Functional as the Enemy of Fair: Seizing the Moment for Rights-Based Abortion Reform in Aotearoa

by | Jul 21, 2021

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About Stephanie Slader and Kelle Howson

Stephanie Slader is a Researcher in the Labour Leader’s Office, New Zealand Parliament. This was written in a personal capacity. Dr Kelle Howson is a postdoctoral researcher on the Fairwork project. She is a development geographer interested in how ethical certification is reshaping governance and power relations in global networks.

Aotearoa New Zealand is often cited (with varying degrees of romanticism) as a light of liberal progressivism. It is therefore perhaps surprising that a legal framework which criminalised abortion endured in Aotearoa until 2020.

Prior to 2020, abortion was relatively accessible within Aotearoa’s health system. Between 1980 and 2019, on average, 15.2 per thousand people were accessing safe abortion services each year due to the increasingly liberal regime that had taken root beneath the country’s restrictive legislation. While abortion remained a crime, and its provision carried degrading conditionalities, the uneasy status quo of widespread access to abortion served to suppress pressure for change.

Abortion was previously governed by the Crimes Act 1961, and the Contraception, Sterilisation and Abortion Act 1977.These required those seeking abortions to gain the approval of two consultants, under a limited set of grounds.

This framework was restrictive by design. Despite a new era of pro-choice feminism sweeping the country in the 1970s, with the Women’s Liberation Movement revolutionising ideas around reproductive rights, the long period of conservatism that preceded it remained deeply entrenched in Aotearoa’s overwhelmingly male House of Representatives.

The abortion rights struggle entered a new phase following the 1977 legislation. While there was an initial spike in activism, the issue fell from the headlines and the fierce conflict that had characterised the decade came to a close. Those left fighting for people to have the freedom to control their own reproductive lives were forced to refocus their attention on new legal tussles.

Challenges to the new abortion regime were relentless, particularly as, over time, tension grew between the statute on the books and the more liberal interpretation taken in clinics. Injunctions were sought to stop abortion procedures from going ahead, the validity of abortion licences were challenged, as was the lawfulness of abortion approvals.

In 1982, Wall v Livingston became pivotal in securing access to abortion services. Wall, a pro-life paediatrician, sought a review of the decision to authorise an abortion for a 15-year-old girl, arguing that the consultants had acted in bad faith. Wall’s claim was dismissed and despite continued challenges, the case protected the independence of certifying consultants to make decisions without interference.

With access to abortion services relatively secure following the 1982 decision – and a subsequent Supreme Court ruling in 2012 on the Abortion Supervisory Committee’s powers – many were reluctant to push for legislative improvements, concerned that previous advances might be clawed back.

While the situation was unquestionably better than it could be, the framework itself remained punitive and paternalistic. Abortions were only permissible on the grounds of considerable danger to a woman’s mental health or to her life. By 2012, 98 percent of  abortions were being approved under the ‘mental health’ grounds in the Crimes Act.

In 2017, following a briefing by the Abortion Supervisory Committee, abortion law reform appeared back in public debate. This coincided with the 2017 election which witnessed a political shakeup, following a near-decade of centre-right neoliberalism. Although the Committee had called for modest changes to modernise the legislation’s language, it became apparent that public opinion had shifted and so had political appetite for progressive change, with Labour Leader Jacinda Ardern pledging to decriminalise abortion if elected.

Three years later, in what many hope is the conclusion of Aotearoa’s contentious abortion rights struggle, under Ardern – now our Prime Minister – the Abortion Legislation Bill was passed, bringing in a legal framework that treats abortion as a health issue.

This was an overdue step towards safe and equitable reproductive healthcare, and a symbolic victory for pregnant persons who are no longer forced to choose between committing a crime or the indignity of being forced to attest, truly or falsely, to the deleterious impact of having a child on their mental health.

There is a sense that this reform would have happened sooner or later, with pro-choice activism gaining momentum. However, the general functional availability of abortion services had long served as a bastion against fair liberalisation and the status quo could quite easily have persisted for much longer.

Aotearoa’s abortion law reform, then, can be considered deeply connected to the moment surrounding Ardern’s election and the feminist momentum that accompanied it. But it should also be directly credited to decades of grassroots campaigning for reproductive rights which made it possible for the political moment to be seized.

This post forms part of the Abortion Law Reform 2020: Where, How and Why blog series. 

 

 

 

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