Supreme Court of New Zealand Rejects Pro-Life Challenge
By Dave Andrusko
In a 3-2 split decision, the Supreme Court of New Zealand that ruled that the country’s Abortion Supervisory Committee has no power to examine the lawfulness or the clinical correctness of particular decisions made by certifying consultants.
The Abortion Supervisory Committee is the statutory body charged with administering the country’s abortion law and providers. Under the law, each abortion must be authorised by two certifying consultants.
In a challenge that first began in 2005, Right to Life of New Zealand argued that the Committee did have the power “to review or scrutinize the decisions made by these certifying consultants and form its own view about the lawfulness of their decisions to the extent necessary to perform its functions.”
In fact High Court judge Forrest Miller agreed with them in an earlier ruling, but he was overruled last year by the Court of Appeal.
It was that reversal that Chief Justice Dame Sian Elias and Justice Peter Blanchard, now retired, and Justice Andrew Tipping, affirmed.
“They said the committee could ask a consultant how he was approaching decision-making in general over the whole of his workload,” the Sydney Morning Herald reported.” It “did not appear the committee had made such inquiries, and may not have ‘fully appreciated the breadth of its functions and powers,’” the majority said.
However the Abortion Supervisory Committee “could not question how a consultant came to a diagnosis or conclusion in a particular case, even one selected at random and in which the woman who sought an abortion was anonymous in the consultant’s response,” the Morning Herald reported. “To do so would be to try to review the clinical judgment of the consultant in an individual case, something not contemplated by law, the Supreme Court majority said.”
Ken Orr is spokesperson for Right to Life of New Zealand. Orr expressed disappointment but did find some positive notes in the decision.
“Right to Life notes that 98 per cent of abortions are authorised on the grounds of mental health,” Orr said. “Right to Life also notes that a previous chairperson of the Abortion Supervisory Committee stated in a national newspaper in 2000 that she did not believe that all these women were suffering from mental ill health and that consultants were using mental health grounds to provide abortion on demand.”
On the plus side Orr noted that the judgment “now places certifying consultants on notice that the Committee has power to make generalized inquiries into the way they are carrying out their functions. The judgment also informs the Committee that they were mistaken in believing that they had no statutory duty or power to make these enquires.”
The pro-abortion group, the Abortion Law Reform Association of New Zealand blogged that “ALRANZ welcomes the news as a relief, but this clearly points – yet again – to the need for action to modernise our 35-year-old abortion laws to give New Zealanders the right to make their own decisions about their fertility, and stop endless court assaults.”
However the ALRANZ also noted that because the decision was 3-2, the Supreme Court decision could have gone the other way.
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