A brief history of abortion laws in New Zealand
Before the 19th century in England, common law held that an abortion was permissible if carried out before quickening (fetal movements) i.e. about 18-20 weeks gestation. In 1803, in the reign of George III, Lord Ellenborough's Act was passed, a repressive "law and order" measure which meted out harsh penalties for a whole range of offences including abortion. Penalites included death or being transported to the colonies. Abortion was a felony both before and after quickening although the punishment before quickening was less severe.
The English 1861 Offences Against the Person Act revised penalties and made it an offence not only for the woman to procure her own an abortion but for anyone else who attempted to procure an abortion, whether or not the woman was actually pregnant.
New Zealand adopted the English law, an exact replica of the 1861 Offences Against the Person Act.
New Zealand passed the Criminal Code Act, which reduced the penalty for the woman to a maximum of seven years' imprisonment and life for others.
The Crimes Act defined when a child becomes a human being within the meaning of the statute. Section 182 relates to the "killing" of a child before or during birth. This section is to protect the obstetrician who may have to sacrifice the child to save the mother.
Dr Aleck Bourne, a prominent London gynaecologist brought a test case, after the rape of a 14-year-old girl. Mr Justice Macnaghten helped define "unlawfully". The defence was that the abortion had been carried out because continuing the pregnancy would make her a "physical or mental wreck". The rape occurred in April 1938, the abortion in June and the trial took place in July 1938. The judge's ruling was published in 1939. The ruling influenced the interpretation of the law in New Zealand.
The Crimes Act was revised in 1961 with no changes to the section on abortion. During the 1960s public opinion on several issues became less repressive. A more liberal law was passed in the United Kingdom in 1967 which allowed socio-economic circumstances to be taken into account, but New Zealand did not follow suit.
Court cases in Australia gave a more liberal interpretation to state laws which varied from one state to another. Mr Justice Menhennit in Melbourne in 1969 and Mr Justice Levine in Sydney in 1971 both gave a liberal interpretation to what was lawful. New Zealand women with means could now obtain a legal abortion in these two States of Australia (Victoria and New South Wales).
Reflecting changes in medical and public opinion, the Auckland Medical Aid Centre opened to carry out abortions in a private facility. In September 1974 the clinic was raided and police siezed 500 files. On 10 January 1975 the Court of Appeal ruled that the search warrant had been invalid but the files were used to bring the operating doctor, Dr Jim Woolnough to trial. (see below). He was subsequently acquitted, but because of a change in the abortion laws he could not continue operating. The clinic closed in December 1977 as a result of the Contraception, Sterilisation and Abortion Act (CS&A Act) and did not reopen until August 1979 after a legal battle to obtain a licence.
The Hospitals Amendemnt Bill (Wall Bill) was introduced in an attempt to restrict abortions to public hospitals. This was passed in May 1975 with Mr Highet's amendment extending operations to licensed hospitals. A system of notification of abortions was introduced. In September 1975, Mr Justice Speight ruled that the law was invalid because it related to the wrong section of the Crimes Act (Section 182).
In the New Zealand trial R. v. Woolnough. Dr Woolnough was charged on twelve counts of procuring unlawful abortions. The first trial under Mr Justice Speight resulted in a hung jury (21 August 1975). The second trial under Mr Justice Chilwell resulted in acquittal (27 November 1975). The Court of Appeal upheld the not guilty verdict. Dr Woolnough held an honest belief that there was a danger to the physical or mental health of the twelve women.
Due to intense public debate a Royal Commission of Inquiry on Contraception, Sterilisation and Abortion was established by the Labour Government under Prime Minister Rowling. The six-member commission under Mr Justice McMullin was appointed in June 1975 and deliberated for 21 months.
The Gill Bill, introduced by National's Minister of Health, Air Commodore Gill, like the ill-fated Wall Bill, attempted to restrict abortions to public hospitals. National's Mr George Gair moved that any action be deferred until after the release of the report of the Royal Commission.
The report of the Royal Commission was published. It was very conservative and very controversial. It recommended 12-14 abortion panels throughout New Zealand.
National introduced the Contraception, Sterilisation, and Abortion Bill. After many amendments and one all-night sitting, it was passed on 15 December 1977. Parliament also amended the Crimes Act and seven other Acts, including the Guardianship Act, relating to girls under 16 years being able to make a decision in their own right. Panels were discarded in favour of "certifying consultants". The new procedures for obtaining an abortion came into effect on 1 April 1978 under the supervision of the new body, the Abortion Supervisory Committee.
The new legislation proved unworkable. Many women had to travel to Australia for an abortion. Due to public clamour, the Abortion Supervisory Committee recommended changes to the Crimes Act, with fetal abnormality to be included as a ground and the deletion of the phrase "and the danger cannot be averted by any other means". In the CS&A Act the procedures were altered so that a surgeon must first agree to operate.
In Wall v. Livingstone, anti-abortionist Dr Melvyn Wall of New Plymouth challenged the decision of two certifying consultants who had authorised an abortion for a young girl. He lost and the Court of Appeal confirmed that he had no standing to represent the fetus.
Two private members Bills, one liberal (Marilyn Waring) and one restrictive (Doug Kidd) were both defeated.
Helen Clark, Minister of Health in the Labour Government, tried but failed to simplify the certifying procedures (any two doctors, one with obstetric or gynaecological expertise). However Parliament agreed by a substantial margin to repeal Section 3 of the CS&A Act relating to contraception and under 16 year olds.
1980s and 1990s
Anti-abortionists tried, via trespass cases, to represent the fetus but these failed, including one which went to the Privy Council in London.
A High Court judgment by Mr Justice Durie clarified Section 18 of the CS&A Act with respect to "performing" medical abortions, stating that women must take the medications in a licensed facility but women do not need to stay there between taking the two sets of tablets (48 hours apart). Nor is it compulsory for them to stay in a licensed hospital or clinic until the fetus is expelled and the abortion is complete.
When the Medical Council circulated guidelines on Beliefs and Medical Practice a group of doctors opposed to abortion sought a ruling in the High Court relating to their right to conscientiously object. In December 2010 the judgment of McKenzie J stated that under sect 46 of the CS&A Act doctors with a conscientious objection are not obliged to assist in the performance of an abortion and under sect 174 of the Health Practitioners Competenece Assurance Act 2003 the doctor is only obliged to inform the woman that she can obtain the service from another health practitioner or from a family planning clinic.
In a case of failed sterilisation an incidental matter concerned a challenge by DSAC (Doctors for Sexual Abuse Care) to an earlier ruling by ACC (Accident Corporation v D) disallowing cover for the cost of an abortion after rape. The Supreme Court judgment reversed the earlier decision affirming that ACC is obliged to pay for the cost of an abortion following rape. See para 11 of the Supreme Court judgment May 2012 Allenby v H.
A long running case started in 2005 between Right to Life NZ and the Abortion Supervisory Committee finally came to a conclusion in an appeal heard by five judges of the Supreme Court. The hearing was on 13 March 2012 and the judgment was released on 9 August 2012. Ken Orr of Right to Life NZ claimed that the ASC was not fulfilling its staturory functions and consequently abortions were being approved in circumstances in which they should not be permitted. The appeal was dismissed by a majority decision 3-2.
On 8 August Minister of Justice Andrew Little introduced the Abortion Legilsation Bill to Parliament and it passed the first reading. It is referred to a special Select Committee which concluded public hearings on 30 October 2019. It will report back to Parliament on 14 February 2020. The proposed Bill makes abortion a health issue, not a crime.
Last Updated: 20 November 2019