Appeal court strikes out abortion finding

The Court of Appeal has quashed a High Court judge's findings that doubted the lawfulness of many abortions in New Zealand.

It has also clarified the role of the Abortion Supervisory Committee, saying it does not have the power to review the decisions of certifying consultants to either authorise or refuse an abortion.

In a High Court decision in 2008, Justice Forrest Miller said: "There is reason to doubt the lawfulness of many abortions authorised by certifying consultants."

He was presiding over a case in which Right to Life New Zealand (RTL) sued the committee for alleged failure to perform its functions under the Contraception, Sterilisation and Abortion Act.

RTL alleged the committee had failed to apply the law correctly by not taking action to review whether certifying consultants, who certify that a woman meets the statutory grounds to have an abortion, were acting unlawfully.

RTL said many abortions were wrongfully certified under the oft-used "threat to the woman's mental health" when in fact the grounds for an abortion were not met.

Justice Miller rejected its arguments that an unborn child had any legal right to life under abortion law, the New Zealand Bill of Rights Act, common law or international law.

But he said there was reason to doubt the lawfulness of many abortions and held that the committee had the power to review or scrutinise certifying consultants' decisions by gathering relevant information and forming its own opinion about their lawfulness.

The committee appealed against his findings on the lawfulness issue and as to the extent of its powers while RTL cross-appealed on his findings on the right to life finding and other matters.

In a decision released today, a Court of Appeal bench of Justices Robert Chambers, Terence Arnold and Lyn Stevens, allowed the committee's appeal and dismissed RTL's cross-appeal.

They held that the law does not recognise or confer a right to life on the unborn child.

A majority - Justices Chambers and Stevens - held that Justice Miller erred in his findings as to the scope of the committee's power to review certifying consultants' decisions. They said the decisions of consultants involved medical judgment alone. Any complaints about the consultants could be made to and investigated by the Health and Disability Commissioner or police.

It was not open to the committee to form its own opinion about the lawfulness of decisions by the consultants, they said.

They quashed Justice Miller's findings on the lawfulness of abortions.

Justice Arnold dissented in part, saying he considered the committee had to keep the work of consultants under review. He agreed the committee could not interfere with the decisions of certifying consultants in individual cases but considered that it could review such decisions as part of its general role of reporting to Parliament on the abortion law.

He considered that Justice Miller was entitled to express the qualified views that he had about the way the abortion law was operating in New Zealand. Accordingly, he would have dismissed the appeal.

- NZPA