Is Right 2 Life Case Over?

Is the five-year Right to Life v Abortion Supervisory Committee case finally over?
Maybe. Maybe not. (Again.) In a judgment dated 3 August 2009, Justice Miller declined to issue declaratory orders in the case in which Right to Life NZ was seeking to restrict abortions in NZ.

Followers of the case fully expect the next move to be an appeal to a higher court, and although Ken Orr of Right to Life hasn’t directly stated there will be no appeal, RTL’s response has been muted on that issue. On the RTL Web site, the group said simply this: "Right to Life is confident that the Committee will now comply with its statutory duty to hold certifying consultants accountable for the lawfulness of the abortions that they authorise. This will hopefully herald in a new era in the care and protection of women and for the right to life of unborn children in New Zealand.

On the other side of the coin, Mr. Orr reportedly told Radio NZ's Morning Report this morning that he will be seeking advice on whether or not to appeal.

So far the case has cost the tax payer at least $280,000 and has gone on for five years. For a timeline of the case (which doesn’t yet include this week’s action) click here.

For Radio New Zealand's news story, click here.

For Right to Life's statement click here.

In the 8-page judgment dated Aug. 3, 2009, Justice Miller continues criticism outlined in earlier judgments of the performance of the Abortion Supervisory Committee. For example, he states that:

“The Committee has failed over many years to exercise some of its statutory powers at all, with the result that its supervision of certifying consultants has been substantially less rigorous than the legislature intended. I recognised that the Committee provides consultants with guidance about grounds for abortion and supports continuing medical education. It is not possible to say how many unlawful abortions have been performed as a result of the Committee’s misunderstanding of its functions.”

An important part of the reason Justice Miller appears not to want to issue orders relates to the role of Parliament: “The question whether [certifying] consultants are complying with the abortion law falls to be answered by the Committee, in the first instance, and by
Parliament as the body to which the Committee reports,” the judgment states.

As Right to Life notes, Miller now wants to leave it up to the Abortion Supervisory Committee to act (quoting the Miller judgment):

“The Committee is a public body which accepts that it must give effect
to the judgment, subject of course to an appeal which is still pending. It has begun to
better inform itself about the grounds on which general practitioners refer women to
certifying consultants, and takes steps to inform the consultants of their obligations.
Ms Gwyn accepted that it has not reviewed the performance of certifying consultants
against the statutory criteria in s 187A of the Crimes Act, calling for reports from
them to the extent necessary for that purpose. In my judgment I refused mandatory
relief on a number of grounds, one of which was that there was no reason to suppose
that the Committee will refuse to act now that its functions have been clarified. It
remains the case that the Committee can be expected to administer the law as
Parliament intended, without need of formal orders.”

We will keep the blog updated with any new developments in the case and welcome your comments and analysis.