Abortion Supervisory Committee v. Right to Life New Zealand Inc.

[2011] NZCA 246
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This case is an appeal from the High Court. An appeal from this case was dismissed by the Supreme Court in [2012] NZSC 68.

A cross-appeal was filed by the respondent, the Right to Life New Zealand Inc (RTL), which asserted the lower court erred by finding the unborn child had no right to life and that abortion counsellors do not have to be independent of licensed institutions that provide abortions.

The respondent and the appellant agreed the following issues should be decided on appeal:

  1. Does the unborn child have a right to life?
  2. Does the common law “born alive” rule apply in New Zealand?
  3. Does the New Zealand Bill of Rights Act guarantee the unborn child has a right to life?
  4. Is there a conflict of interests if the licensed institution providing abortions also provides counselling services?
  5. In order to fulfil its statutory functions, is the Committee empowered to investigate and scrutinise the decisions of certifying consultants and form its own view about the lawfulness of decision?
  6. Is there any evidential foundation to the comments made in the lower decision that the approval rate for abortions is remarkably high?
  7. Does the Court have jurisdiction to determine whether certifying consultants are obeying the abortion law?

The Court held that the right to life does not extend to an unborn child. The Court reasoned that the interests of the unborn child were adequately protected by requiring that any abortion is medically authorized and that there is nothing in the Act to support recognition of an express right to life. Moreover, the Court was not persuaded that the Act altered the “born alive” rule, and there was no suggestion in the New Zealand Bill of Rights that the right to life was intended by the legislature to be extended to an unborn child.

The Court held that counsellors did not have to be independent of licensed institutions, and the Committee was only required to appoint counsellors itself if the counselling services already provided throughout the country were found to be insufficient.  The Court reasoned that there was nothing in the Act that required it to depart from the findings of the lower court on this issue.

The Court found that the Committee does not have the power to review or investigate particular decisions made by certifying consultants. The Court reasoned that it was not open to the Committee to inquire about the lawfulness of a consultant’s decision because the authorization of an abortion was purely one of medical judgment. The Committee only has power to oversee the work of certifying consultants generally. Moreover, the Court found that the Committee lacked the powers necessary to obtain private records of patients to make comprehensive investigations into consultant’s decisions, and that any concerns about whether a certifying consultant was properly applying the abortion law could be investigated by the Medical Council or the Health and Disciplinary Commissioner.

The Court found that the observations made by Miller J regarding the number of abortions in New Zealand and whether certifying consultants were obeying the law were inappropriate. The Court reasoned that the concerns raised by the lower court were matters to be investigated by the Committee or the Health and Disability Commissioner, rather than the judiciary.  As such, the comments made by the lower court had no lawful effect.

A dissenting opinion was also offered in the case. The dissenting Judge reasoned that the decisions of certifying consultants were at the very heart of the operation of abortion law in New Zealand, and therefore, for the Committee to effectively carry out its oversight functions it must inquire into particular decisions made by consultants.  The dissenting opinion also found the judiciary did have a role to assess whether the Act was being complied with given the high abortion rate, but the Judge did not define the scope of the Court’s jurisdiction in this respect or whether the lower court could have made definite findings on the issue.

[55] “…we are satisfied that there is no warrant for interpreting the CSA Act consistently with a “State Interest”/right to life for the unborn child. The legislation, as understood from its text and according to its purpose, does not lead us to the interpretation contended for by RTL. Furthermore, we can find no basis in the CSA Act for an express right to life. Neither does that concept separately give rise to a procedural obligation of inquiry/investigation on the part of the Committee to inquire into whether certifying consultants are complying with the law in particular cases. Neither the Long Title, nor any of the specific provisions relied upon by FTL, support such a conclusion.”

[101] “…we consider that the Act characterizes the decisions of certifying consultants as a “medical assessment pure and simply”. The legislation has been careful to immunize the Committee from involvement in decisions made by health professionals on medical and clinical grounds in particular cases.  Moreover certifying consultants are not required to give reasons for decisions . . . . The Committee cannot require certifying consultants to specify in the authorizing certificates the specific diagnosis and its severity.”

[136] “With respect to the findings that cast doubt on the lawfulness of the decisions of the certifying consultants, given the conclusions we have reached on the main ground of appeal, such findings ought not to have been made.  We consider that the appropriate channels of investigation would involve either a complaint by a patient or potentially by the Committee itself, in which case the Health and Disability Commissioner would become involved.  Alternatively there might be a complaint to the police, in which case the police would investigate the matter.”

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