New Zealand: Rulings on Abortion

Many thanks to Y.Y. Brandon Chen, a doctoral student in law who is also a Research Assistant in our International Reproductive and Sexual Health Law Programme, for summarizing these recent developments from New Zealand.

The Abortion Supervisory Committee v. Right to Life New Zealand Inc.  [2011] NZCA 246  online here
 
Summary of the Court of Appeal Decision and a Subsequent Development in the Supreme Court
 
Summary
In June 2008, a New Zealand High Court judge ruled that the Abortion Supervisory Committee (“ASC”) is responsible for the general oversight of certifying consultants, and may review their individual decisions. On June 1, 2011, a majority of the NZ Court of Appeal partially reversed this ruling, but upheld the rulings that unborn children enjoy no legal right to life, and that the ASC had fulfilled its duty to make adequate counselling services available to women seeking abortion care.
 
Background to the Court of Appeal Decision
Under the New Zealand Crimes Act 1961, abortion services are lawfully available in only limited circumstances: namely, when (1) there is serious danger to the woman’s life, or physical or mental health; (2) there is a serious fetal abnormality; (3) pregnancy is a result of incest or sexual relations with a guardian; or (4) the woman is severely mentally “subnormal.” A woman must first obtain approval from two certifying consultants who are medical practitioners that at least one of these legally permissible grounds for abortion is met. Pursuant to the Contraception, Sterilization and Abortion Act 1977 (“CSA Act“), the functions of the ASC include appointing certifying consultants, licensing healthcare facilities to perform abortion, and ensuring adequate counselling  to women seeking abortion.
 
Right to Life New Zealand Inc. (“RTL”) applied for judicial review of how the ASC had exercised its functions and powers under the CSA Act. It argued that the ASC failed (1) to take into account the rights of the unborn child when performing its statutory duties, (2) to take all reasonable steps to ensure availability of counselling facilities, and (3) to review certifying consultants’ decisions and hold them accountable accordingly.
 
The High Court judge rejected any legal right to life of the unborn, and dismissed the claim of inadequate counselling services. However, he expressed doubts about the lawfulness of many abortions authorised by certifying consultants, since abortion laws were being applied more liberally than Parliament intended. He found that the ASC did have power to subsequently scrutinise and review decisions of certifying consultants.*
 
Subsequently, the ASC appealed to the Court of Appeal with respect to its statutory powers regarding decisions of certifying consultants. RTL cross-appealed concerning the rights of unborn children and the availability of counselling services.
 
Decision of the Court of Appeal
The New Zealand Court of Appeal unanimously upheld the High Court decision that there is no legal right to life for unborn children. NZ abortion laws follow the common law rule that recognizes legal personhood only at live birth. Without reaching final decisions, the Court also expressed reservation about RTL’s argument that the New Zealand Bill of Rights and the UN Convention on the Rights of the Child extend a right to life to the unborn. The Court agreed with
the lower ruling that the ASC had adequately ensured availability of counselling services.
 
However, a 2:1 majority of the Court of Appeal overturned the ruling regarding the scope of  ASC’s functions and powers in overseeing certifying consultants. The majority ruled that the CSA Act tasked the ASC with general oversight of certifying consultants’ work, but not to the extent of reviewing decisions made in individual cases, except when bad faith is alleged. Accordingly, evidentiary findings concerning the high rate of abortion approvals, and comments about the lawfulness of certifying consultants’ decisions, ought not to have been made.
 
Appeal to the Supreme Court of New Zealand, [2011] NZSC 97   online here
In August 2011, the NZ Supreme Court agreed to hear RTL’s challenge of the Court of Appeal ruling on ASC powers over certifying consultants’ decision-making. However, RTL’s applications to appeal on legal rights of the unborn and the adequacy of counselling services were dismissed as untenable, for reasons given by the Court of Appeal.

* For more context on this case, see 2008 commentary  online here, written by our Programme Fellow, Simone Cusack.

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