Victory in RTL v ASC Case (and 'informed consent')

Victory in RTL v ASC Case (this relates to 'informed consent' how...?)

There was big news on 1 June in the long-running Right to Life v. ASC Case with the long-awaited (since October 2010) ruling from the Supreme Court. ALRANZ issued a statement about the case  applauding the ruilng which is essentially a victory for continued access to abortion care in New Zealand. (In other words, it helps keep our bad law going some way to serving the needs of women by maintaining the status quo.) 

If you hop on over to ALRANZ's main Web site, there you can get hold of a pdf of the really helpful summary the Court itself put out on this judgment. The court rejected RTL's cross appeal aimed at showing the fetus has a right to life under New Zealand and International law (if successful, this would have essentially outlawed abortion) and rejected an earlier ruling by Justice Miller that the ASC can review Certifying Consultants' decisions (under NZ law, 2 certifying consultants must approve each abortion). The ruling also rejected Miller's controversial claim in 2008 in which he raised doubt about the lawfulness of many abortions in New Zealand. (ALRANZ wrote an in-depth outline of where the case was at last October which you can read here.)

The summary of the 1 June judgment says this:

Justice Stevens said: “we are satisfied that the findings as to lawfulness of the decision making of the certifying consultants or judicial comment about New Zealand having abortion „on request‟ ought not to have been made in the circumstances of this case. We conclude that they are of no lawful effect.”

And RTL was ordered to pay costs.

So far, there's no word on whether or not RTL will appeal to the Supreme Court. However, those appeals are not automatic in that the court must grant permission for an appeal to proceed.

This relates to informed consent how....?

First out of the gate from those opposed to reproductive rights appears to have been Family First, which used the result to link back to one of its two polls that it's been promoting lately -- this time the poll on "informed consent".

(The other target on their agenda is teenagers' access to abortion care, i.e. parental notification.)

Somehow, the Abortion Supervisory Committee's victory means New Zealand women need to be fully informed about the medical risks of abortion, says FF.  Of course what pro and anti choice people mean by "informed consent" does tend to vary. For pro-choicers it does  not mean mandatory and medically unnecessary ultrasounds, waiting periods, medically incorrect "facts" and so on.

The tactics of those opposed to reproductive rights are clear in both this "poll" and that on parental notification: try to find support for incremental restrictions on abortion that are disguised as caring about women and families. Because trying to ban abortion outright won't be very popular.

As for informed consent in particular, it's worth pointing out that what FF is asking for, WE ALREADY HAVE.

Following are excerpts from a letter a group of pro-choichers wrote to Curia Market Research over the Family First poll that outlines all the informed consent protections already in our law:

******

We are writing to express our concern at the wording of a recent opinion survey carried out for Family First New Zealand.

According to Family First’s media release, the question asked in the poll was:

“Would you support a law that would require a woman considering an abortion to first see a doctor, who is not an abortion provider, to be informed of the medical risks and alternatives to abortion?”

Our first concern is that the survey question suggests that there is currently no requirement for patients, in particular those considering abortions, to be informed of medical risks and other issues surrounding abortion.

Among other requirements, abortion is covered by the Code of Health and Disability Services Consumer Rights Regulations 1996, the Health and Disability Commissioner Act 1994, as well as the Medical Council guidelines for good medical practice (currently the abortion sections are being litigated by a group of anti-abortion health-care professionals). Another guideline specifically covering abortion was issued by the Abortion Supervisory Committee in 2009, and is titled “Standards of care for women requesting induced abortion in New Zealand.”

Here, we’ll just cite one example from these codes that directly addresses the survey question, and that is Right 6 of the Code of Health and Disability Services Consumer Rights Regulations 1996, titled “Right to be Fully Informed”. It includes the right to “an explanation of the options available, including an assessment of the expected risks, side effects, benefits, and costs of each option.” Right 7, “Right to make an informed choice and give informed consent,” also clearly applies. The 2009 Abortion Supervisory Committee guidelines specifically direct physicians to conform to this and the 1994 Act.

Simply put, a (presumably new) law for which the survey question appears to seek support already exists, and in myriad forms.

A second concern is that the question suggests that the first doctor a woman sees is an abortion provider. This is not the case. In most cases, the first doctor the woman sees is not an abortion provider, but her own GP or perhaps a Family Planning doctor. She then must get approval for an abortion from two certifying consultants under the grounds set out in the Crimes Act.  

Naturally, the conclusions drawn by Family First from this survey, which we believe reach well beyond the results (for example that a proposed “informed consent” law should mandate the use of ultrasound scans), are not matters over which the polling company has control, so we have not addressed those here.

But because of the two concerns discussed above, we believe the survey was potentially misleading and likely to perpetuate myths about abortion care.

From a group of pro-choice people and organisations including:

Abortion Law Reform Association of New Zealand (ALRANZ), Mothers for Choice, Women’s National Abortion Action Campaign (WONAAC)