It always shocks people to learn abortion is still a crime in New Zealand – we were, after all, the first country to enfranchise women. But an overhaul of our laws are desperately needed, and, be still my heart, abortion law reform could actually be an issue at the coming election.
To obtain an abortion anywhere in New Zealand (a relatively safe and short procedure), patients need to get approval from two doctors on grounds outlined in the Crimes Act. These include ‘serious danger to physical or mental health’, incest, or, in fairly callous legal language, ‘a substantial risk that the child, if born, would be so physically or mentally abnormal as to be seriously handicapped’. Legitimate grounds do not extend to sexual assault, though: in 1977, when the Abortion, Contraception and Sterilisation Act was passed by a nearly all-male parliament, it was reasoned women would simply lie about being raped in order to obtain an abortion.
Alison McCulloch’s Fighting to Choose is an excellent history of abortion law in New Zealand, but the long and short of it is that nobody in charge back then really cared about safe, legal, accessible abortion – they simply wanted to make the shouty feminists go away without annoying conservatives too much. Politicians were forced to legislate because of the public debate and protests which erupted following the opening of Auckland’s first abortion clinic in 1974. The law they passed was inconsistent and impractical then; it’s worse now.
New Zealand abortion law hasn’t kept up with medical technology, either: when Family Planning in Tauranga began to offer early medication (pill) abortions, anti-choice groups took legal action, arguing that the law requires abortion clinics to have surgical facilities – even if, in 2017, no surgical procedure is involved; even if, in 1977, no-one drafting that law foresaw that one day an abortion could be ‘performed’ simply by taking two pills.
Today, getting an abortion in New Zealand can involve five separate medical appointments: the initial pregnancy test and referral to an abortion provider (if your doctor provides referrals), two appointments with certifying consultants (if they both approve you), an initial consultation at the abortion clinic, and the procedure itself.
Moreover, in many parts of the country, the local District Health Board doesn’t offer abortion services. This means that patients from Greymouth face a three-and-a-half-hour drive each way to Lyndhurst Hospital in Christchurch, where they can expect to spend five to six hours (including procedure and post-care), with all the attendant costs of missing work or finding childcare. On average, it takes 25 days from that first medical appointment to actually getting a termination. As with everything from getting a bank loan to finding a job, it’s easier if you’re well-off, Pākehā, live in a major urban centre, and have higher formal education, but there are no guarantees.
In the 1970s, the Sisters Overseas Service helped fly women who wanted an abortion to New South Wales. We like to think those days are behind us, but in 2013, a young woman from Wellington was reduced to crowdfunding $7,000 to fly to Melbourne for hers.
How have we let this go on?
Abortion is one of those issues you don’t talk about. It’s icky. It’s been easy to overlook the patronising bureaucracy those who are pregnant have to navigate. It’s been easy to say the status quo is fine because we never hear anything to the contrary.
Then there’s the self-proclaimed ‘moral majority’ holding clinic vigils and hurling abuse on Facebook: they’re small in number but they frighten our political leaders.
We’ve held the line against challenges from the anti-choice movement – but technical legal arguments over clinic licensing and regulatory interpretation are difficult to mobilise wide support around.
Besides, we tell ourselves, things haven’t been so bad! We’ve had a right-wing government for nine years (but not one of those scary ones, like our poor Australian cousins have).
The credit, or blame, can go to Prime Minister John Key, an offensively inoffensive man, relaxed about everything, not exactly charming but firmly enshrined in the nation’s consciousness as A Guy You’d Want to Have a Beer With. He could sell New Zealand anything, but, crucially, he didn’t try to sell them this. Why burn political capital on massive ideological swerves when you could just softly-softly the nation towards the right over a decade?
Key took a ‘she’ll be right’ attitude to social issues – things didn’t really need to change. Until they did, and then they were no longer a big deal. He could vote against civil unions, then oppose marriage equality, then vote for it and claim credit for ‘driving’ the issue once it was clear which way the wind was blowing. Somehow it worked. We were reassured: maybe we wouldn’t get proper liberalisation of our abortion laws, but National weren’t going to launch a conservative crackdown, either.
Things are different now. Perhaps it’s our post-Trump awareness of how quickly extremists can win power and start dismantling public services and protections. Perhaps it’s the prominence of women’s protests and abortion rights in American politics, together with the internet connecting the same arguments and social movements happening all around the world. Perhaps it’s just our turn.
In February the Abortion Law Reform Association of New Zealand (ALRANZ) released polling data showing that over half of the population supported legal abortion across a whole range of scenarios.
Then, in March, figures were released showing hundreds of people had been told their abortion was ‘not justified’– highlighting the murkiness of the certifying process (some may still have been able to get abortions, but only after finding yet another certifying consultant to sign off on the procedure). This coincided with the Abortion Supervisory Committee making its annual report to parliament, which stated that it would be ‘an indictment’ not to update the law’s language.
Frances Cook of the Herald wrote an incredibly powerful piece about different people’s experiences of abortion, adding human faces to the decision, and revealing the ridiculous, belittling obstacles in the way.
The current mood was nicely summed up in an op-ed from ALRANZ President Terry Bellamak:
Our abortion laws are not working for the people who come in contact with the abortion bureaucracy. They waste taxpayers’ money and patients’ time. Parliament should have decriminalised abortion long ago.
All of which means that it’s been a hell of a start to the year. We have visibility, momentum, and a very interesting political situation, largely because John Key isn’t prime minister any more.
Our new PM Bill English lacks Key’s charisma; he carries the baggage of National’s record defeat in 2002 and his voting record speaks for itself: against decriminalising sex work, against civil unions, against marriage equality; for parental notification of abortion, for ‘gender clarification’ of marriage laws, for allowing celebrants to refuse to marry same-sex couples.
English has also boxed himself into a corner on abortion, in a way his predecessor would not have allowed. Immediately rejecting any review of our current law, despite the urging of independent experts – a law which uses language like ‘mentally abnormal’ and doesn’t reflect good medical practice – exposes him to criticism of ignoring facts and evidence in favour of religious ideology. It’s kryptonite to his biggest selling point in the broader political scene: a longstanding reputation as a responsible, objective managerial type.
Labour seems uncertain of how best to seize this opportunity. Deputy leader Jacinda Ardern initially called for abortion to be taken out of the Crimes Act, a move that was supported by leader Andrew Little – but their language has now changed to a more cautious ‘it’s a conscience issue’.
But a lot can happen in an election year. And the challenge for pro-choice activists is to keep this ball rolling.
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