What our abortion debate would look like

Former MP Peter Dunne writes in his column this week about the legalities and politics of an abortion debate in New Zealand. It will be different to Ireland's stunning referendum result.

Writing about abortion would normally be considered a very "courageous" thing to do, but Ireland's dramatic referendum result has re-opened a debate that many have wished to keep under wraps for a long time. The last such substantive debate in New Zealand was in 1977 when the Contraception, Sterilisation and Abortion Act was passed.

That Act followed the 1961 Crimes Act, which treated procuring an abortion, not the abortion itself, as a criminal issue. While it was not illegal for a woman to have an abortion, it was and remains illegal to procure an abortion on someone's behalf, but for the grounds set out in the 1977 Act. Yet, in the last 30 years, there have been just 12 such convictions, about a third of total prosecutions, suggesting very strongly that the incidence of the "crime" of procuring an abortion has become so rare as not to warrant its continued inclusion in the Crimes Act.

Indeed, the whole focus of the 1977 Act was on the health grounds relating to the circumstances under which an abortion could be performed, and the procedures for its authorisation.

The criminal aspect was but a carryover from the 1961 Act, rendered largely redundant by the Woolnough trial in 1975 (where a doctor had been acquitted on charges of carrying out abortions at an Auckland clinic), and has become increasingly and uncomfortably irrelevant.

So, the first conclusion to draw is that the removal of abortion from the Crimes Act is long overdue. The provision is essentially meaningless and redundant, but continues to throw a dark, unhelpful shadow over the abortion issue.

Official figures show that the abortion rate has been falling over the last 25 years. The highest annual number of abortions was 18,511 in 2003. But since 2010, the annual abortion rate has been falling steadily, by about 23 percent, from 16,630 in 2010 to 12,823 in 2016. In the same period, 1,504 requests for an abortion have been declined, but that rate too is falling, from 350 in 2010 to 252 in 2016. The not unreasonable conclusion can be drawn that the overwhelming majority of women seeking an abortion in New Zealand - just over 98 percent since 2010 - are able to have the operation, safely and legally.

Inevitably, some will see this as abortion "on demand", while others will consider the law is working as intended and does not need further change. As always, the truth lies somewhere in the middle. The steadily declining abortion rate does not suggest an out-of-control situation as abortion opponents might wish to promote, nor does the low number of declined cases suggest access to abortion is being denied unreasonably.

But questions do remain about how abortions are authorised. At present, a woman seeking an abortion requires the support of two certifying consultants, who are authorised by the Abortion Supervisory Committee. This cumbersome procedure was one of a number of compromise decisions that arose from the conscience debate in Parliament in 1977. It is a difficult combination to make work in every circumstance and warrants review.

A more appropriate approach today, given the justifiably strong assertion of patients' rights and informed consent that has developed over the last 30 years in the wake of the Cartwright Report in particular, long after the passage of the 1977 Act, would be to be make the abortion decision one between a woman and her doctor, based on informed consent. This change, and the removal of abortion from the Crimes Act, should form the basis of new legislation, better suited to today's circumstances.

The more difficult question is how to get there. Because abortion has traditionally been treated as a conscience vote by MPs, there is no certainty that even if the Government was to bring a Bill before Parliament, it would pass as intended, or even pass at all. A referendum, like the Irish one, might have been a possibility, but with referenda already looming on recreational cannabis, and now potentially assisted dying as well, that field is becoming a little crowded for the remainder of this Parliamentary term.

The Government's chosen option of seeking an investigation and report by the Law Commission by the end of the year is the safest interim course. But it also means law change is probably not going to happen before the next election.

Any legislation arising from the Law Commission's inquiry would be unlikely to be passed by Parliament before the first part of 2020 at the earliest, which the Government may consider a little too close to the election for comfort, leaving the more likely outcome being the issue is deferred until the next Parliament.

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