The Abortion Legislation Act 2020 is an Act of Parliament in New Zealand allowing unrestricted access to abortion within the first 20 weeks of pregnancy, and repealing sections of the Crimes Act 1961 related to unlawful abortion. After the 20-week period, women seeking an abortion must consult a qualified health practitioner who will assess their physical health, mental health, and well-being. The Act also provides provisions for conscientious objection rights for medical practitioners and exempts abortion services from certain Crimes Act provisions, while extending the definition of health services to include abortion services under the Health and Disability Commissioner Act 1994.[5]
Elective abortion care had been available for several decades in New Zealand before this Act was passed, but women had to maintain a fiction that they were suffering from mental illness in order to get an abortion.[6]
The Act received cross-party support, with members of Parliament from the governing Labour Party, the Green Party, and New Zealand First largely voting in favour of the bill, while members from the opposition National Party were allowed a conscience vote, leading to a substantial majority of 68–51 in its favour at the third reading.
Legislative features
The Abortion Legislation Act decriminalises abortion, aligns the regulation of abortion services with other health services, and modernises the legal framework of abortion provided by the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977 (CSA Act 1977). The Abortion Legislation Act repeals Sections 10 to 46 of the CSA Act 1977 including the Abortion Supervisory Committee (Section 10), the requirement that abortions need to be certified by two certifying consultants (Section 29), and the ban on women unlawfully procuring a miscarriage (Section 44). Under the Abortion Legislation Act, women can seek an abortion without restrictions within the first 20 weeks of their pregnancy. After the 20 week period, women seeking an abortion must consult a qualified health practitioner who will assess the patient's physical health, mental health, and well-being.[5]
The Act also requires medical practitioners who have a conscientious objection to performing abortions to inform their patients at the earliest opportunity and to provide them with information on how to access the closest abortion services. The Act also contains provisions for protecting the rights of conscientious objecting medical professionals from discrimination and termination.[5]
The Abortion Legislation Act also amends section 182 of the Crimes Act (killing an unborn child) to exempt abortion services within the provisions of the CSA Act. The Act also repeals Sections 183 to 187A of the Crimes Act including the 14 year prison term for any persons with the exception of the woman or girl seeking to unlawfully procure abortion (section 183); a seven year prison term for persons who unlawfully provide the means of procuring an abortion (section 186), and seeking an abortion illegally before or after the 20 week gestation period (section 187). The Abortion Legislation Act replaces these sections with section 183 (clause 12) which makes it an offense for a person who is not a health practitioner to procure or perform an abortion for a woman.[5]
Before the Abortion Legislation Act 2020, abortion was only decriminalised in New Zealand on certain grounds: to preserve the life of the woman (even if after 20 weeks), to preserve the physical health of the woman, to preserve the mental health of the woman, foetal impairment, and in cases of incest. The abortion also had to be authorised by two certifying consultants.
