What if you had a way of providing an essential medical service that was safer, cheaper, less traumatic for patients, and meant they didn’t have to travel more than an hour each way to access it? Well, if it was for anything other than abortion, you’d be its champion. But this is abortion, and now the pioneering Tauranga Family Planning clinic, which has been providing early medication abortions in the Bay of Plenty since 2013, is under threat by anti-abortion court action that could worsen New Zealand’s already poor record on abortion access.
The court action by the Catholic anti-choice group Right to Life is a direct result of our now 38-year-old abortion laws, which criminalise abortion and continue to block the use of newer and better ways of providing it. And it’s not the first time our backward laws have been recruited for the purpose of banning or restricting abortion access. A 7-year case by the same group seeking to wind back access went all the way to the Supreme Court, where in 2012 Right to Life lost by a frighteningly narrow 2-3 ruling. The fact that abortion access in New Zealand was one justice away from being severely restricted in 2012 should have been a wake-up call that our criminalised abortion laws need urgent change. But, again, this is abortion and if there’s one thing (almost) all politicians agree on, it’s that they’d rather do nothing than wade into a debate about reproductive justice.
So nothing happened, and so here we are again, with abortion access back in the dock. The implications of this case are significant (more on that below), and underscore the urgent need for supporters of reproductive choice and access to press politicians to take action to give our fragile abortion access a secure foundation.
MPs have been on notice for decades that our laws are barely able to function: the Abortion Supervisory Committee has said so, the courts have said so, even the United Nations has said so. And still there is silence. To quote Prime Minister John Key during the 2014 election campaign: “I’m opposed to changing the law … I think the law broadly works.” And that’s been the standard line from the abortion liberals in Parliament for decades now – apart, that is, from a few stand-outs in the Green Party, which became the first-ever major party to adopt a pro-choice platform in 2014, some impressive Young Labour activism and a bold stand in 2010 by former Labour MP Steve Chadwick.
Importing U.S.-Style TRAP Laws
The new case at hand was publicly announced on Sunday, when Right to Life said it was headed to the High Court to challenge the Abortion Supervisory Committee over granting a licence to Family Planning to provide early medication abortions at its Tauranga clinic. (Family Planning is only an “interested party” in this case, and it will be the Crown Law Office that plays defence.)
Though we haven’t yet seen Right to Life’s formal arguments, the media release and RTL’s previous posts about the Tauranga clinic indicate this effort is straight from the American TRAP law playbook (Targeted Regulation of Abortion Providers). In this case, RTL plans to argue that our law requires any institution providing abortion have “adequate surgical and other facilities” for the performance of safe abortions. As even RTL acknowledges, when the 1977 Contraception Sterilisation and Abortion Act was enacted, there were no medical abortions. Since Family Planning’s Tauranga clinic isn’t a hospital or a surgical facility, I’m assuming RTL will claim it doesn’t have the “adequate surgical and other facilities” needed to hold an abortion licence under the law so the ASC shouldn’t have given it one. (A hearing will take place at the High Court in Wellington on 2 June starting at 10 a.m. According to the court, it should be open to the public.)
It’s important to explain a bit about what early medication abortion is. At the Tauranga clinic, medication abortions are available only up until 9 weeks of pregnancy (63 days), and involve bringing on a miscarriage using two medications usually taken 48 hours apart, Mifegyne or Mifepristone (formerly known as RU486) and Misoprostol (also known as Cytotec). You can read more here from Family Planning itself about what an early medication abortion entails. It’s also worth a reminder that people seeking abortions in the Bay of Plenty – as elsewhere – must still meet the requirements of our criminal statutes: Before you can get an abortion, two doctors (certifying consultants) must agree that your case meets one of the half dozen criteria listed in the Crimes Act.
