Right to Life v ASC

The long-running Right to Life v. Abortion Supervisory Committee case is set to continue. This time, according to the Right to Life Web site, it is the ASC doing the appealing – against Justice Miller’s most recent judgment, dated 3 August, 2009, in which he declined to make declarations but continued to hold that some abortions performed in New Zealand have been unlawful and that the Abortion Supervisory 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.” 

In declining orders, Miller argued that “now that its [ASC] functions have been clarified” the committee  “can be expected to administer the law as Parliament intended, without need of formal orders.”

Followers of the case waited with bated breath to see whether or not RTL would, as has been its habit to date, appeal the judgment.  Instead, RTL simply reported that it was “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."

So this time, it’s the ASC’s turn. According to the RTL site, the ASC is appealing against “several important findings of the judgment of the High Court” and that the hearing is likely to be in the first half of 2010. We are unclear just what those “important findings” are, but speculate they may well include those mentioned above regarding the unlawfulness of abortions, the failure of the ASC to exercise its powers and what Miller called its “misunderstanding” of its statutory functions.

Meanwhile, however, Right to Life plans to use the opportunity of the ASC move to cross appeal, and again seek “legal recognition of the unborn child from conception as a human being, endowed by its creator with human rights and entitled to the protection of the New Zealand Bill of Rights.”

Yes, this is where RTL seeks to have outlawed not just all abortions, but some forms of contraception, IVF, etc. Anything, in other words, that might, er, conceivably interfere with a fertilised egg, even before implantation (i.e. before detectable pregnancy).

Attributing personhood to fertilised eggs has become a popular campaign by anti-abortion advocates in the United States. Those of us even vaguely interested in women’s rights and reproductive justice know what it would mean for women if such a position were ever enshrined in the law: No rights. No justice.

So far, however, this aspect of the Right to Life case has been rejected, including by Justice Miller in his June 2008 judgment, in which he found:

“The abortion law neither confers nor recognises a legal right to life for the unborn child;  that is so because the abortion law imposes no duty on the mother, or any other actor in the abortion process, to protect the life of the unborn child and does not recognise a child as a person until it is born alive.  Nor does s8 of the New Zealand Bill of Rights Act 1990, which recognises a right to life, apply to the unborn child.”

Right to Life argues that this “is the justice issue of our era,” and goes on to say that “The Royal Commission on Contraception, Sterilisation and Abortion, in its report to Parliament in 1977, stated that ‘the unborn child as one of the weakest and most vulnerable forms of humanity should receive protection.’”

Interestingly, the chairman of the Royal Commission seems to have a very different interpretation than that attributed to it by Right to Life. In a memoir published last year, the Rt. Hon. Sir Duncan McMullin had this to say about the commission’s work:

"In answer to the criticism of the liberals, I would say that once abortion on the ground of mental health of the mother is allowed (which was what we did), abortion as of right can quickly follow.”

And:

"The law as we recommended it is the law today although there has been talk of reopening the debate. I think that it is better to leave things as they are where by woman who needs an abortion and remotely meets the criteria can get one while, at the same time, recognition is given to the fact that the unborn child represents a human being in the making."

McMullin also comments: “I always thought that under our formula, there might be 5,000 abortions a year. I never anticipated that there would be as many as 17,934 (2006)."

For a timeline of the case, click here and also read the latest Alranz newsletter here.