On 27 February 2018 the Minister of Justice wrote to the Law Commission noting the Government was considering how best to ensure New Zealand’s abortion laws are consistent with treating abortion as a health issue.
The Minister asked the Commission, as a matter of priority, to provide advice on what alternative approaches could be taken in our legal framework to align with a health approach.
The Minister stated that he expected the Commission’s advice to include reviewing the criminal aspects of abortion law, the statutory grounds for abortion and the process for receiving services. These are contained in the Crimes Act 1961 and the Contraception, Sterilisation and Abortion Act 1977.
The Commission was asked to provide its advice in the form of a ministerial briefing paper within eight months of the Minister’s request. The Minister also asked the Commission to seek input from appropriate health professionals and provide an opportunity to receive the public’s views.
Read the Minister's letter of request.
Public submissions were sought between 4 April and 18 May 2018. The Commission received 3,419 submissions.
The Commission’s advice was provided to the Minister on 26 October 2018 in Alternative approaches to abortion law (NZLC MB4).
Alternative approaches to abortion law (NZLC MB4)
This ministerial briefing paper provided advice to the Minister of Justice on alternative approaches that could be taken in New Zealand’s abortion laws if the Government decides to treat abortion as a health issue. It describes three alternative legal models:
- Under Model A there would be no statutory test that must be satisfied before an abortion could be performed. The decision whether to have an abortion would be made by the woman concerned in consultation with her health practitioner.
- Under Model B there would be a statutory test. The health practitioner who intends to perform an abortion would need to be satisfied that the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing.
- Under Model C, there would be no statutory test until 22 weeks of a pregnancy. After 22 weeks, the health practitioner who intends to perform an abortion would need to be satisfied that the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing.
Regardless of which model may be 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 don’t 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.
Note: the briefing paper refers to the Termination of Pregnancy Bill 2018 (Qld). The Bill was passed by the Queensland Parliament on 17 October 2018, shortly after the briefing paper was finalised for printing.
Te Aka Matua o te Ture | Law Commission provided an opportunity for members of the public to give their views on abortion law between 4 April and 18 May 2018. The Commission received 3,419 submissions.
Of those submissions, 61 were from organisations such as government bodies, professional organisations, academic groups, religious organisations and interest groups. A further four submissions were made by peer groups within professions. The remaining 3,354 submissions were from people speaking in their personal capacity.
You can read the submissions below.
The submissions have been redacted to remove personal information so that individuals cannot be identified.
A summary of the submissions can be found in Appendix 5 of the Commission’s ministerial briefing paper, Alternative approaches to abortion law (MB4).