Already our restrictive laws prevent doctors from applying best medical practice when it comes to abortion, primarily through delaying access but also in how abortion medication is administered. As long ago as 2001 a judicial ruling had to be sought simply to bring early medication abortion to New Zealand in the first place, again because the law was written before the “abortion pill” was available. It was that ruling, based on the law’s insistence that abortions have to be performed on a licensed premise, that now mandates patients must take both sets of pills at the clinic, rather than being able to take the second set of pills at home, as is best medical practice. Among other things, this raises the risk that the miscarriage might begin while you’re on the way home – in a car or on a bus. (That said, a recent positive is that those who are less than 7 weeks pregnant are now able to take both pills on the same day, saving that extra trip to the clinic. This is the result of medical research on the safety and effectiveness of the same-day regimen.)
Before the Tauranga clinic began offering early medication abortions, there were no services in the Bay of Plenty, and women had to travel to the Waikato region, to the town of Thames, for abortion services, more than an hour’s drive each way from Tauranga, and where they are invariably met by anti-choice protesters who know which day is abortion day. (Curb-side harassment is less easy in Tauranga, where protesters can’t tell who’s seeking abortion and who’s going in for a pap smear or an IUD or just a chat.) Family Planning chief executive Jackie Edmond has emphasised this case doesn’t mean the service is ending. Quoted in the Bay of Plenty Times, Edmond said “We’re providing a service as we always have, nothing has changed for us.” But what are the implications of a loss in this case?
Making Bad Access Worse
It’s not just Tauranga and Bay of Plenty patients who would be affected, we all would. That’s because abortion access in Aotearoa New Zealand, hampered as it already is by our cumbersome laws, is already causing harm, and the obvious and smartest and safest and best way to address that is to approve more such clinics, not to shut down the only one we have.
Family Planning knows this and has been working toward expanding access through its nationwide network. Instead, if RTL wins this case, Family Planning is likely to find itself caught in something that looks a lot like those infamous TRAP laws: forced, for example, to provide surgical facilities at a clinic that doesn’t need them. Just how bad is access now? In the latest AbortionSupervisory Committee report, which came out last month, the committee said it was “extremely concerned with the access issues of greater Auckland, particularly the burden placed on the women of South Auckland in relation to their access to local services”. It went on to say it first raised the issue with Counties Manukau District Health Board in 2008, and again in April last year. Clearly, nothing has happened. Match that with the table in the report showing at what stage of pregnancy abortions are taking place and you’ll see that Auckland is second only to Northland in providing abortions at a later gestation than other regions, ranging up to more than 10 weeks. (Weirdly, the breakdown is by regional council, not by DHB.) What’s more, a 2010 study showed an average wait time for abortion access in New Zealand of more than three weeks.
It’s commonsense, and borne out in numerous studies, that the earlier an abortion is performed, the safer it is and – as anyone who’s had to wait for abortion access will know viscerally – the better it is for patients. So, of course, Right to Life, in its latest effort to chip away at access, wants women to have the wait longer and travel farther. This is harassment no less than the more overt kind encountered on the pavement outside pretty much every abortion provider in this country – something else the ASC said in its report it was concerned about: “We have received reports of instances of verbal abuse and the distribution of offensive material to people entering hospital facilities. … We have addressed this in previous reports and feel it is necessary to highlight again this issue affecting the provision of services throughout New Zealand.” As with everything else around abortion, there was no clamour from Parliament to deal with the problem of anti-abortion bullying either.
Another likely outcome of all these efforts to harass and curtail abortion access is that more people will seek abortion medication via the Internet. I looked quite deeply into this issue a few years ago, and it was clear that even then a lot of abortion medication was being ordered from outside New Zealand. Anecdotal reports I’ve received since suggest that this is happening more often now, sometimes resulting in women presenting to medical professionals with problems resulting from having taken abortion drugs they procured over the Internet.
If this were any other issue, if the lives at stake were any other than those of people seeking abortions, action to provide this health service locally and more safely would be swift. But this is abortion. So even though this is about a procedure roughly one in four New Zealand women will undergo in their lifetimes, and even though abortion is something that is absolutely crucial to the autonomy and freedom of at least half of the population, politicians will continue to say everything is fine, judges will continue to make the law and doctors will continue to have control over our bodies, and our lives.