I have read the complete text of the Court of Appeal’s ruling.
Please note that this commentary has been written by a layman, not a lawyer. However, the text has been checked by a very experienced courtroom lawyer and his comment is in the postscript.
In 2007, Christchurch-based Right to Life took a case to the High Court alleging that the Abortion Supervisory Committee was failing to review whether certifying consultants were lawfully granting women abortions.
Justice Florrie Miller released his decision in 2007, observing that there were reasons to doubt the lawfulness of many abortions. The Abortion Supervisory Committee subsequently launched an appeal.
Justice Miller also rejected Right to Life’s arguments that an unborn child had a legal right to life. Right to Life appealed against that ruling.
Court of Appeal decision
The Court upheld Justice Miller’s ruling that the law does not recognise an unborn child’s right to Life.
By a 2-1 majority the Court found that the ASC did not have the power to review certifying consultants’ decisions approving abortions, as they were based on medical judgments alone.
They awarded costs of at least $40,000 to the Abortion Supervisory Committee, so Right to Life has to pay up.
Why Justice Miller (and the Court of Appeal) ruled that the unborn child has no right to life until it is born.
In terms of common sense and the science of human embryology, this ruling appears ridiculous. Professor William Liley, who co-founded the anti-abortion movement in NZ, was a brilliant obstetrician and gynaecologist, internationally renowned as the “father of foetology”, the pioneering science of unborn life in the womb.
He insisted that from the scientific viewpoint, a unique human person exists from conception, and the subsequent revelations about human DNA and the genetic code, reinforce that claim.
However, as we shall see below, the law sees the issue differently.
In paragraph 53, the Court of Appeal judges quoted from Wall v Livingston (Justice Speight, Auckland High Court, 19th January, 1982):
“It is important not to lose sight of what must have been a deliberate Parliamentary decision: the avoidance of any attempt to spell out what were to be regarded as the legal rights of an unborn child: with the consequential absence of any statutory means by which rights (whatever their nature) could be enforced.”
Then in paragraph 54, the judges state:
“We are satisfied that there is no basis either from the Long Title to the CS&A Act, or the abortion law to derive generally an express right to life in the unborn child. We reject this ground of appeal in Right to Life’s cross appeal for the same reasons as found favour with (Justice) Miller.”
The Court quotes from Miller again:
“In general, New Zealand adheres to the common law ‘born alive’ rule, which does not treat the unborn child as a person. Wrongs may be done to the unborn child before birth, but it has no remedy for them until born alive. The rule is recognised by section 159 of the Crimes Act, which is not part of the abortion law as defined, but must be read in this context with section 182 which is.”
In the next paragraph, we get to the heart of the matter. The Court quotes from Justice Miller’s reasoning:
“Counsel accepted that the modern status of the born alive rule in New Zealand law was accurately summarised by McGrath J in Harrild v Director of Proceedings. McGrath J reviewed the authorities at common law, holding that they established a settled position that at common law a fetus has no legal rights prior to birth.
He noted that…’legal complexities and difficult moral judgments would arise if the Courts were to alter the common law to treat the fetus as a legal person.’
“The rule according legal rights only at birth is founded on CONVENIENCE (my emphasis) rather than medical or moral principle.”
Justice Miller continues in the next paragraph to elaborate:
“For reasons already given, I prefer the view that the abortion law creates no legal rights in the unborn child, nor any mechanism by which rights found elsewhere may be enforced on its behalf.
The abortion law exists to regulate and authorise abortions. Under it not only the life, but also the health of the mother take precedence over the life of the unborn child.
That is a compelling indication that the legal status of an unborn child differs profoundly from that of a born person. A legal right to life would be incongruous in such a law, for it would treat the unborn child as a separate legal person, possessing a status fundamentally incompatible with induced abortion.
Far from modifying the born alive rule, the abortion law rests on it.”
The rule is founded on “convenience rather than medical or moral principle”.
According to the Concise English Dictionary “convenience” is defined as “ease, comfort, a suitable opportunity”. The context of the legal reasoning appears to suggest a “nod, nod, wink, wink” approach to this matter of life or death for the unborn child.
If the law was to admit to medical reality, or moral principle, the killing would be medical homicide, thus making abortion an exception only to save a mother’s life.
Thanks to Justice Miller, we have his word that the law is based on a fiction (not a person until born), a “convenience” to enable thousands of abortions to be performed easily and comfortably every year.
To afford the unborn child any legal recognition, would throw a spanner in the works, endangering the smooth functioning of the current abortion law.
Such legal recognition is properly the function of Parliament. As the Court observes in (53): “It is important not to lose sight of what must have been a deliberate Parliamentary decision: the avoidance of any attempt to spell out what were to be regarded as the legal rights in an unborn child…”
The Contraception, Sterilisation and Abortion Act was passed by Parliament 33 years ago. In Wall v Livingston, the Court suggests that the “avoidance” was a deliberate strategy by MPs to facilitate abortion.
It may have been, 33 years is a long time ago. On the other hand, it could have been an oversight that needs revisiting.
The lawyer who checked the text commented that the reasons cited by Justice Miller based on McGrath J’s summary: “legal complexities and difficult moral judgments would arise if the Courts were to alter the common law to treat the fetus as a legal person”, are the same reasons used by opponents of the abolition of slavery, universal suffrage for women, and voting rights for all British citizens rather than those who possessed property.