Read MP Agnes Loheni’s Minority Report on Labour’s Abortion Bill

ABORTION LEGISLATION BILL
Select Committee Report: Minority View

INTRODUCTION

National member Agnes Loheni opposes the Select Committee recommending passage of the government’s Abortion Legislation Bill.

Process

Some 25,718 submissions were received by the Abortion Legislation Select Committee. Of these approximately 91.6 percent opposed the Bill. Approximately 2,800 submitters requested to make an oral submission of which the committee chose to hear from approximately 160. I disagreed with the committee’s decision and criteria used to deliberately and intentionally restrict the number of oral submissions on such an important matter, particularly one which comes with heartfelt and well-considered opinions. This includes the voices of abortion survivors, those conceived in rape, and other important stories directly relevant to the matter.

The Committee has been asked by the government to consider this bill in the absence of sufficiently addressing important questions. This includes whether there is a need for changes to New Zealand’s current abortion legislation so that it aligns with a health approach, and if so, why?

The Ministerial Briefing Paper from the Law Commission – which heavily influenced the drafting of the Abortion Legislation Bill – “provid[ed] advice on alternative legal frameworks that could be adopted to align with a health approach to abortion.” The Commission did not (and were not instructed to) determine whether there was a legitimate need to alter current abortion legislation. Instead, the Government appears to have pre-determined its outcome, notably that the legislation should be changed so that abortion is treated like any other health service. A more appropriate process in responding to requests to alter abortion legislation in New Zealand would be to conduct a proper investigation, with the process held by a Royal Commission of Inquiry.

In the Minister of Justice’s speech at the First Reading of this Bill, it was suggested that legislative change is necessary because women are criminalised by our current abortion laws. No woman has ever been charged with having an unlawful abortion. This sentiment misrepresents the reality and intention of our current abortion legislation under the Crimes Act 1961. To protect women from unlawful abortions, the Crimes Act 1961 criminalises people who perform abortions in contravention of the Act. Under s.44 of the Contraception, Sterilisation, and Abortion Act 1977 it is an offence for a woman to have an unlawful abortion, punishable by a maximum penalty of a $200 fine.

Again, it must be strongly noted, that no woman has ever been charged with having an unlawful abortion in New Zealand. To ensure no woman is ever criminalised s.44 would need to be repealed. The committee report, however, does not address this misrepresentation of the Crimes Act 1961.

SPECIFIC AND SUBSTANTIVE MATTERS

Removal of certain criminal offences from Crimes Act

This Bill, if enacted, will severely breach and irreparably damage the “sanctity of life” principle which has been a cornerstone of New Zealand’s common law. Our current abortion law seeks to balance the rights and autonomy of the expectant mother against the interests of unborn human life. As a result, the Crimes Act 1961 includes offences for killing an unborn child because the prohibited conduct involves the intentional taking of human life. In contrast, the Abortion Legislation Bill disproportionately shifts the balance to favour the rights and autonomy of the mother – in fact, it removes the human rights of the unborn child completely.

Post 20 week abortions

The criteria outlined in the Bill (“physical health”, “mental health” and “well-being”) are undefined and as a result are incredibly broad. Put simply, under the current proposed wording it would be possible for an abortion of a baby – from 20 weeks to moments before birth – to be terminated almost at whim as the wording is so undefined to be disingenuous.

Moreover, the legislation proposes that the current requirement that two health practitioners assess the suitability of an abortion for a woman will now be reduced to one health practitioner and only apply for abortions post 20 weeks. This introduces much broader criteria to determine which pregnancies can be terminated post 20 weeks gestation than is outlined in the current legislation.

Concerns raised

At First Reading of this Bill, Justice Minister Hon. Andrew Little said he did not intend to liberalise abortion right up to birth. In fact, there appears to be little appetite amongst the New Zealand public for a post 20 week ‘on-demand’ equivalent abortion regime. Despite this, a number of submitters expressed concern at the lack of an upper limit for abortions. They were concerned that abortions can, with one doctor’s agreement, be performed right up to birth. One submitter explained that under this legislation “Abortions will be lawfully permitted, and easily accessed, until full-term in the proposed bill. This is the only logical interpretation of the Bill.” And yet, there has been little discussion to sufficiently explain the need for altering the current statutory test for post-20 week abortions.

Submitters have expressed concern over the vague terminology and noted that the terms “physical health,” “mental health,” and (most crucially) “wellbeing” are not defined in the Bill. As a result, the terms are incredibly broad and open to individual interpretations that may have an adverse impact on both mother and definitively on the unborn child. Many submitters expressed concern that the ability to obtain abortions post 20 weeks gestation will become easier and the rate of such procedures will increase should the Bill be enacted.

Some submitters were concerned that there was no upper limit for abortions suggesting that there could be a cap on abortions at 30 or 35 weeks gestation. Some submitters claimed that abortions post 20 weeks were almost always because of abnormalities with the unborn child and therefore suggested that it would be logical to cap the limit at no more than 10 weeks post the 20 week scan when abnormalities would ordinarily be picked up.

