New Zealand Parliament Pāremata Aotearoa
Language
Language

Digest No. 2599

( Hon Andrew Little)

Date of Introduction: 5 August 2019
Portfolio: Justice
Select Committee: As at 7 August, 1st reading not held
Published: 7 August 2019by Katrina Melville LLB (Hons) Caution: This Digest was written to help consideration of the bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the bill. Other sources should be consulted to determine the subsequent official status of the bill.

Purpose

“This is an omnibus Bill introduced under Standing Order 263(a). The amendments in the Bill all relate to abortion and implement a single broad policy...”

The Bill amends the law to—

  • decriminalise abortion:
  • better align the regulation of abortion services with other health services:
  • modernise the legal framework for abortion currently set out in the Crimes Act 1961 (the Crimes Act) and the Contraception, Sterilisation, and Abortion Act 1977 (the CSA Act).” [1]  

Background

The current legislative framework that applies in New Zealand to abortion was summarised in a Ministerial briefing paper by the New Zealand Law Commission in October 2018 as follows:

“New Zealand’s abortion laws are primarily set out in two statutes: the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977 (CSA Act). The CSA Act was enacted, and the Crimes Act provisions on abortion were amended, following a Royal Commission of Inquiry in 1977. Aside from some minor changes in 1978, those provisions have not been substantively amended since then.

“Under the Crimes Act it is an offence to procure or supply the means to procure an abortion. These offences are subject to certain exceptions. The offence of procuring an abortion in the Crimes Act does not apply to the woman seeking an abortion. There is, however, an offence in the CSA Act (punishable by a fine) that applies to women who seek to unlawfully procure their own miscarriage or obtain an unlawful abortion.

“The CSA Act also sets out a regulatory framework for the provision of abortion services and creates the Abortion Supervisory Committee (ASC), the regulatory body responsible for general oversight of abortion law. Under the CSA Act regime, abortions can only be carried out if they have been approved by two “certifying consultants” (doctors appointed by the ASC) and occur in an institution licensed by the ASC. A person who performs an abortion without complying with these requirements commits a regulatory offence.” [2]  

In a media release discussing the Abortion Legislation Bill 2019 (the bill), the Minister of Justice Andrew Little said “[a]bortion is the only medical procedure that is still a crime in New Zealand. It’s time for this to change…” [3]  

The media release also noted that:

  • abortion should be treated and regulated as a health issue
  • the bill will bring New Zealand into line with many other developed countries
  • oversight of abortion services would be transferred to the Ministry of Health from the Abortion Supervisory Committee.

Commencement

The bill provides that the Act comes into force on the day after the date of Royal assent (clause 2).

Part 1 – Amendments to Contraception, Sterilisation, and Abortion Act 1977 (CSA Act)

Interpretation

The bill provides for a number of definitions including, among others:

  • health practitioner “has the meaning given to it by section 5(1) of the Health Practitioners Competence Assurance Act 2003” [4]  
  • qualified health practitioner “in relation to the provision of abortion services, means a health practitioner who is acting in accordance with the Health Practitioners Competence Assurance Act 2003”
  • safe area means any premises at which abortion services are provided, and any area around those premises, prescribed in regulations made under clause 7 of the bill inserting a new section 17 as a safe area
  • woman means a person of any age who is capable of becoming pregnant (clause 5 replacing section 2 of the CSA Act)

Sections 10 to 46 replaced

Sections 10 to 46 of the CSA Act relate to abortions. These sections provide (among other things):

  • for the Abortion Supervisory Committee (section 10)
  • for restrictions on where abortions may be performed (section 18)
  • for licences to be issued to institutions to permit the performance of abortions (section 19)
  • that no abortion is to be performed unless it is authorised by 2 certifying consultants (section 29)
  • for the procedure where a woman seeks an abortion (section 32)
  • that it is an offence for a female to unlawfully procure her own miscarriage, liable on conviction to a fine not exceeding $200 (section 44).

The bill replaces sections 10 to 46 of the CSA Act (clause 7). The following outlines the salient features of clause 7 of the bill.

Provision of abortion services to women not more than 20 weeks pregnant -

The bill provides that a qualified health practitioner may provide abortion services to a woman who is not more than 20 weeks pregnant (clause 7 inserting a new section 10 into the CSA Act).

Provision of abortion services to women more than 20 weeks pregnant -

The bill provides that abortion services may be provided by a qualified health practitioner to a woman who is more than 20 weeks pregnant only if the health practitioner reasonably believes it is appropriate in the circumstances (clause 7 inserting a new section 11(1) into the CSA Act).

The qualified health practitioner must have regard to the woman’s:

  • physical health; and
  • mental health; and
  • well-being (clause 7 inserting a new section 11(2) into the CSA Act)

Counselling -

A health practitioner must advise a woman of the availability of counselling services but a qualified health practitioner may not require that counselling is attended (clause 7 inserting a new section 13(1) and (2) into the CSA Act).