In practice, the law was interpreted liberally,[7] and the system in effect operated as elective abortion,[8][9] with one in four women in New Zealand having had an abortion in her lifetime.[10] Almost all women had their abortion approved under the mental health ground. Politician David Seymour called the law a "charade" and commented "nobody believes that 97 per cent of women who have abortions are mentally ill"; while journalist Mark Sainsbury commented "the patients, the doctors, the politicians, just to play their part and, nod nod wink wink, it gets done".[11]
Background
Andrew Little, the sponsor of the Abortion Legislation Act
On 5 August 2019, the Minister of JusticeAndrew Little announced that the Labour-led coalition government would be introducing new legislation to decriminalise abortion and to allow women unrestricted access to abortion within the 20 week gestation period. The New Zealand Law Commission had proposed three options for abortion reform: having no statutory test to make sure the abortion was appropriate at any point; taking abortion off the Crimes Act but having a statutory test; or only having a test for later-term abortions, after 22 weeks. The Government adopted the third approach but reduced it to 20 weeks.[12][13][14][15] While abortion-rights groups like the Abortion Law Reform Association of New Zealand (ALRANZ) and Family Planning have welcomed the proposed changes but criticized the 20 week limit, the Government's proposed abortion law reform was opposed by the conservative lobby group Family First New Zealand.[13][16]
According to media reports, the ruling Labour Party and its coalition partner New Zealand First conducted months of negotiations on the proposed Abortion Legislation Bill. New Zealand First Member of Parliament and Minister of Children Tracey Martin, a supporter of abortion reform, played an active role in the negotiations. On 6 August 2019, NZ First leader and Deputy Prime MinisterWinston Peters surprised both Martin and Labour by demanding a binding referendum on the Abortion Legislation Bill. The NZ First parliamentary caucus voted by a majority to support their leader's calls for a referendum. In response, Justice Minister Andrew Little ruled out support for a binding referendum on abortion, claiming that it had not been discussed during the negotiations. NZ First subsequently confirmed that it would support the Abortion Legislation Bill through its first and second readings while pushing for a referendum.[17][18][19][20]
The opposition National Party leader Simon Bridges voiced his support for abortion reform but stated that more safeguards were needed. Voting for the Abortion Legislation Bill was conducted by a conscience vote, allowing MPs to vote individually on the bill.[21] Opposition National MP Amy Adams criticized NZ First's call for a referendum, saying that the matter should be decided by Parliament.[18]
First reading
On 8 August 2019, the New Zealand Parliament debated the Abortion Legislation Act for the first time. Several MPs commented that it is wrong that women had to lie to their doctors about their mental health in order to get an abortion under the existing law.[22][23]
The bill passed by 94 votes against 23. It was then referred to the select committee stage.[24] Three National Party MPs were absent from the vote: Alfred Ngaro was overseas but had sent a proxy vote against the bill that was not cast; Hamish Walker had voted for the Bill but his vote was discounted under Parliament's rules because he had left the Debating Chamber before the votes were counted; and Jian Yang who had missed the vote, having intended to vote in favour.[25]
Ruth Dyson, Chairperson of the Abortion Legislation Committee
Submissions for the Abortion Legislation Bill were held until 19 September 2019. Labour MP Ruth Dyson was designated Chairperson of the Abortion Legislation Committee.[26] Other Committee members have included Green MP Jan Logie, Labour MPs Priyanca Radhakrishnan and Anahila Kanongata'a-Suisuiki, and National MPs Nikki Kaye and Agnes Loheni.[27] By 9 October 2019, the Abortion Legislation Committee had received 25,000 written submissions from a range of legal and medical experts, religious groups, national organisations and ordinary people sharing personal experiences including Dr Alison Knowles, the Mental Health Foundation, and Family First. Due to the large volume, the Committee confirmed that it would be hearing 150 oral submissions out of the 2,890 who had opted to speak. Family First national director Bob McCoskrie criticized the select committee for excluding certain voices and rushing the process. In response, Dyson reiterated the committee's commitment to hearing a range of perspectives while remarking that "hearing the same thing over and over again doesn't add value to the committee at all." Submissions were held in Auckland on 8 October and scheduled for Christchurch on 11 October and Wellington on 15 October.[27][28]
In 14 February 2020, the Select Committee delivered its report which called for safeguards to address sex selection, late-term abortions and to remove some barriers for women seeking abortions. Another recommendation was requiring a health professional approving abortion after 20 weeks to consult at least one other health professional before authorising an abortion. The definition for consultation was also widened to include Registered Nurses as well and qualified medical practitioners.[29][30][31] In addition, Loheni published a minority report criticizing the bill for what she regarded as a lack of safeguards on foetal abnormalities and late-term abortions. ACT New Zealand leader David Seymour supported the Select Committee's recommendations but argued that safe zones infringed on freedom of expression.[29]
The New Zealand Medical Association welcomed the changes while Catholic bishops have claimed that the legislation infringes upon the legal rights of unborn children and threatens unborn babies with a fetal disability.[32][33] Select Committee member Agnes Loheni, who was opposed to the legislation, proposed a supplementary order paper which would return the post 20 week criteria for abortion to where it currently stands under the Crimes Act.[34]
ACT Leader David Seymour, successfully moved a motion eliminating "safe zones" from the Act.
