Saturday, July 12, 2008

Abortion law travesty exposed


The last thing many New Zealanders wanted – politicians especially – was for the abortion debate to break out again.

The agonising conflict over the passage of the Contraception, Sterilisation and Abortion Act in 1977 left many of the combatants on both sides exhausted. The memories are still raw. But abortion is back on the political agenda, and so it should be, because it represents unfinished business.

The CS and A Act was seen as a compromise that granted protection to the unborn child while still allowing women to obtain legal abortions under certain circumstances. Women who had become pregnant as a result of rape or incest, for example, were allowed to obtain abortions, as were women whose life or mental health would have been at risk had they carried their babies to full term.

Those and other specific exceptions aside, abortion remained an offence under the Crimes Act, and still does today.

Parliamentarians and lobbyists who opposed abortion on demand were satisfied that the Act fulfilled their objectives by stipulating that full regard should be had for the rights of the unborn child. But from the very beginning the legislation was subverted by the simple stratagem of approving virtually every request for an abortion on the basis that the mother’s mental health was imperilled.

The number of abortions rose rapidly, from 2094 in the year after the Act was passed to nearly 13,000 by 1994. For the past few years the figure has been hovering around 18,000. Roughly 99 percent of those abortions are authorised on the ground of risk to the mother’s mental health. We have, in effect, a regime of abortion on request – a situation the Act was supposed to avoid.

Meanwhile the Abortion Supervisory Committee, set up to ensure the law was properly observed, looked the other way and wrung its hands impotently. The committee even acknowledged in 1988 that women were obtaining abortions on “pseudo-legal” grounds, but did nothing.

The politicians looked the other way too. Notwithstanding the fact that Parliament’s authority was being mocked, abortion was seen as a no-win issue and quietly dumped in the too-hard basket.

Whether it can remain there is now highly doubtful, since a High Court judge has exposed the administration of the abortion law for the sham and travesty that it is. Ruling on a case brought by the Christchurch-based group Right to Life, Justice Forrest Miller found that there was reason to doubt the lawfulness of many abortions. He agreed that New Zealand effectively has abortion on demand and further, he held that under the law “the unborn child has a claim on the conscience of the community”.

In coming to these findings Justice Miller was not expressing a personal view, but simply doing what judges are required to do: interpreting the laws made by Parliament.

The ensuing debate has shown that there’s a lot of heat in the issue still. On a radio talkback programme I heard a male host – one who normally takes an emphatic liberal-left position – angrily attacked for daring to suggest that Justice Miller was right. The host remained calm and courteous, which was more than could be said for his female callers. It was a reminder of the intensity of the emotion surrounding the issue, and of the refusal of closed minds to engage in reasoned discussion or even allow the legitimacy of an alternative view.

For many surviving feminists from the 1970s, the right to abortion remains a powerful symbol of women’s rights and a hard-won victory that must not be surrendered under any circumstances. They are locked into such a mindset that the supposed right of a woman to control her own body must be asserted at the expense of an unborn child’s right to life. To me this is a desperately cold, arid ideology.

There are fundamental philosophical differences here that I don’t think will ever be reconciled. Either you believe that all human life is precious, and that life logically begins at conception, or you don’t. If you don’t, then you can arbitrarily decree that life begins at any point right through to birth, in which case abortion can be justified even past the time when the foetus is capable of independent life outside the womb. At that point all distinctions between abortion and infanticide evaporate.

Of course, if you’re male you are dismissed as not being entitled to a view on the issue anyway – a preposterous proposition, given that the abortion issue goes to the heart of human morality and concerns us all (just as murder and capital punishment do).

The view that men have no right to an opinion on abortion is only one of several myths that hardline pro-abortionists have pushed quite successfully. They have also persuaded many people to think of the foetus as just a formless blob of tissue, and they have carefully played down both the reality of the abortion process – in which the foetus is violently dismembered – and the serious emotional consequences that many women suffer afterwards.

But I believe that as the passage of time takes its inevitable toll on those impassioned feminists who fought for the right to abortion 30 years ago, community attitudes toward abortion are subtly shifting. A generation has grown up that doesn’t regard women’s right to abortion as some sort of ideological touchstone and may be more receptive to moral and humanitarian arguments against it.

I don’t think I’m being fanciful when I sense growing disquiet about the abortion rate. Even newspapers that once took a strong “pro-choice” line in their editorials now find it unacceptable that the CS and A Act has been so flagrantly disregarded.

It remains to be seen whether Justice Miller – who has yet to decide where to go next with the Right to Life case – will force the politicians’ hands.

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