Date: Mon, 5 Dec 2005

From: "REPROHEALTHLAW-L : Reproductive and Sexual Health Law Programme"
Subject: Judicial Review of Abortion Regulations in New Zealand
Many thanks to Joanna Erdman for writing the following case commentary:
Right to Life New Zealand Incorporated v. Rothwell et al. (2005)
An October 2005 decision by the New Zealand High Court explores the implications of the under-enforcement of abortion regulations. More specifically, the decision addresses the disconnection between the formal legal regulation of abortion services and the permissively liberal or unrestricted interpretation of such regulations that allow for broad practical access to abortion services. What are the consequences of the under-enforcement of law rather than its reform?
The following is a brief overview of the abortion law in New Zealand, and the High Court’s decision in Right to Life New Zealand Incorporated v. Rothwell, Reid and Lamb (Members of the ASC) and the Attorney-General, CIV 2005 485 999 [11 October 2005]
In New Zealand, abortion is permitted during the first 20 weeks of pregnancy in the following circumstances: (a) serious danger to the woman’s life, or physical or mental health, (b) serious fetal abnormality, (c) incest or sexual relations with a guardian, or (d) the woman is severely mentally “subnormal”. While both the woman’s age and sexual violence do not constitute grounds in themselves, these factors can be considered in the determination of risks to life or health. After 20 weeks of pregnancy, abortion is permitted only when necessary to save the women’s life or prevent serious permanent injury to her physical or mental health (Crimes Act 1961, as amended).
In 1977, the New Zealand Government enacted the Contraception, Sterilization, and Abortion Act of 1977 (“CSA Act”). The Act established the procedures that a woman must follow in order to qualify for an abortion. Most importantly, the woman must obtain the approval of two consultants certifying that legal grounds exist for the performance of the abortion. The act also establishes a statutory body, the Abortion Supervisory Committee (“ASC”) to supervise the operation of the Act in practice (the availability and quality of abortion services).
On May 13, 2005, the Right to Life Group in New Zealand (“RTL”) filed a claim against the ASC seeking judicial review of the Committee’s discharge of its statutory functions. RTL claims that the ASC is not fulfilling its statutory duties as set out in the CSA Act and has failed to hold certifying consultants accountable for the lawfulness of their certifications. On June 20, 2005, the ASC applied for orders striking out or dismissing the proceeding. The application was heard in the High Court on September 8, 2005 by Mr. Justice Wild. His judgment was released on October 11, 2005.
At the outset of the judgment, Justice Wild concluded that it is not untenable for RTL to argue that the unborn have some rights enforceable under New Zealand law, including, perhaps primarily, the right to be born, unless the mother’s pregnancy is terminated in accordance with the provisions of the CSA Act. The proceeding could therefore not be struck out on this basis. Justice Wild stated that he sees “force in the plaintiff’s submission that, by properly discharging [its] functions, the Committee is effectively but … indirectly, protecting the rights of the unborn child. At the same time it is protecting the rights of women to have an abortion performed in accordance with the CSA Act.” Moreover, Justice Wild held that it remains undecided whether the protection of life under the New Zealand Bill of Rights Act 1990 extends to the unborn. Therefore, while the plaintiff’s argument with respect to the enforceable rights of the unborn may prove difficult in light of developments in comparative and international law as well as domestic politics, Justice Wild held that “it is not hopeless, with the consequence that this Court should be spared the inevitability of ruling against it.”
Justice Wild next considered the extent to which judicial review, at the instance of RTL (a “concerned person”), is available to enforce the rights of the unborn?
RTL first argued that the Committee wrongly interpreted the CSA Act as providing no mechanism for the protection of the unborn and as giving the Committee “no control or authority or oversight in respect of the individual decisions of certifying consultants”. On the basis of the Court of Appeal decision in Wall v Livingston, Justice Wild held that RTL erred in fixing both the Committee and certifying consultants “with an obligation to have ‘full regard to the rights of the unborn child’. The CSA Act imposes no such duty.” Only indirectly, through the provisions of the Act itself, are the rights of the unborn protected. Justice Wild thus confirmed that “[t]he sole concern of a certifying consultant is whether the mother qualifies in terms of the Act for an abortion. Only in that indirect way does the consultant have any concern for the unborn child.”
Nevertheless, Justice Wild did hold as tenable RTL’s broader claim that the Committee had wrongly interpreted the CSA Act as providing it with no authority to change or effect the practical operation of the law. Under the Act, the ASC is required to “take all reasonable and practicable steps to ensure that the administration of the abortion law is consistent throughout New Zealand, and to ensure the effective operation of this Act and the procedures thereunder.” The ASC had reported for a number of years that procedures outlined in the CSA Act were “too complex and are not being followed as the law intended. Its provisions for providing legal, safe abortions are not being consistently applied throughout the country.” In 2000, the New Zealand Herald reported that the ASC chairwoman expressed disappointment that the Government was unwilling to reform the law. She said that abortion was already essentially available on demand and it was time to be more honest by reflecting that fact in legislative changes. Justice Wild held that given these reported findings, “it is at least arguable that the ASC is not discharging” its statutory functions.
While RTL’s first ground for review emphasized the ASC’s wrongful interpretation of the CSA Act, its second ground for review focused on the Committee’s exercise or, more strictly, its alleged failure-- to exercise, its statutory functions, discretions and powers. Justice Wild explained that the two grounds are related in so far as the ASC misunderstands its task under the CSA Act and (perhaps as a consequence) has failed and is failing to properly exercise them. For the reasons described above, namely the Committee’s knowledge and acceptance that the CSA Act is not operating as intended, Justice Wild held that it is reasonably arguable that the Committee is not properly discharging its statutory functions to review the procedure for the conduct of abortions and to determine in any case whether the performance of an abortion is justified.
Other permissible grounds for judicial review included whether the ASC was seeking proper information from certifying consultants on mental health grounds, and whether there was access to sufficient and adequate counselling for women considering abortion. Justice Wild also struck out several of RTL’s claims, including claims regarding the ASC’s failure to seek the opinion of the High Court as to interpretation of the CSA Act, and the ASC’s failure to prevent the practice of women making appointments for the performance of abortions before receiving the consultants’ certification.
Justice Wild was sympathetic to RTL’s claims insofar as he recognized that its efforts to have “the Committee and … Parliament … act upon its concerns have been to no avail.” The Court further noted that the material before the Court “demonstrates Parliament’s unwillingness to change the law. In short, the plaintiff has had both ‘the run around’ and has hit a brick wall.” Justice Wild held, however, that the major difficulty with RTL’s claim was the framing a remedy that in any practical way could alter the current operation of the CSA Act, given the political reality and the Court of Appeal’s comments in Wall v. Livingstone, namely that the ASC has no authority to intervene with the individual decisions of certifying consultants. He thus invited RTL to “stand back and ask itself: Realistically, just what can we achieve with this proceeding?”