The Committee of the Whole House stage began on 10 March 2020. On the first day of debate on Part 1, parliamentarians narrowly rejected, by 56–59, the first part of David Seymour's amendment to scrap "safe zones" from the Act. However, the second part of Seymour's amendment, which effectively scrapped the proposed "safe zones", was passed during a voting mix-up (but re-addressed in a later law, see § Safe access zone legislation). Parliament also adopted an amendment by Ruth Dyson dealing with conscientious objectors. In addition, Parliament considered but rejected several amendments including:
Green Co-Leader Marama Davidson's amendment reducing penalties around safe zones and removing political involvement in their setting up (21–96);
An amendment to remove all statutory tests for abortions up to birth (12–106);
A supplementary order paper by National MP Parmjeet Parmar aiming to prevent gender-selective abortions failed; and
An amendment by National MP Simon O'Connor requiring medical intervention of unintended live births after attempted termination (37–80).[41][42][43]
On 18 March, parliamentarians voted against holding a referendum on the abortion law changes by margin of 100 to 19. New Zealand First had proposed a referendum on the changes in return for supporting the passage of the legislation through Parliament.[44][45][46]
Third reading
On the evening of 18 March, the Abortion Legislation Act passed its third reading by a margin of 68 to 51. Green MP Marama Davidson attempted to reverse David Seymour's amendment eliminating safe zones around abortion clinics but MPs voted by a margin 77 to 43 against it. During the final reading, the bill's initiator Justice Minister Little argued that it would make significant changes to the country's abortion framework by eliminating abortion from the Crimes Act. Parliamentary Under-Secretary to the Justice Minister, Jan Logie, hailed the bill's passage as a victory for women having the freedom to make decisions about having a child. Abortion Legislation Committee's chair Ruth Dyson and National MP Amy Adams welcomed the bill's passage as long overdue for women's rights but expressed disappointment at the elimination of the safe zones around abortion clinics.[47][48][49][4]
During the final reading, Labour List MP Kieran McAnulty spoke about his Catholic faith and being adopted as a child but supported women's reproductive rights. ACT Leader David Seymour expressed support for women's reproductive rights and eliminating abortion from the Crimes Act but defended his amendment to eliminate safe zones. Labour MP Marja Lubeck said that abortion was not a decision that women made lightly, describing the previous legislation as "archaic."[48][4]
Several MPs opposed to the Abortion Legislation Act also made speeches during the final reading. National MP Agnes Loheni, a member of the Abortion Legislation Committee, described the bill as an "attack on our humanity." She highlighted the fact that 91.6% of the 25,000 submissions had opposed the bill.[48][47][49][4] Labour MP Greg O'Connor expressed concerns that the Bill's Section 11 did not do enough to protect disabled infants while talking about his experiences as the father of a disabled child. National MP Simon O'Connor claimed that the bill did not afford rights and dignity to unborn children. Fellow National MP Andrew Bayly expressed concerns that the bill would allow minors to seek abortions without the knowledge of their parents and guardians. National MP Chris Penk disputed assertions that the previous abortion legislation criminalised women and claimed that the new bill would deny unborn children the right of protection under the law.[48]
On 10 March 2021, a private members bill, the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill was introduced into the New Zealand Parliament. Its purpose is to create safe areas around abortion facilities, on a case-by-case basis, "to protect the safety and well-being, and respect the privacy and dignity, of women accessing abortion facilities and practitioners providing and assisting with abortion services".
On 16 March 2022, the Safe Areas Amendment Act passed into law by a margin of 108 to 12 votes. It received royal assent on 18 March. The Bill creates safe spaces of no more than 150 metres around abortion providers. It also bans obstructing, filming in an intimidating manner, dissuading or protesting against those trying to access abortion services in those zones.[51]
^McCulloch, A.; Weatherall, Ann (1 January 2017). "The fragility of de facto abortion on demand in New Zealand Aotearoa". Open Access Te Herenga Waka-Victoria University of Wellington. doi:10.26686/wgtn.14343974.v1. hdl:10547/625725.
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