On 27 February 2018 the Minister of Justice asked the Law Commission, as a matter of priority, to provide a briefing paper advising what alternative approaches could be taken in New Zealand’s legal framework to align with a health approach to abortion. The Minister asked the Commission to report back to him within an eight-month timeframe.
The Commission provided the advice in its Ministerial Briefing Paper: Alternative approaches to abortion law, which was tabled in Parliament on 26 October 2018. It provided three possible models that the Government could adopt.
The first model (Model A) contemplates no specific abortion legislation. It would entail repealing the abortion provisions in the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977. The decision to have an abortion would be made by the woman in consultation with her health practitioner.
Model B would involve a statutory test, whereby the health practitioner who intends to perform the abortion would need to “reasonably believe the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing.” This is a broad test that does not prescribe the circumstances in which an abortion could be performed.
Model C combines elements of the other two models, depending on the stage of gestation. For pregnancies up to 22 weeks the situation would be the same as in Model A – the decision would be made by a woman in consultation with her health practitioner. For pregnancies of more than 22 weeks gestation the same test would apply as Model B – the health practitioner would need to reasonably believe the abortion is “appropriate in the circumstances, having regard to the women’s physical and mental health and wellbeing.”
Regardless of which model is preferred, the Briefing Paper sets out several other changes that could be made to align the law with a health approach to abortion. They include:
- Repealing the current grounds for abortion in the Crimes Act.
- Removing the requirement for abortions to be authorised by two specially appointed doctors called ‘certifying consultants’.
- Repealing the criminal offences in the Crimes Act relating to abortion. Instead, other offences in the Crimes Act and health legislation that currently exist would protect women from unsafe abortions. If Model B or C is adopted, an additional offence could be introduced in health legislation for people who perform abortions that do not meet the statutory test. In no case would the woman be subject to an offence.
- Allowing women to access abortion services directly, rather than having to get a referral from a doctor as they do under the current law.
- Removing the current restrictions around who may perform an abortion and where abortions must be performed. Instead, the provision of abortion services would be regulated by appropriate health bodies, the same as any other health care procedure.
- Moving the Abortion Supervisory Committee’s oversight responsibilities to the Ministry of Health.
Requiring health practitioners who do not wish to provide health services in relation to abortion because of a conscientious objection to refer women to someone who can provide the service.