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

[2008] NZHC 865; [2008] 2 NZLR 825
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This case was amended by a Judgment on Declaratory Relief and then overruled by the Court of Appeal in [2011] NZCA 246.

The applicant, the Right to Life New Zealand (RTL), argued that the high rate of abortion in New Zealand indicated women were accessing “abortions on request” in contravention of the Contraception, Sterilisation and Abortion Act (the Act), which stipulates abortions should only be provided where two certifying consultants agree that the pregnancy would pose a serious danger to the mother’s life, physical or mental health. In 2006, consultants authorized about 99% of formal requests for abortions, with almost all based on the belief that the pregnancy posed a serious danger to the mother’s mental health. ROLNZ blames the respondent, the Abortion Supervisory Committee (the Committee), for failing to properly discharge its statutory responsibilities to oversee and ensure the proper implementation of New Zealand’s abortion law. As such, RTL sought judicial review of the Committee’s current practices and interpretation of its statutory functions. RTL’s argued that the Committee had failed to carry out its statutory functions in three main ways:

  1. The Committee failed to take notice of the rights of the unborn child when exercising its statutory responsibilities, and as a result the Committee had breached the New Zealand Bill of Rights;
  2. The Committee failed to exercise its functions under the Act with respect to ensuring abortion law is deployed consistently, effectively and in accordance with the Act, and in particular, the Committee has failed to investigate and determine whether certifying consultants are relying too heavily on the mental health ground to authorise abortions;
  3. The Committee failed to properly manage the appointment of adequate abortion counsellors and ensure counsellors acted independently from institutions licensed to provide abortions.

In response, the Committee argued that it was properly discharging its responsibilities under the Act. It asserted that the New Zealand Bill of Rights does not apply to unborn children and the Act should not be interpreted in a way that confers human rights on the unborn child, it has no statutory powers to investigate or review particular medical judgments made by consultants, and the legislation does not require that counselling services are provided in an environment independent of the licensed institutions.

The Court held that neither the Act nor the New Zealand Bill of Rights recognizes that the unborn child has a right to life.  The Court applied the common law “born alive” rule that an unborn child has no legal rights prior to birth.. However, the Court also found that in New Zealand there was no right to abortion per se, unlike in North America where a right to abortion is established under constitutional guarantees of liberty and security of the person. Rather the Act aims to strike a balance between the state’s interest in protecting the unborn child and the rights and interests of the mother.

The Court found that the Committee had misinterpreted its functions under the Act. The Court believed there was reason to doubt the lawfulness of many abortions authorized by consultants in New Zealand and, because it was part of the Committee’s functions to oversee the operation and effect of abortion law in New Zealand, it should investigate and form its own opinion regarding the lawfulness of particular decisions made by consultants to the extent necessary to fulfill these functions, even if the investigation could influence future decisions of the consultants.

The Court held that counselors do not have to be independent of licensed institutions that provide abortions. The Court reasoned that the Act did not create such a requirement and, in any event, there was no evidence to suggest that counselors employed at licensed institutions are incentivised to encourage women to have abortions. Furthermore, the Committee had fulfilled its statutory obligations by ensuring there were sufficient and adequate counselling facilities throughout New Zealand, and it was not required to directly appoint counselors itself.

[5] “(d) The Committee has misinterpreted its functions and powers under the abortion law, reasoning incorrectly that Wall v Livingston means it may not review of scruntinise the decisions of certifying consultants.  I find that it may do so, using its power to require consultants to keep records and report on cases they have considered, for the purpose of performing its statutory functions….the Committee may form its own opinion about the lawfulness of consultants’ decisions to the extent necessary to perform those functions”.   [80] “For an interest to become the subject of a legal right, however, it must obtain not merely legal protection but also legal recognition.  The state’s interest in protecting the unborn child is addressed by restricting the woman’s autonomy.  She may request an abortion for any reason, but the circumstances under which her request will be granted are limited by statute. Those provisions do not impose a duty in respect of the unborn child and, accordingly, do not found the correlative right. The woman must comply with the abortion law but when compliance with a given rule is understood merely as the condition of securing or avoiding certain further legal effects, then compliance is not considered a legal duty.” [83] “The abortion law exists to regulate and authorise abortions. Under it not only the life but also the health of the mother take precedence over the life of the unborn child.  That is a compelling indication that the legal status of an unborn child differs profoundly from that of a born person. A legal right to life would be incongruous in such a law, for it would treat the unborn child as a separate legal person, possessing a status fundamentally incompatible with induced abortion. Far from modifying the born alive rule, the abortion law rests on it”. [141] “…it is not at all obvious that counsellors employed by District Health Boards have any incentive to encourage women to have abortions in Board facilities. I am not prepared to infer that a conflict of interest exists.  Nor is there any reason to suppose that professional standards are incapable of managing any latent conflicts.”
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