Some submitters pointed out that scans at 20 weeks (and post 20 weeks) gestation were not always reliable and that sometimes the unborn child may be terminated as a consequence of incorrect information. Medical submitters told us that removing the requirement for two medical opinions would also remove a safeguard against that occurring.

Submissions from professional organisations recommended the need for stronger safeguards and limitations in abortions with later gestations. For example, one group recommended criteria for the statutory test could be staggered to include tighter regulations as the pregnancy progressed. Another organisation suggested an upper gestational limit to abortions, while others recommended having two health practitioners sign off on abortions for pregnancies post 20 weeks gestation.

Foetal abnormality

It can be a traumatic experience for the parents to discover the unborn child has foetal abnormalities, especially if the viability of the unborn child is seriously compromised. Currently the law enables a mother to abort their unborn child in these circumstances. This section addresses concerns that vague definitions of physical health and mental health can be grounds for terminating an unborn child that is otherwise completely viable and indeed may be able to live a full adult life.

Concerns raised

Submitters expressed concern that changes to the grounds for abortions, with the addition of undefined legislative terms, will lead to more abortions on the grounds of foetal abnormality.

The experience of comparable international jurisdictions provide evidence of termination of pregnancies with moderate to severe foetal abnormalities. For example, submitters brought to our attention the example of Denmark, where over 98 percent of babies diagnosed with Down Syndrome are aborted, while in Iceland no children have been born with Down Syndrome for the last 5 years. We were also told by submitters that in the United Kingdom there are increasing numbers of late term abortions for conditions such as such as cleft lip and palate or club foot. These are not outcomes to be celebrated and in fact, should be condemned as highly discriminatory.

Submitters, particularly disability advocates, expressed concern that freeing up abortion laws would likely lead to further stigmatisation and discrimination of New Zealanders with disabilities. Submitters told us that, “The absence of any but very vague criteria such as ‘physical health’ ‘mental health’ and ‘wellbeing’, together with the social stigma already alluded to, opens not simply the possibility, but the likelihood that disabled foetuses will be denied proper protection because of bad information, prejudice, and stigma. We have already seen how even tight criteria in the old law can be circumvented.” We were also told that Crown Law’s assessment of the Bill’s provisions and its likelihood of resulting in indirect disability discrimination “it concluded that because the Bill does not make express reference to disability, ‘the Bill is less likely than the present legislative regime to lead to indirect discrimination on the basis of disability.’ With respect, we disagree. Remaining silent on a discriminatory practice does not make it less likely to happen. In fact, quite the opposite. The Bill’s removal of current restrictions significantly widens the ability for a woman to have an abortion on the grounds of disability.”

Laws that explicitly allow abortion on the grounds of foetal impairment violate articles 4, 5, and 8 of the Convention on the Rights of Persons with Disabilities (CRPD). In fact, New Zealand’s Independent Monitoring System on the Convention on the Rights of Persons with Disabilities (CRPD) noted the Bill’s failure to protect against disability-selective antenatal selection. As one disability advocacy organisation told us, “Selective screening for Down Syndrome, especially as it is currently practiced, does not appear to be compatible with disability rights’ principles, and brings into question whether current practices uphold the intent of the UNCRPD. Screening practices that reduce birth prevalence can result in further marginalisation of that sector of the population.”

Conscientious objection and employment

Under current legislation a health practitioner is not obliged to provide abortion services if they have a conscientious objection. Nor is a health professional obligated to redirect a woman seeking an abortion to another abortion provider. Moreover, that professional cannot be discriminated against in any way by an employer for being a conscientious objector. These protections would be removed under the Abortion Legislation Bill.

Establishing what grounds constitute conscientious objection should not be subject to the whims of elected representatives and their public sector agents. Nor should a conscientious objector be compelled to engage in an activity, or recommend where such an activity can be engaged in, if they are personally compelled or driven for any reason not to. If, on matters of life and death, health practitioners are forced to act against their conscience or because the state decrees it, we reduce them to mere automatons and not moral agents. To force those health practitioners who have firm positions against participation is a direct attack on fundamental human rights.

Concerns raised

The proposed legislation states that if a conscientious objector would cause unreasonable disruption to activities an employer can:

  • Refuse to employ the applicant,
  • Afford the applicant or employee less favourable terms of employment,
  • Terminate the employment,
  • Subject the employee to any detriment, or
  • Retire the employee.

Worryingly “unreasonable disruption to activities” is not defined in the proposed legislation. A legal organisation told us that this phrase is “too subjective, and doesn’t require an employer to prove that the objection would disrupt their business or consider whether other staff could carry out the objector’s duties.” Another professional body, told us that “allowing employers to dismiss conscientious objectors on the grounds that their moral/ethical stance would ‘unreasonably disrupt the employer’s activities’, was vague, and in practice would negate the protections outlined in section 20(1) of the Bill.”

