An announcement of new legislation is looming, but there are signs that reform might be less liberal than pro-choice campaigners were wanting. Photo / Mark Mitchell
What's happened to the Government's promised liberalising reform of abortion laws? An announcement of new legislation is looming, but there are signs that reform might be less liberal than pro-choice campaigners were wanting or expecting.
The concept of a "woman's right to choose" is at the centre of the demand for abortion liberalisation reform. Campaigners believe that neither the state nor doctors should have any say in whether a woman terminates a pregnancy. They want the current laws repealed so that the existing legal and practical barriers are removed, allowing individuals to freely obtain pregnancy terminations. And this was something promised by Jacinda Ardern during the 2017 election campaign.
However it's not clear that this is going to be delivered. Instead, it looks more likely that only some barriers will be removed, meaning that a woman's right to choose will be remain limited.
So far, the Government's reform plans on abortion liberalisation are well behind schedule. Delays, produced by internal coalition negotiations, suggest that the reform agenda is in danger, and there must some risk that the promised legislation won't get passed this year as planned.
Originally, a Cabinet decision was due at the end of last year, following the November publication of the Law Commission's report on reform options. This report gave three options for reform – ranging from Option A (complete decriminalisation) to Option C (partial decriminalisation, based on a cut-off date of a 22-week gestation – after which a medical consultation process would still be necessary). And ever since then the Government has been suggesting that a decision is imminent.
The latest news on the abortion reform process came earlier this month in Claire Trevett's article, Breakthrough sees possible abortion reforms back on track (paywalled). According to this, the Government appears to have decided on a reform option that would see a degree of liberalisation, with women being given the right to choose to have an abortion – without legal barriers – for the first 19 or 20 weeks of pregnancy. But after 19 or 20 weeks, any woman seeking a termination would still need to go through a consultation process with a doctor.
This amounts to the Government choosing the more conservative Option C from the Law Commission, but shifting the cut-off point forward from 22 weeks to 19 or 20. After that 19-20 weeks of pregnancy, abortion would essentially remain subject to the Crimes Act or something similar.
As Justice Minister Andrew Little said in an interview late last year, "If the threshold test is to have any meaning, there's got to be consequences" – see Dan Satherley and Simon Shepherd's Justice Minister Andrew Little backs removing legal restrictions on abortions up to 22 weeks. According to this report, "it's not clear what would happen if an abortion was carried out after the 22-week threshold without meeting the statutory requirements".
That article also points out that "During consultation almost all health professionals supported having no test." This is also a point made by Eleanor Ainge Roy's Guardian article, New Zealand pro-choice campaigners hail move towards abortion law reform. She reports that the Law Commission "found health practitioners and professional bodies were 'almost unanimous' in their support for model A."
Furthermore, she reports that "Terry Bellamak, director of ALRANZ Abortion Rights Aotearoa, said model A was the only option that would make accessing abortion a more streamlined and dignified experience for women, many of whom found the existing system 'degrading'." This model – which asserts a woman's right to choose at any stage of the gestation – is used in other countries such as Canada.
Bellamak also writes about this elsewhere, quoting Little's justification for keeping a limit on women's right to choose: "given the likely viability of the foetus there are public policy considerations that come into it that I think a GP should be held to when they are giving advice." She provides her own interpretation of what Little means by this: "it looks like he's saying women can't be trusted not to request abortions later in pregnancy in situations where the doctor would be required to put a check on their wishes and deny their abortion in the interest of public policy. It implies women are likely to delay requesting abortions for reasons that are morally indefensible" – see: Four different perspectives on reproductive rights.
She points to the fact that "women in other countries have been deciding to receive abortion care without let or hindrance for yonks", and therefore suggests that limiting a women's right to abortion is "sexist" and "shows a complete lack of trust in women and pregnant people as fully autonomous human beings". Furthermore, she argues that "the cultural narrative of a woman popping off to get an abortion on a whim at a late stage for morally indefensible reasons" is a "ridiculous lie".
Another pro-choice campaigner, Liz Beddoe, says "Most people want the option which leaves the decision to terminate a pregnancy to the pregnant person and would enable self-referral to free and accessible services" – see: As US protection of abortion rights weakens, NZ should strengthen laws.