Self-referral to abortion services -

The bill provides that a qualified health practitioner may not require a woman to be referred from a health practitioner (clause 7 inserting a new section 15 into the CSA Act).

Certain behavior prohibited in safe areas -

The bill provides that a person must not engage in any prohibited behavior in a safe area (clause 7 inserting a new section 15(1) into the CSA Act). This includes, but is not limited to, intimidating or interfering with a person with the intention of preventing them from accessing abortion services (clause 7 inserting a new section 15(3) into the CSA Act).

Conscientious objection

The bill provides that if a person has a conscientious objection to providing, or to assisting with providing, another person with:

  1. contraception services
  2. sterilisation services
  3. abortion services
  4. information or advisory services about continuing or terminating a pregnancy

they must tell the other person of their conscientious objection at the earliest opportunity.

Where contraceptive or sterilisation services are requested, the conscientious objector must also tell the other person how to access contact details of another person who is a provider of the service.

For abortion services or for information or advisory services about continuing or terminating a pregnancy, they must tell the person how to access the list of abortion service providers (clause 7 inserting a new section 19 into the CSA Act).

Employer providing certain services must accommodate conscientious objection of applicant or employee unless it would cause unreasonable disruption to activities

The bill provides that an employer that provides any of the services listed at a) to d) above may not, among other things:

  • refuse or omit to employ an applicant for employment on the basis that they have a conscientious objection (clause 7 inserting a new section 20(1)(a) into the CSA Act)
  • terminate an employee with a conscientious objection in circumstances in which the employment of other employees in the same or substantially similar work would not be terminated (clause 7 inserting a new section 20(1)(c) into the CSA Act).

New section 20(1) is subject to a new section 20(2) which allows an employer to take such action outlined in section 20(1), if they consider that the applicant’s objection would unreasonably disrupt the employer’s activities (clause 7 inserting a new section 20(2) into the CSA Act).

New Schedule inserted

The bill provides for a new Schedule 1 to be inserted in the CSA Act. This provides, among other things, for the Abortion Supervisory Committee to be disestablished (clause 2 of new Schedule 1).

Part 2: Amendments to other enactments

Subpart 1 – Amendments to the Crimes Act 1961

Section 182 amended (Killing unborn child)

The bill provides that a person is not guilty of the offence of causing the death of any child that has not become a human (which remains an offence under the bill) if they provide abortion services in accordance with the CSA Act (clause 11 replacing section 182(2) of the Crimes Act).

Sections 182A to 187A replaced

The bill provides that sections 182A to 187A of the Crimes Act are replaced. The salient sections to be replaced are summarised as follows:

  • section 183 provides that a person is liable to imprisonment for a term not exceeding 14 years who, with intent, unlawfully procures an abortion by any means. The woman or girl is not charged as a party to an offence against this section
  • section 186 provides that a person is liable to imprisonment for a term not exceeding 7 years who unlawfully supplies the means of procuring an abortion
  • section 187A(1) provides for the meaning of “unlawful” for the purposes of section 183 and 186 where a pregnancy is not more than 20 weeks gestation [5]  
  • section 187A(3) provides for the meaning of “unlawful” for the purposes of section 183 and 186 where a pregnancy is more than 20 weeks gestation [6]  
  • The bill replaces these sections of the Crimes Act with a new section 183 (clause 12). New section 183 provides that it is an offence for a person who is not a health practitioner to:
  • procure, or attempt to procure an abortion for a woman; or
  • perform, or attempt to perform, an abortion on a woman.

Subpart 3 – Amendment to the Health and Disability Commissioner Act 1994

Section 2 amended (Interpretation)

The bill extends the definition of health services in the Health and Disability Commissioner Act 1994 (HDC Act) to include abortion services (clause 16 amending section 2 of the HCA Act).

  1. Departmental Disclosure Statement: Abortion Legislation Bill 2019, Ministry of Justice, 19 July 2019, p.3.   [back]
  2. Law Commission, Alternative approaches to abortion law – Ministerial briefing paper, Abortion law in New Zealand, page 15 – 16, paragraphs 1.1 to 1.3.   [back]
  3. https://www.beehive.govt.nz/release/bill-modernise-abortion-law-introduced.   [back]
  4. Section 5(1) of the Health Practitioners Competence Assurance Act 2003 provides that a health practitioner means a person who is, or is deemed to be, registered with an authority as a practitioner of a particular health profession.   [back]
  5. For example, in the case of a pregnancy of not more than 20 weeks’ gestation, section 187A(1)(a) of the Crimes Act provides any act specified in sections 183 and 186 is not done unlawfully if the person doing the act believes that the continuance of the pregnancy would result in serious danger to the life, or the physical or mental health, of the woman or girl.   [back]
  6. Section 187A(4) provides that “for the purposes of sections 183 and 186, any act specified in either of those sections is done unlawfully unless, in the case of a pregnancy of more than 20 weeks’ gestation, the person doing the act believes that the miscarriage is necessary to save the life of the woman or girl or to prevent serious permanent injury to her physical or mental health”.   [back]