The Nathaniel Centre
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Law Commission Recommendations

In October 2018, the Law Commission reported back to the Minister of Justice, responding to a request for advice on what alternative legal approaches could be taken in the event the Government decided to propose a policy shift to treat abortion as a health issue.

The Law Commission has set out three alternative legal models that could be adopted if abortion is to be treated as a health issue: Under Model A there would be no statutory test that would need to be satisfied before an abortion could be performed – the decision whether to have an abortion would be made by a woman in consultation with her health practitioner; under Model B, a statutory test would need to be satisfied before any abortion could be performed – a health practitioner who intended to perform the abortion would have to reasonably believe the abortion was appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing; under Model C, for pregnancies of not more than 22 weeks gestation, it would be the same as Model A; and for pregnancies of more than 22 weeks gestation, same as Model B.

Some corollaries of the law change and other comments by the Commission:

  • Model A contemplates no specific abortion legislation and would therefore involve repealing the abortion provisions in the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977.

  • Models B and C would retain a specific statutory regime for abortion, although both would be significantly simpler than the current regime.

  • There would be two changes to the law that would be required under all of the three models: the current grounds for abortion in the Crimes Act would be repealed and the requirement for abortions to be authorised by two certifying consultants would be repealed.

  • The Commission has proposed either repealing the criminal offences for abortion or amending them so that they only apply to unqualified people who perform abortions.

  • The Commission considers that the current law and guidance surrounding informed consent for health procedures would be sufficient for the purposes of regulating abortions.

  • The Commission has suggested that counselling should not be mandatory for women seeking abortion, although it should remain available to women who want it.

  • While not suggesting removing the current conscientious objection rights of health practitioners, the Commission suggested that the Government consider changing the law to ensure that conscientious objection does not unduly delay women’s access to abortion services.

  • The Commission recommends that Health Practitioners with an objection be required to actively refer a woman seeking an abortion to someone who can provide the service. (This represents a significant departure from current legal approach to allow doctors to exercise their freedom of conscience.)

  • The Commission acknowledges a concern that if abortion becomes more easily accessible, it might be used for reasons related to the sex of the fetus or fetal impairment, and that this may warrant further consideration.

  • The Crimes Act contains a provision that makes it an offence to kill an unborn child, an offence not aimed at abortion, but rather at the killing of children during birth or through assaults on pregnant women. The Commission suggested that as the wording of the offence is wide enough to cover abortions performed at later gestations, the Government may wish to consider amending the provision to ensure it is consistent with the Government’s preferred policy approach to abortion.

The Law Commission Report raises a number of serious concerns that include the following:

In the submission to the Law Commission made by the NZCBC and The Nathaniel Centre, we noted that the current law, as set out in the Contraception, Sterilisation, and Abortion (CS&A) Act 1977 and the Crimes Act 1961, upholds a ‘tension’ between the needs and desires of the woman and the rights of the foetus/unborn child and seeks to balance both. The different Models, all of which start with the premise that abortion is a health procedure, uphold this tension to different degrees, with Model A arguably removing the tension in all cases and Model C removing the tension for all abortions performed before 22 weeks, that is, more than 99% of all abortions (ASC Report 2017).

In the health approach being presented, there is nothing acknowledging that there are at least two human lives involved in every abortion. As noted in our submission, most women understand that an abortion, whatever the reason they are contemplating it, has significant moral implications. Creating an altered legal regime that frames abortion as being solely about the well-being of the mother potentially undermines a women’s sense that abortion is a serious moral issue and, consequently, their moral agency.

Because all three of the proposed models frame abortion as a matter solely between a woman and her doctor, there is nothing to prevent the ‘inappropriate’ use of abortion for sex-selection or for reasons of impairment. The Law Commission suggests this ‘may warrant further consideration by the Government’, a view with which we concur.