Beddoe is suspicious that the Government is watering down the reform agenda: "We were told by Minister of Justice Andrew Little that a decision would be announced in April. In the middle of May we have yet to hear that decision. Women are questioning what is happening behind the scenes? What rights are being traded as coalition politics pitting conservative New Zealand First politicians against Labour and the Green Party, both of which have promised reform? Will we yet again see our rights cynically traded for political favours? This is a watershed moment for women's reproductive freedom in Aotearoa."
A challenge is issued to the Prime Minister not to compromise: "Will the Prime Minister stand up to the misinformed, selfish zealots and deliver women a safe legal abortion service as promised? Women are watching and anything less than this, with protection of patients and health professionals from harassment, will not be forgiven. It's time Prime Minister. This is the 'well-being' legislation we want."
Most politicians are likely to favour the compromise solution of Option C. This is explained by Claire Trevett in her excellent overview article from late last year, in which she examines the orientation of various MPs and political parties to the prospect of reform – see: To the Barricades: The battle over abortion forty years on.
From this, it appears that the only MP who overtly favours complete decriminalisation of abortion is Act MP David Seymour. The Greens don't seem to have come to a position on this, while the other parties are clearly divided. The overwhelming lesson of Trevett's article is that virtually all politicians are treading very carefully for fear of offending voters Even someone as normally outspoken as Judith Collins is noted as being reluctant to talk. And Jacinda Ardern, despite her promises of reform, wouldn't be interviewed on the topic.
In contrast to the timidity of MPs on abortion reform, there seems to be a growing societal mood in favour of a "woman's right to choose" on the matter. According to one recent poll, two-thirds of New Zealanders are in favour of a women's right to choose – see Regan Paranihi's Abortion survey: 66% support women's right to choose.
A Newshub-Reid Research Poll in March also showed the majority want abortion decriminalised – see Tova O'Brien's Revealed: Large majority of Kiwis want abortion law change.
Clearly politicians are struggling to catch up with the public on this issue. I wrote about the rise of abortion politics in New Zealand in two 2017 political roundup columns: Should abortion be decriminalised? and The uncomfortable abortion reform challenge. As I explained in these columns, there are some disappointing reasons that the issue of abortion law reform has been kept off the agenda and, although politicians lacked the courage of their convictions on this, they were being forced to confront a growing demand for change.
Late last year I also wrote about the rise in public acceptance of abortion: "Abortion has gradually become more acceptable to the wider public. Yet over that forty years politicians of all sides have effectively kicked for touch on the issue, happy with a compromise situation in which abortion laws have been draconian in theory, but liberal in practice. Therefore, the politicians – from Labour and National, alike – have simply not kept up with social progress" – see: The mild abortion "culture wars".
In this article, I also tracked how the topic of abortion reform had heated up after a long period of inactivity. This is reflected in my research on media publications: "the number of published articles about abortion remained relatively stable since 1991, with normally about 700 published each year. But since 2017, the number of published articles mentioning "abortion" has started to skyrocket" reaching about 2000 articles last year.
Last week saw an explosion of new articles relating to abortion due to National MP Alfred Ngaro's views on the matter being investigated. The MP shared a Facebook post comparing abortion to the holocaust, which he later expressed regret over saying abortion was, more accurately, a tragedy. He also made a very contentious statement questioning the necessity of abortion reform: "Here's the thing: Has any woman actually ever been made to feel like a criminal? Absolutely not. Those provisions have been there for some time".
Ngaro also brought the discussion back to the question of when a "woman's right to choose" begins and ends, "claiming the Government had suggested abortions up to the full term of 40 weeks as part of changes to abortion law" – see Katie Fitzgerald's Government 'poked the bear' with discussion about abortion rights – Ngaro.
He argued the Government was being provocative in potentially giving women the right to choose at any point during gestation: "I tell you who poked the bear, it was this Government which decided in their recommendations they want to go from 20 weeks to 40 weeks. Now the question is do you think New Zealanders accept that? Absolutely not."
Finally, partly in response to Ngaro's claims, but also in reaction to the increased debate about abortion reform, there have been plenty of personal stories published of womens' lived experiences of abortion and contraception – see, for example, Emma Espiner's Abortion – a life on my terms, Lynn Williams' On Abortion, and Paula Penfold's Women are in fact made to feel criminal, Mr Ngaro.
They allege the Crown ignored Treaty obligations by not engaging with them.