The Bill liberalises late-term abortion
The Bill removes the current legal restrictions that only allow late-term abortion (after 20 weeks) to save the woman’s life or prevent serious permanent harm to her physical or mental health. It replaces this with a looser and more arbitrary criterion which simply requires one abortionist to “reasonably believe” the abortion is appropriate after “having regard to” the woman’s physical and mental health, and well-being.
The terms “physical health,” “mental health” and “well-being” are not defined by the Bill. On a natural reading these terms are broad and unrestrictive. Given the policy intent to make abortion more accessible, it is difficult to see many instances in which an abortion would reasonably be refused. (Consider how the more stringent wording of our current law has been interpreted to effectively allow abortion on demand).
There is no cut off limit for how far into a pregnancy an abortion can be performed, meaning that an abortion could legally be obtained up until the point that a child has been fully born, with approval of one Health Practitioner, on very unrestrictive grounds.
In reply to the Bill’s advocates, who claim that late term abortions do not, and will not, happen:
- There is no evidence that abortions up until birth do not currently happen. The statistics show that between 2007 and 2016 60 abortions occurred after 32 weeks’ gestation, the precise gestation has not been recorded.
- Good law-making requires our law to ensure that the unthinkable cannot and will not happen. There is nothing in this Bill that would make it illegal for an abortion to occur up to and during birth. If we do not want this to happen, then restrictions must be placed in the Bill to ensure that it cannot happen.
- The argument that abortions up until birth don’t happen yet is somewhat irrelevant given that the purpose of the Bill is to liberalise and change the law to make abortions (including late term abortions) more readily available.
The Bill has no safeguards to prevent sex-selective abortions
Prior to 20 weeks a woman will be able to have an abortion for any reason whatsoever, and, as noted above, after 20 weeks the criteria is broad and unrestrictive. A woman will be able to freely terminate her pregnancy on the basis of the child’s sex.
The Bill’s advocates have willingly chosen not to place any restriction within the Bill despite the fact that the Law Commission highlighted that this will be a very real possibility on page 179 of their October 2018 ‘Alternative approaches to abortion law’ Ministerial Briefing Paper.
The Bill allows under 16’s to access abortion on-demand without any safeguards
The Bill has removed all existing legal safeguards prior to 20 weeks, including for a pregnant young person under 16 years of age, who could access an abortion on demand if this Bill becomes law.
This is completely inconsistent with its stated aim to bring abortion into line with other health law. In all other health procedures, a Health Practitioner is required to assess whether a patient has the competence to provide informed consent to a procedure. The younger the person, the more likely that decisions about their health will need to be made by their guardian. Yet, in the case of abortion, a young person is able to consent to their own abortion regardless of whether they have the necessary competence.
This Bill will leave a pregnant young person to make the life-changing decision to have an abortion without any meaningful support or oversight.
The Bill has no safeguards to ensure women aren’t being coerced into abortions
Coercion of various different types is a major and very concerning factor in abortion decision-making. Despite this, the Bill contains no safeguards to protect women from being coerced into abortions. Advocates of the Bill respond to this claim by arguing that they “trust women to make the right decisions for themselves”. This denies the real-world complexity of crisis pregnancies, including factors such as emotional distress, social pressure, women in abusive situations, and so on.
The Bill has no cooling off period and pre-abortion counselling is not a requirement
There is no stand-down period to ensure that a woman has had the opportunity to carefully consider her options prior to proceeding with an abortion; this is particularly important given that the Bill has done away with a requirement to have two Certifying Consultants consider each case. This means that there would be nothing to prevent abortions from being carried out as a knee-jerk reaction before a woman or young girl has had the chance to meaningfully consider the decision.
There is also no requirement under the Bill for a woman to undertake counselling before having an abortion. Combined with the fact that abortion up to 20 weeks would be on-demand, without any cooling off period, women will be left to make this significant decision without ensuring that they have had the time to process their decision so that they have a full understanding about what the abortion involves, the foetal development of their unborn child, the risks of abortion, and the alternative options and support available to them.
The Bill has no safeguards to prevent abortions on the grounds of disability
Disability selective abortions continue to be a point of major contention for disability rights advocates. Prior to the 2017 election this became a public issue, and was even specifically addressed by Jacinda Ardern. Despite that fact, this Bill contains no safeguards to prevent abortions based solely on disability grounds at any stage of pregnancy.
The Bill does not require that abortions be provided by a doctor
There is no requirement in the Bill that the Qualified Health Practitioner who provides abortion services, at any point in a woman’s pregnancy, is a doctor. In fact, the Bill specifically uses the term “Health Practitioner” rather than “Medical Practitioner” thereby broadening the category of person empowered to certify and carry out abortions beyond just doctors.
At this stage it is unclear who will be legally enabled to perform abortions given that the Bill has left it up to the discretion of the Ministry of Health. We expect that midwives, nurses and potentially certain other Health Practitioners will be authorised to provide abortion pills and given that abortion premises will not be required to be licensed, abortion services will be much more readily available than they already are. .
The Bill violates the right to freedom of conscience of medical professionals
The Bill violates the right to freedom of conscience of medical professionals by forcing them to be involved in the abortion referral process. Although a medical professional is not required to perform an abortion, they are required to provide a woman with the list of providers. If a woman no longer needs a referral from a medical professional, why should medical professionals be punished for declining to be involved in the abortion process? It appears that these violations of a Doctor’s rights are excessive and vindictively targeted at health professionals who want to exercise freedom of choice when it comes to abortion.
Further, the fact that the Bill allows an employer to refuse to hire someone, or to terminate their employment, on the grounds of their conscientious objection “unreasonably disrupting their activities” is a significant impingement on that person’s rights, and a total reversal of the employment rights health professionals with conscientious objections currently have.
The Bill provides for ‘Safe Areas’ where freedom of expression would be curtailed
The Bill allows for the creation of so-called ‘Safe Areas’, which are public spaces of up to 150m from an abortion service provider’s premises where people could be arrested and charged by the police for simply expressing a view that others interpret as ‘distressing’.
This is a significant and concerning restriction on freedom of speech. Given the fraught emotional complexity involved in an abortion, it is hard to imagine that provision of any information (such as silently holding up a sign offering help) could not reasonably be inferred to be emotionally distressing.