Despite the social liberalisation of the 1960s and 1970s, legal abortion was hard for New Zealand women to access as the Crimes Act 1961 made it lawful only 'for the preservation of the life of the mother' – a judgement made by doctors. A few women were granted legal terminations in New Zealand hospitals, and others had the funds to go to Australia, but many took their chances with 'backstreet' abortionists. In May 1974 the first abortion clinic had opened in Epsom, Auckland; in September 1974 Labour MP Dr Gerard Wall's Hospitals Amendment Bill was passed, restricting abortions to public hospitals, where many doctors were unwilling to perform terminations. In September 1975 the law was declared invalid and a Royal Commission on Contraception, Sterilisation, and Abortion (CS&A) was appointed. Its 1977 report was considered to favour the rights of the foetus, and recommended that women seeking abortions should appear before decision-making panels of doctors.
Marilyn Waring had been elected aged 23 in 1975 and was one of only two women MPs in the governing National Party led by Prime Minister Robert Muldoon. She believed that where there were sufficient grounds, termination was a decision for the woman concerned. In this extract from her new memoir, Marilyn Waring: The Political Years, she tells the story of an extraordinary all-night sitting of Parliament when access to abortion was restricted rather than liberalised and how she fought for women's rights to choose.
In April, Des Dalgety, Muldoon's lawyer and Society for the Protection of the Unborn Child (SPUC) president, hosted a dinner at his home for Muldoon, [Minister of Health] Frank Gill and the Roman Catholic Cardinal Delargey. It was here that they worked out the strategy for dealing with the royal commission report.
Gill, they decided, would introduce the Bill based on the report. Dalgety and SPUC would get busy drafting their amendments and lobbying MPs so that they would have one of their anti-abortion supporters move all these amendments – something Minister Gill couldn't do. Gill would introduce the Bill in October, which would give SPUC plenty of time to get organised and lobby. Muldoon, who had made himself Leader of the House, and so controlled the daily parliamentary Order Paper, would take urgency and run the debates all night to get through them as fast as possible. There would be no reference to a select committee.
SPUC, Dalgety and Muldoon had settled on Chief Government Whip Bill Birch to be their man. In November 1977 Birch sent a letter to all medical practitioners with a copy of his proposed amendments, which set up an Abortion Supervisory Committee (ASC) and panels of certifying consultants, and left out the general practitioner (GP). By then, 1,300 of an estimated 1,500 GPs had referred patients to the Epsom clinic. The proposed panel system had operated, for example, at Wellington and Hutt hospitals, which processed, on average, 26 women per year from 1971 to 1975, while 312 women were referred to the Aotea Clinic from the Wellington–Hutt region in 1974. Polls consistently showed over 65 per cent of New Zealanders favoured the woman alone, or the woman and her doctor, making this decision.
On the first reading of the Bill, Mike Minogue made his feelings about Muldoon's tactics plain: 'I certainly resent the fact that I am saying this at twenty-five to two in the morning when I can hardly think what I am saying. I suggest that this is no time for decision-making.'
I spoke after Mike:
The New Zealand Association of Scientists in August 1977 stated that unsupported statements, imprecise definitions and uncritical evaluation of contradictory research findings are to be found in this [the Royal Commission] report.
The proper formulation of the issue involved in the abortion question is not whether or to what extent abortion should be permitted, but whether or to what extent the freedom of decision that modern medicine makes possible should be abridged.
If in the final analysis there is one principle that is to be acknowledged to be the standard by which the political arrangements as a whole are judged, and by which the fitness of proposed laws are measured, it is the principle of liberty paraphrased in the 1975 National Party manifesto as freedoms.
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When, from a consideration of personal freedom, there is doubt about the specific content of legislation – and there is in this case – or substantial disagreement about the broader premise on which the legislation must be justified – and there is in this case – the presumptions of liberty must prevail. The acid test in the last analysis is whether the House is prepared to pass legislation that flaunts this principle as it affects women and as it affects the legal and medical professions. Justice is considerably slower than procreation. A woman pregnant against her will cannot wait for a court to make up its mind; she goes out and finds an illegal abortionist because it is faster and cheaper.
I then sought leave of the House to table six affidavits I had referred to in my address which demonstrated the royal commission's proposals wouldn't work. Just one MP's objection can stop this. Muldoon objected.
As the Bill and debate moved to the committee stages, anti-abortion MPs moved quickly to make the legislation even worse. Dalgety succeeded in getting his draft of the long title of the CS&A Bill accepted, including the phrase 'having full regard to the rights of the unborn child'.
A crucial clause proposed by Gerard Wall 'that all possible means of resolving the risk to a woman's health must be exhausted before an abortion could be approved' was passed at 5.58 a.m. by 34 votes to 26. This amendment prohibited abortion when the serious danger to the mental or physical health of the woman could be averted by any other means. Its practical effect was to outlaw abortion totally.
At 6.05 a.m. a clause moved by Labour MP Sir Basil Arthur removed foetal abnormality as grounds for termination. We lost again 34–26.
The inclusion of rape as an automatic ground for abortion was voted on at 7 a.m. We lost 37–22.
Whetu Tirikatene-Sullivan's proposal putting the abortion decision in the hands of a woman and a doctor of her choosing lost 45 votes to 15.
George Gair was trying to find some middle ground. He moved amendments all night to:
— replace the proposed system of panels, and to substitute this with two doctors agreeing that the abortion was justified
— remove the proposed supervisory committee, and to transfer its licensing function to the Director General of Health
— add social workers to the list of persons authorised to supply contraceptives to children under 16 years of age, to direct or persuade such children to use contraceptives and to advise such children on contraceptive matters
— require the Director-General of Health to grant a renewal of a clinic licence unless he considered there were grounds for not doing so
— remove criminal liability from a female who attempted to procure her own miscarriage.
They were all lost.
In addition to those 13 MPs who were ill or overseas, 14 male MPs who were present in the House at the beginning of the debate were no longer recording votes and had apparently 'gone home'. Among these was the Prime Minister, whose last recorded vote on a division was shortly before 2 a.m. His first recorded vote later on Wednesday morning was at 10.31 a.m. I alerted the media, who asked him what he had voted for and when. He couldn't remember.
The third reading passed on 15 December 1977 and became law on 1 April 1978, although the all-important abortion-related amendments to the Crimes Act (which contained grounds under which abortions can be granted), and in particular the Wall amendment [requiring that all other means of resolving the risk to a woman's health had to have been exhausted], took immediate effect. This meant that as soon as it was passed, the Contraception, Sterilisation, and Abortion Act of 1977 proved both unclear and unworkable. No one would or could operate legally.
* The Epsom clinic closed immediately, and SOS groups formed to help women fly to Australia to access a safe and legal abortion. The CS&A and Crimes Acts were amended in 1978 to make the situation more 'workable': the Wall amendment was removed and foetal abnormality (but not rape or extremes of age) was added as a ground for termination. The 1977 Act, which makes it illegal for a woman to choose to terminate her pregnancy without the approval of two doctors, is still current legislation.
Marilyn Waring: The Political Years (Bridget Williams Books, $40). Marilyn Waring speaks at the Auckland Writers Festival on Sunday at the Aotea Centre's ASB Theatre from 4-5pm