Most submitters who commented on this section were opposed to the provision. An organisational submission stated that “the person’s entire employment relationship can be adversely affected on the basis of a personal belief that they sincerely hold. Such an extensive limitation on fundamental rights requires far greater justification than this.” Some submitters were concerned that this section may cause conscientious objectors to be pressured or coerced into assisting or performing abortions against their conscience. They further comment that employees may be subject to coercion rather than risk having their employment terminated, and that more safeguards on employee harassment are needed.

As one submitter noted, this clause is in direct contrast to the End of Life Choice Act 2019 s. 5A which states:

An employer must not—

  • Deny to an employee any employment, accommodation, goods, service, right, title, privilege, or benefit merely because the employee objects on the grounds of conscience to providing any assistance referred to in subsection 1; or
  • Provide or grant to an employee any employment, accommodation, goods, service, right, title, privilege, or benefit conditional upon the employee providing or agree to provide any assistance referred to in subsection 1.

While s.20 was designed to balance the right to conscientious objection with the duty to provide health services, I find that the balance must sway in the favour of freedom of conscience and religion.

Safe zones

The right to engage in lawful protest is a mainstay of New Zealand’s democracy and a core part of freedom of expression. The legislation currently proposes the creation of safe zones where overt or even covert protest (which could include silent prayer) is illiberal and contrary to the importance of freedom of expression that has been well-recognised by the New Zealand Courts. The right to protest is often celebrated in New Zealand including by government and the media. That this life and death issue is singled out as an activity in which any protest is banned is both worrying and telling.

Concerns raised

In their Briefing Paper, the Law Commission do not support the large-scale proposal to make all abortion clinics subject to safe zones. Their concern is that a blanket introduction of safe zones would limit rights further than required to achieve the objective of the legislation, particularly given the importance of these civil rights in a democratic society. The Commission is clearly of the view that the proposed safe zones are an over-reach and “may not be rationally connected to this objective (creating safe zones), nor proportionate”. They note that “There are existing legal protections against intimidating behaviour around abortion facilities. Under the Summary Offences Act 1981, some forms of intimidating and anti-social behaviour are prohibited including: offensive behaviour or language (section 4(1)(a), (b), and (c)); intimidation (section 21(1)(d) and (e)); and obstructing a public way (and section 22). The Trespass Act 1980 also prohibits trespass after warning to leave (section 3)”.

At no point has an issue or example of the issue the legislation is being asked to address, ever been detailed. The only justification appeared to be a general concern that women should not be subject to prayer on their way to get an abortion. How often, or how obstructive, people seeking abortions have been exposed to examples of this nature was not defined. As one organisational submission explained, “The Summary Offences Act 1981 prohibits disorderly or offensive behaviour against public order, intimidation (which includes stopping, confronting, or accosting someone in a public place), and obstructing a public way. As a result, the safety and well-being of women and abortion providers are already protected from inappropriate protest actions. The implementation of safe areas is thus an unnecessary restriction on the rights of New Zealanders to freedom of expression.” Therefore, the introduction of safe zones is an unproportionate response, and is likely to have significant consequences on the future of New Zealand’s democracy.

Sex selection

While the Law Commission stated in their briefing paper that it “has not seen any evidence of sex-selective abortion in New Zealand”, they did note that “there is some, albeit limited, evidence to suggest that they occur in countries New Zealand often compares itself to.” Sex selective abortions are recognised as being difficult to measure, however, the proposed legislation will allow this to happen on a much greater scale.

Concerns raised

A few submitters raised concerns that changes to the current criteria for abortions would eliminate any barriers to sex selective abortions, allowing for discrimination on the basis of gender. As one organisation submitted, “In a system where abortions are lawful on social grounds, there is no protection against antenatal sex discrimination and amongst son-preference cultures residing in New Zealand, it is baby girls who will suffer the most discrimination.”

Another submitter suggested that sex selective abortions could also be the result of a desire for family balancing, as “sex selection affirms gender-stereotyping children, and some commentators have argued that it may increase the ‘risk that resulting children would be treated as vehicles of parental satisfaction, rather than as ends in themselves.’”

Conclusion

The process that led to the Abortion Legislation Bill has by-passed proper investigation into whether current abortion legislation should be altered, and if so how. I believe this lack of due process has resulted in a Bill with significant flaws. It appears the government’s desire to progress their government bill at speed has lead to a lack of due process, which is most concerning when dealing with an issue of death and life.

Having heard and read submissions as a member of the Abortion Legislation Select Committee these flaws were outlined in the many submissions that oppose the Bill.

In fact, I believe this report echoes the concerns of many submitters regarding the criteria for abortions post 20 weeks gestation, the impact of that broad criteria on allowing abortions for foetal 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.

Regardless of whether Members of Parliament agree with the intent of this Bill, I believe all Members should be determined to ensure that the result of this process is the best possible legislation.

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