Judicial Review — Abortion Supervisory Committee

The hearing of the Judicial Review of the performance of the Abortion Supervisory Committee was heard in the High Court in Wellington on Monday 7th, Tuesday 8th and the morning of Wednesday the 9th of April. Justice Miller presided over the hearing. Right to Life was represented by Peter McKenzie QC of Wellington and Dr Ian Bassett LL.B of Auckland. The Crown was represented by Ms Cheryl Gwyn and Ms Wendy Aldred.

The proceedings for this review were filed in the High Court on 19th May 2005. On the 30th June the Crown filed an application to have our claim struck out as being unnecessary and vexatious. On October 11 Justice Wild struck out two of the six grounds filed in Right to Life’s statement of claim. Our amended statement of claim listed the following issues that we sought relief for:

1. Alleged failure by the defendant, the Abortion Supervisory Committee to properly interpret the Act [Contraception Sterilisation and Abortion Act] to achieve its objective to ensure that full regard is given to the rights of unborn children.

2. Alleged failure by the defendant to perform its statutory duty to review the procedure for the conduct of abortions and determine in any case whether the provisions and procedures set out in the Act are being complied with.

3. Alleged failure by the defendant to enquire into the circumstances in which certifying consultants are authorising the performance of abortions on the mental health ground having regard to the extent to which that ground is used.

4. Alleged failure by the defendant to seek proper information on the mental health ground from certifying consultants.

5. Alleged failure of the defendant to perform its statutory duty or exercise its statutory power to take all reasonable and practical steps to ensure adequate counseling facilities are available [including ensuring that counseling services are independent of the licensed institutions in which they are provided]

Right to Life is also challenging the born alive rule that allows that an unborn child does not become a human being until it is born. We assert that a child is a human being and a person from the moment of conception when it is endowed by its creator with an inalienable right to life.

The basis of the Crown’s defence rested on the judgment of the Court of Appeal in Wall v Livingston, 1982. The Committee’s interpretation was that the judgment prohibited it from enquiring of certifying consultants the reasons for using mental health grounds to authorise 98% of abortions and to hold them accountable for the lawfulness of the abortions they authorised. The basis of the case for the applicant, Right to Life was that the Committee had misinterpreted the judgment.

Right to Life was pleased with the reception that our case had received from Justice Miller. We are looking forward to a positive outcome to these important proceedings. Justice Miller reserved his judgment; he indicated that it could be expected in about four weeks.