Abortion: it’s a crime

If you want to understand the legislation controlling abortion in New Zealand, you have to go to the Crimes Act 1961. It is a much amended act: that date of 1961 is a little misleading in that regard. Once you are at the Crimes Act, because abortion is a crime in New Zealand, head for Part 8, Crimes Against the Person, and from there, to section 183: procuring abortion by any means. Under that section you will find that:

Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to procure the miscarriage of any woman or girl, whether she is pregnant or not,—
(a) unlawfully administers to or causes to be taken by her any poison or any drug or any noxious thing; or
(b) unlawfully uses on her any instrument; or
(c) unlawfully uses on her any means other than any means referred to in paragraph (a) or paragraph (b).
(2) The woman or girl shall not be charged as a party to an offence against this section.

In other words, performing unlawful abortions is illegal.

So what then is an unlawful abortion? You need to head to section 187A: Meaning of Unlawfully. In that section, you find out that performing an abortion is unlawful, unless you meet certain criteria. The criteria are set out in subsections 1(a) to 1(d), and 2(a) and (b). They are familiar – danger to the mother’s physical or mental health, pregnancy following rape or incest, serious physical or mental deformity of the fetus.

The specific clauses and subclauses are of course important, but what I want to focus on here is the placement of the rules about abortion in the Crimes Act. It seems that it’s a crime for women to have authority over their own bodies.

That is all that I want to say about that, because really, there is nothing else to be said. Just reflect on it for a moment. In New Zealand, in the 21st century, it’s a crime for women to have authority over their own bodies.

******************************

There are two other matters I want to raise.

First, go take a look at the language of the Contraception, Sterilisation and Abortion Act 1977. In particular, look at section 32: Procedure where woman seeks abortion. Here’s an extract:

If, after considering the case, the woman’s own doctor considers that it may be one to which any of paragraphs (a) to (d) of subsection (1), or (as the case may require) subsection (3), of section 187A of the Crimes Act 1961 applies, HE shall comply with whichever of the following provisions is applicable, namely:
(a) Where HE does not propose to perform the abortion HIMSELF, HE shall refer the case to another medical practitioner (in this section referred to as the operating surgeon) who may be willing to perform an abortion (in the event of it being authorised in accordance with this Act); or
(b) Where HE proposes to perform the abortion HIMSELF (in the event of it being authorised in accordance with this Act), HE shall—
– (i) If HE is HIMSELF a certifying consultant, refer the case to one other certifying consultant (who shall be a practising obstetrician or gynaecologist if the woman’s own doctor is not) with a request that HE, together with the woman’s own doctor, determine, in accordance with section 33 of this Act, whether or not to authorise the performance of an abortion; or
– (ii) If HE is not HIMSELF a certifying consultant, refer the case to 2 certifying consultants (of whom at least one shall be a practising obstetrician or gynaecologist) with a request that they determine, in accordance with section 33 of this Act, whether or not to authorise the performance of an abortion.

Caps and bolds mine.

New Zealand legislation drafters have long since abandoned the practice of assuming that “he” includes “she”. They adopt gender neutral or inclusive language, even using phrases such as “himself or herself”, and “he or she” where necessary. The very language of the Contraception Sterilisation and Abortion Act, with its implication that doctors are necessarily male, tells us that it is old law, law that is very much in need of being updated. Of course, I would far rather that attention was paid to the content of the law: this is not a call to fix the form but not the substance of the law. Nevertheless, the language of the Act tells us something disturbing, namely, that the law has long been due for revision, and none of our lily-livered politicians will do anything about it, because women’s rights can always be deferred, put off, relegated to the back of the queue in pursuit of some grander goal.

And second, this is what happens when abortion is treated as a crime: Repairing the damage: Before Roe.

Banning abortion doesn’t make it stop; it just drives abortion underground, with terrible consequences.

******************************

This post is my contribution for the blogswarm called by Mothers for Choice on the theme of “Abortion: it’s a health issue, not a crime”. The blogswarm is timed for April 7 2011, World Health Day.

Advertisements

18 comments on “Abortion: it’s a crime

  1. Julie says:

    This is awesome. Straight to the pool room blogswarm index!

  2. Gravey Dice says:

    Brilliant too. When I started researching it, I noticed the language on the CSA Act, but when I ended up re-drafting my post, I lost track of it altogether. Really happy you picked that one up.

  3. clem says:

    To demonstrate your right to your body by murdering the baby lodged defencessly therein strikes me as tyrannical to say the least. How do you live with your conscience ?

    • Deborah says:

      I’ve written extensively about abortion, clem. Here is the post where I go through some arguments with respect to the morality of abortion: Speaking up for abortion.

    • Mindy says:

      Quite easily Clem because I trust myself and other women to know what they are able to do and not do. It is their body after all it should be their choice. Not yours. In your comment the key word is lodged.

