisation is not as useful as it could be, and it needs to collect additional data about non-consensual sterilisations. The committee agrees this is an important issue and urges Parliament to act to ensure this data is collected.
Agnes Loheni minority view
National Party member Agnes Loheni opposes the select committee recommending passage of the bill, concluding that the process that led to the Abortion legislation bypassed proper investigation into whether current abortion legislation should be altered and if so how. Ms Loheni believes the lack of due process has resulted in a bill with significant flaws.
She was concerned particularly regarding the criteria for abortions post 20 week gestation, the impact of the broad criteria on allowing abortions for fetal abnormality, changes to conscientious objection and employment discrimination practices, the introduction of safe zones, and the lack of safeguards against abortion on the basis of sex selection.