Right to Life welcomes the judgment of the Supreme Court released on 9 August. The judgment declined the appeal of Right to Life by three to two, it however:
· Affirms the duty of the Abortion Supervisory to enquire from certifying consultants how they were approaching their decision making in general.
· The Court noted that the Committee had the power to revoke the appointment of certifying consultants where enquiries the Committee makes lead it to believe that consultants are holding views incompatible with the tenor of the Act. The Committee may refer to the Health and Disability Commissioner or the medical disciplinary authorities, the case of a consultant authorising abortions inconsistent with the abortion law.
Right to Life, is however, disappointed that the Supreme Court dismissed the first grounds of our appeal of the judgment of the Court of Appeal. This ground sought recognition that the Committee had the power to review or scrutinise the decisions of certifying consultants and form its own view about the lawfulness of their decisions to the extent necessary to perform its functions.
Right to Life notes that 98 per cent of abortions are authorised on the grounds of mental health. Right to Life also notes that a previous chairperson of the Abortion Supervisory Committee, stated in a national newspaper in 2000 that she did not believe that all these women were suffering from mental ill health and that consultants were using mental health grounds to provide abortion on demand.
This is an unprecedented judgment. It now places certifying consultants on notice that the Committee has power to make generalized inquiries into the way they are carrying out their functions. The judgment also informs the Committee that they were mistaken in believing that they had no statutory duty or power to make these enquires.
Right to Life expects that with the implementation of this judgment that:
· It should place restraints on the abortion on demand regime that prevails in New Zealand.
· It advances the human rights of unborn children in receiving the full protection of the law.
· It advances protection for the health and welfare of women from the violence of abortion.
The Supreme Court found that Justice Miller in the High Court, “did not go too far when he appeared to question the lawfulness of abortions authorised by certifying consultants. To a large extent he was repeating or paraphrasing remarks already made by the Committee itself in its reports to Parliament.” Justice Miller had said in his judgment, “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.”
Unborn children are the weakest and most defenceless members of the human family. Right to Life is confident that the government will ensure that women and their unborn will receive the full protection of the law afforded by this judgment.
This judgment is a positive step towards Right to Life’s objective of the legal recognition, that from the moment of conception every human being is endowed with human rights, the foundation right being the right to life. These rights are inalienable and universal. From conception, the new human being should be accorded the respect and protection due to the person. Abortion is violence against women and their unborn, it is an unspeakable crime and a violation of the human rights of the mother and her unborn child. This is the justice issue of our era.
The Supreme Court comprised, Justice Elias presiding with Justices Blanchard, Tipping, McGrath and Young. Justices Young and McGrath gave a strong dissenting opinion to that delivered by the majority. The Justices said that they disagreed with the conclusions of the majority and upheld the submission of Right to Life. The strong opinion of the dissenting Justices recognises the substantial case presented to the Court by Right to Life and fully vindicates our Society in bringing these matters to the Court. Right to Life is most grateful to our counsel, Peter McKenzie QC, NZOM, Dr Ian Bassett Llb,Hons, LLM [Cambridge] and Miss Rachael Wong, for their commitment and dedication in representing our Society in the High Court, the Court of Appeal and finally in the Supreme Court.
These proceedings commenced in the High Court in Wellington in May 2005. Our Society is also most grateful to our members and supporters who have generously funded these important legal proceedings. The total cost of these proceedings for our Society was $119,000. The legal costs incurred by the Crown were nearly $280,000 which does not include the costs for the Crown’s appearance in the Supreme Court. It is now expected that the Ministry of Justice or the Crown Law Office will do a careful analysis of the judgment to establish the new and full statutory responsibilities of the Abortion Supervisory Committee [ASC] and certifying consultants. This document will then be submitted to the Committee for its implementation.
The Committee is subject to regular review by the Parliamentary Justice and Electoral Select Committee and it is expected that this Committee will ensure that the ASC complies with the requirements of the judgment. Right to Life is committed to ensuring that the ASC holds certifying consultants accountable for the lawfulness of the abortions that they authorise.