Re Judicial Review of Abortion Supervisory Committee.
The government has a duty to uphold the rule of law. In the event that the Court of Appeal upholds the judgment of the High Court should your Party be in government at that time it would be appreciated if you would give an assurance that your Party would use its influence to ensure that the Abortion Supervisory Committee complies with the requirements of the judgment of the High Court.
On 9th June, Justice Forrest Miller in the High Court in Wellington delivered his judgment on the Judicial Review of the performance of the Abortion Supervisory Committee.
Right to Life welcomes the judgment of Justice Miller. This is an historic judgment and the most important development in the abortion laws in New Zealand during the previous 30 years. The implementation of this judgment by the Abortion Supervisory Committee should result in a substantial reduction in the number of abortions performed in New Zealand and bring the law back into line with the intentions of the Royal Commission and Parliament. The judgment should herald in a new era of care and protection of women and their unborn children.
The judgment acknowledges that it was the intention of Parliament in 1977 in passing the Contraception Sterilisation and Abortion Act [C S & A Act] to provide effective legal protection for the human rights of unborn children. This intention to provide effective legal protection is enshrined in the long title of the Act which states “…that abortions may be authorised only after full regard is given to the rights of unborn children.” The judge held that the Act creates a “moral claim” by the unborn child “on the conscience of the community and not merely that of the mother through the substantive criteria and procedures prescribed by the Act.”
The judge has acknowledged that we now have in New Zealand an abortion rate comparable to those of Canada and the United States where women have a constitutional right to an abortion. Justice Miller states 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.”
Justice Miller stated that; “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. They tend to confirm Dr Forster’s view that New Zealand essentially has abortion on request.”
The judge has said that “the Abortion Supervisory Committee has misinterpreted its functions and powers under the abortion law reasoning incorrectly that Wall v Livingston precludes the Committee from reviewing or scrutinising decisions of certifying consultants. The Committee does in fact have the power to require certifying consultants to keep records and report on cases they have considered.”
Justice Miller also stated; “The abortion law certainly asserts a state interest in protecting the unborn child and not merely an interest that woman have safe and legal abortions.” “The law precludes abortion on request and abortion as a matter between the woman and her own doctor.”
The judgment seeks to uphold the integrity of the C S & A Act and the law governing the authorisation of abortions found in the Crimes Act 1961. In a Parliamentary democracy it is imperative that the rule of law is maintained and that the will of Parliament expressed in legislation is respected and upheld.
Justice Miller declined to issue mandatory orders to have the Abortion Supervisory Committee comply with its statutory duties as outlined in the judgment. It was his belief that as the Committee was a statutory body answerable to Parliament, it was expected that Parliament would take the necessary action to ensure that the Committee complied with its statutory duties.
On 1st August the Committee advised that an appeal against several of the major findings of the judgment were being appealed to the Court of Appeal. A hearing is expected to be held early in 2009. In the meantime the Committee has a serious legal responsibility to fulfil its statutory duties in accordance with the judgment.
It is noted that both the CS & A Act and the Crimes Act are in the names of the Minister of Justice. The Minister therefore has a responsibility to ensure that these Acts are upheld and implemented correctly.
It would be appreciated if you would oblige by providing your response by 15 October to enable us to advise our members and supporters of your commitment.