The abortion law travesty

Justice Forrest Miller’s decision in the abortion case brought by Christchurch-based group Right to Life seems to confirm what has been blindingly obvious for decades – namely, that the Contraception, Sterilisation and Abortion Act, or more specifically the application of it, is a travesty.

When Parliament passed the Act in 1977 after a long and agonised debate, the intention was that the rights of the mother would be balanced against those of the unborn child. MPs opposed to abortion didn’t want abortion on request and were satisfied they had achieved that goal.

But the legislation was quickly subverted. The counselling and certifying process that women were required to undergo before having an abortion became, in effect, a rubber stamp. Meanwhile the Abortion Supervisory Committee, created to ensure the Act worked as intended, looked the other way. The committee even admitted, in a breathtaking admission of its own failure, that thousands of women obtained abortions on “pseudo-legal” grounds – a reference to the ease with which women qualify on the grounds of risk to their mental health.

Under the sham certifying and counselling procedure, the abortion rate steadily increased year after year. From 2094 abortions in 1978, the first year after the Act was passed, the number rose inexorably and now stands at about 18,000.

Now Justice Miller, in the High Court, has said the statistics “give rise to powerful misgivings about the lawfulness of many abortions”. He notes that 98 percent of abortions are carried out on mental health grounds (actually 98.9 percent, according to the Abortion Supervisory Committee’s 2007 report) and that some certifying consultants approve every request – hardly what Parliament envisaged 30 years ago.

The painful irony here is that the Professor David Ferguson’s Christchurch Health and Development Study, which has tracked 1265 children born in Christchurch from 1977, found that at age 25, 42 percent of the post-abortive women in the study had experienced major depression in the past four years. The study, carried out by a respected academic who says he’s “pro-choice”, concluded that abortion might actually lead to a higher risk of mental illness among younger women.

Justice Miller’s judgment is a very significant victory for the anti-abortion movement, though at this stage it’s hard to know where it will lead. The judge seems to be proceeding cautiously – not surprisingly, given that it’s political dynamite – and has called for further submissions before he makes any declaration.

Anti- and pro-abortion groups agree on at least one thing. Both say the law, as it has been applied, is a farce, though their reasoning is very different. Pro-abortion groups say it’s absurd that women should have to jump through a series of legal hoops to get what they believe is their right. Anti-abortion activists say it’s farcical that Parliament should pass a law aimed at protecting the unborn child and then allow it to be flagrantly disregarded. I’m in the latter camp.

Both groups would like Parliament to revisit the abortion law, but with diametrically opposed aims in mind. And both probably agree on one other point: that few if any politicians will want this ugly, no-win issue to rear up again, least of all in election year. Like the Abortion Supervisory Committee, MPs have been looking the other way – even though it’s Parliament that is being mocked.