Alison McCulloch: Appeal court can't fix fundamentally flawed abortion law

Government lawyers are due back in court this month defending flawed abortion laws against an effort to make them even worse.

The anti-abortion group Right to Life began its latest legal battle over abortion five years ago and the case has now reached the Court of Appeal. Last year, the group was buoyed when Justice Forrest Miller ruled in the High Court that there was "reason to doubt the lawfulness" of many abortions in New Zealand.

Indeed, Justice Miller went on to say, the Abortion Supervisory Committee itself "has stated that the law is being used more liberally than Parliament intended".

To which the only sensible answer is: thank goodness. Thank goodness the clinics and doctors and women of this country have managed to adapt such an outdated, cumbersome law so as to give New Zealanders access to the kind of reproductive health care one might expect of a modern Western nation.

But the problem is not just that time has passed this legislation by. Its flaws were clear the moment Parliament voted it into the statute books in December 1977, after an all-night debate during which more than a quarter of the House spent crucial hours either absent or asleep.

Mike Minogue, then National MP for Hamilton West, said at one point he was sick of arguing complicated issues to "certain sleeping gentlemen" who woke when the division bells rang and followed Bill Birch into the appropriate lobby. Only four of Parliament's 87 MPs were women, and all opposed the legislation.

Prime Minister Rob Muldoon, an outspoken abortion opponent, wasn't caught napping, but he went missing for eight hours. He complained later about amendments excluding fetal abnormality and rape as grounds for abortion, admitting he couldn't remember whether or not he'd voted on them. It turned out he hadn't. The law that passed that day had to be amended in six months just to get out of the starting gate.

But more important than the debating chamber slumber were the legislation's intellectual - or more accurately, anti-intellectual - roots: The Royal Commission on Contraception, Sterilisation and Abortion.

This poorly argued and remarkably conservative document continues to cast a long shadow, both through the laws it generated and because it is still being used as a guide for their interpretation. Justice Miller made that clear last year when he cited the royal commission in his ruling on the Right to Life case.

Under the current laws, a woman seeking an abortion in New Zealand must get approval from two certifying consultants on one of four main grounds. The cries of illegality from anti-abortion groups arise over the fact that more than 98 per cent of the abortions performed each year are granted on grounds of risk to the mental health of the mother.

Studying the 30-something-year-old report that laid the groundwork for this legislative quagmire, it's hard not to be struck by the shoddy arguments it offers up - circular and contradictory reasoning, selective use of evidence and blatant errors, to mention just a few.

Speaking at a Family Planning conference in 1977, Dr Tony Johnston said that if it were submitted to him by an honours or masters student he would "return the document to its author". And not with an A+.

Among his criticisms was the way it confounded scientific method with what Johnston called a "minority moral values" position. Indeed, the report is big on "values", looking longingly backward to a time when it imagined morals were clearer and stricter, the family more stable, the church more influential. And, oh, how it wanted those imaginary times back again.

Just like the 1954 Mazengarb inquiry into juvenile delinquency before it, and the 1937 investigation of abortion before that, the royal commission saw evidence of serious moral decline almost everywhere it looked, a veritable "tide of permissiveness" to use its own phrase.

"Until comparatively recently," it lamented, moral standards were "strongly influenced by the organised churches with their uncomplicated teaching that 'right is right and wrong is wrong,' and, in matters pertaining to sex, their insistence on the virtues of chastity".

The 1937 and 1954 reports were filled with similar laments - leading one to wonder how we are still standing, given the moral decay that's been piling up around us for so many decades.

In the end, the commission's twists and turns look like little more than a ham-fisted attempt to make the evidence fit a desired political outcome. Muldoon and others were committed to what they called a "middle of the road" option, where abortions would be restricted, but not banned outright.

For the commission, that meant trying to construct a formula that could distinguish worthy abortions from the rest. Which is how, for example, it could end up arguing that an abortion "for reasons of social convenience is morally wrong" on the very same page as giving the moral green light to aborting "handicapped" fetuses, "because the burden of the handicapped person to himself and to his parents may be greater than the sum total of their happiness".

Like most of its moral judgments, the one about "social convenience" existed only in the eye of its beholder. It's frightening that a document filled with such subjective and frequently contradictory assertions should now be held up by judges for its royal pedigree.

It's no wonder anti-abortion activists continue their efforts to gnaw away at women's rights through the courts.

Politicians know the laws are a mess. Their own Abortion Supervisory Committee, for one, has frequently told them so.

But like their counterparts in 1977, MPs of every Parliament since have wanted to debate abortion about as much as the Class of 2008 wants to revisit smacking, which leaves the rest of us to muddle along as best we can. If that means being more "liberal" than the 1977 Parliament was, all to the good.