    • Gravey Dice says:

      And clem – read the legislation. The unborn baby is not a human being.

      You perhaps ought to do a little reading on the subject.

      Try the two extremes: Morning after pill at one end, and immediately prior to birth on the other. Most people would not have a great deal of an issue with the morning after pill – which kills the cluster of cells. In most cases, aborting a full-term foetus is questionable. But then, there are some circumstances where it might be necessary.

      Consider this also: Continuing with pregnancy and birth will definitely mean the death of either mother or child, and if the mother survives, she will never be able to have a baby again. We know one of them is going to die, and we have to choose which one. Now, clem, imagine you are the mother. What’s your position now?

  4. Captiver says:

    Just one thing that perhaps should be clarified about 2a and b. Rape is not a ground for abortion in New Zealand. Which is pretty shocking in itself, and something people need reminding about. Rape is one of the factors that can be taken into account, (Section 187A (2b)) but as the law explicitly states, is not a ground in itself. This really puts our laws in the restrictive category. Appreciate your great post doesn’t say it’s a ground — just thought it might be useful to explicitly note that it’s actually not a ground.

  5. jane says:

    I think you need to think more clearly about this law – it is preventing people from performing abortions on women against their will also. Remember, that it does also say “The woman or girl shall not be charged as a party to an offence against this section.”, which means that it is not, as you say, a crime for the woman to have authority over her body. She could, after all, perform an abortion on herself! It is a crime for another person to have authority over their body (whether delegated from them or not) or being a party to them having authority over their body.
    I am not disagreeing with your objection to the law more generally (and, indeed, it is due for revision) but I think your analysis is a bit disingenuous.

    • Mindy says:

      Actually I think it is if you don’t meet the criteria:

      performing an abortion is unlawful, unless you meet certain criteria. The criteria are set out in subsections 1(a) to 1(d), and 2(a) and (b). They are familiar – danger to the mother’s physical or mental health, pregnancy following rape or incest, serious physical or mental deformity of the fetus.

      So a woman doesn’t have the choice of procuring an abortion if she chooses to. If she does so, without meeting the criteria it is illegal. Also Deborah’s point is that all this is under the Crimes Act, as in abortion is a crime.

    • Gravey Dice says:

      Mindy is right. The legislation is quite clear. A woman cannot procure an abortion other than in specific circumstances. A woman who attempts to cause her own miscarriage through ingestion of any poison or through any other means is a crime.

      The woman shall not be charged only where an abortion is performed in certain circumstances. If she attempts to cause her own, then she is a party to the offence.

    • Tamara says:

      Gravey and Mindy are right, and it’s right there in section 44 of the Contraception, Sterilisation and Abortion Act 1977:

      Female procuring her own miscarriage
      (1) Every female commits an offence and is liable on summary conviction to a fine not exceeding $200 who, with intent to procure miscarriage, whether she is pregnant or not,—

      (a) Unlawfully administers to herself, or permits to be administered to her, any poison or any drug or any noxious thing; or

      (b) Unlawfully uses on herself, or permits to be used on her, any instrument; or

      (c) Unlawfully uses on herself, or permits to be used on her, any other means whatsoever.

      (2) For the purposes of subsection (1) of this section the term miscarriage means—

      (a) The destruction or death of an embryo or fetus after implantation; or

      (b) The premature expulsion or removal of an embryo or fetus after implantation, otherwise than for the purpose of inducing the birth of a fetus believed to be viable or removing a fetus that has died.

      (3) For the purpose of determining whether any act referred to in subsection (1) of this section is or is not done unlawfully the provisions of section 187A of the Crimes Act 1961, so far as they are applicable and with the necessary modifications, shall apply.

      (4) The provisions of subsection (1) of this section shall apply whether or not the poison, drug, thing, instrument, or means administered or used was in fact capable of procuring miscarriage.

      Abortion legislation is an unethical mess. To even understand it properly you have to read to both Acts together! And then it still criminalises women for attempting to control what happens in our own bodies.

  6. […] This post is part of the blogswarm – Abortion 7 April 2011.  This isn’t about the right or wrong of it.  This isn’t about the morality of it (for that, go to the utterly brillant page on The Hand Mirror for that).  This is about treating abortion as a health issue rather than as a crime. For an alternate view of my discussion here, have a look at BeeFaerie’s blog. […]

  7. Stef says:

    Awesome post!

  8. […] three faves are from Octavia, La Ranita and Deborah but there’s pa-lenty of other awesome […]

  9. Jackie Clark says:

    I had no idea that abortion was still technically illegal in NZ. I am shocked.

    • Gravey Dice says:

      And that’s the real crime! The fact that it is illegal.

      It is interesting that there does seem to be universal agreement that the law needs revision. Various sides of the debate just argue over which way it should go.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s