The first duty of the state is to protect the right to life of every citizen from conception to natural death. The Royal Commission on Contraception Sterilisation and Abortion in its report to Parliament in 1977 stated; “The unborn child as one of the weakest, the most vulnerable, and most defenceless forms of humanity, should receive protection.” The Commission heard evidence from around the world and accepted that life begins at conception. The Commission said the right to life is a sacred principle of civilisation.” For this reason the Commission stated; “The child from implantation has a status which entitles it to preservation and protection.” In 1977 the government implemented the recommendations of the Royal Commission by passing the Contraception, Sterilisation and Abortion Act [CS &A Act] to regulate the performance of abortion. The Crimes Act was amended to excuse abortions in rare and clearly defined circumstances. It should be recognised that abortion is a serious crime. The Crimes Act, Section 182 Killing of Unborn Child, which was first enacted in 1893, states that it is an offence punishable by up to 14 years imprisonment to cause the death of an unborn child in a manner that would have been murder had the child been born.
It was the intention of Parliament in passing the CS &A Act to provide effective legal protection for the right to life of unborn children and to protect the health and welfare of women. This intention was spelt out in the long title of the Act which states “….to provide for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child” At conception the unborn child is endowed by its Creator with human rights, the foundation right being an inalienable right to life. Sadly the human rights of unborn children have received little regard.
As early as 1988 the Abortion Supervisory Committee in its annual report to Parliament revealed the unlawfulness of many abortions when they alluded to “the current unwieldy system of the termination of potentially normal pregnancies on pseudo legal grounds.” The Committee has frequently advised Parliament in its annual reports that certifying consultants are applying the law more liberally than Parliament intended. On the 5th November, 2000, Dr Christine Forster chairperson of the ASC stated in the Sunday Star Times; “The vast majority, 98% are approved on the grounds that proceeding with the pregnancy would result in serious danger to the mental health of a woman.” Dr Forster said that she did not believe that all these women were in serious danger. The test for the lawfulness of an abortion is the honest belief of the certifying consultant. If the consultant does not genuinely believe in the serious danger to the woman’s mental health then that abortion is unlawful.?
Abortion is violence against a woman and her child. There is increasing evidence that abortion causes serious spiritual, physical, emotional and mental ill health for women. Studies done in America reveal that 64% of women who have an abortion are coerced by the father of the child who refuses to accept responsibility for his child, or by family and
friends. Homicide is the leading cause of death for pregnant women. Surveys also show that 80% of women who have an abortion would not have had one if there had been help available to protect her child in utero. .
It is the duty of both government and Parliament to ensure that the Committee fulfils its statutory duties. Faced with the failure of all three bodies, Right to Life instituted proceedings in June 2005 for a Judicial Review in the High Court of the performance of the Abortion Supervisory Committee. The judgment of Justice Miller was delivered on 9th June 2008.
This important judgment included a number of significant conclusions. Justice Miller stated that;” there is reason to doubt the lawfulness of many abortions authorised by certifying consultants. Indeed the Committee itself has stated that the law is being used more liberally than Parliament intended. In my opinion, the statistics and the Committee’s comments over the years since the Court of Appeal made that observation do give rise to powerful misgivings about the lawfulness of many abortions. The Committee has misinterpreted its functions and powers …The Committee does in fact have the power to require certifying consultants to keep records and report on cases they have considered.” He went on to state; “The law precludes abortion on request abortion as a matter between the woman and her own doctor.”
Right to Life is now seeking declaratory orders from the Court which will spell out clearly the statutory duties that the Committee are required to perform to stop unlawful abortions, and to question consultants on their use of mental health grounds to provide abortion on demand. It will be the Committee’s duty to fulfil those duties. Consultants who do not comply with the law may be dismissed as consultants. It will be the duty of Parliament through regular audits and surveys by the Justice and Electoral select committee to ensure that the ASC fulfils its duties. It is also the duty of the Minister of Justice who is responsible for both the CS &A Act and the Crimes Act to see that the legislation is complied with. The successful implementation of the judgment of Justice Miller will uphold the rule of law and should result in a considerable reduction in the number of abortions in New Zealand. It will herald a new era in the care and protection of mothers and their unborn children.
Right to Life New Zealand Inc.