Wednesday, 6 May 2009

Appeal court can't fix fundamentally flawed abortion law - opinion piece by Alison McCulloch

If you get the print edition of the Herald you may have noticed this piece on the opinion page. You won't find it online, for some strange reason.

Big, massive, mammoth size thanks to Alison McCulloch for emailing it to me so that we could put it up here and give it a wider audience.

New Zealand Herald, Page: 11 - Wednesday, 6 May 2009

Appeal court can’t fix fundamentally flawed abortion law
Outdated minority stance on moral values still casts a long shadow, says Alison McCulloch

GOVERNMENT lawyers are due back in court this month defending flawed abortion laws against an effort to make them even worse.

The anti-abortion group Right to Life began its latest legal battle over abortion five years ago and the case has now reached the Court of Appeal. Last year, the group was buoyed when Justice Forrest Miller ruled in the High Court that there was "reason to doubt the lawfulness" of many abortions in New Zealand.

Indeed, Justice Miller went on to say, the Abortion Supervisory Committee itself "has stated that the law is being used more liberally than Parliament intended".

To which the only sensible answer is: thank goodness. Thank goodness the clinics and doctors and women of this country have managed to adapt such an outdated, cumbersome law so as to give New Zealanders access to the kind of reproductive health care one might expect of a modern Western nation.

But the problem is not just that time has passed this legislation by. Its flaws were clear the moment Parliament voted it into the statute books in December 1977, after an all night debate during which more than a quarter of the House spent crucial hours either absent or asleep.

Mike Minogue, then National MP for Hamilton West, said at one point he was sick of arguing complicated issues to "certain sleeping gentlemen" who woke when the division bells rang and followed Bill Birch into the appropriate lobby. Only four of Parliament 's 87 MPs were women, and all opposed the legislation.

Prime Minister Rob Muldoon, an outspoken abortion opponent, wasn't caught napping, but he went missing for eight hours.

He complained later about amendments excluding fetal abnormality and rape as grounds for abortion, admitting he couldn't remember whether or not he'd voted on them. It turned out he hadn't. The law that passed that day had to be amended in six months just to get out of the starting gate.

But more important than the debating chamber slumber were the legislation's intellectual – or more accurately, anti-intellectual – roots: The Royal Commission on Contraception, Sterilisation and Abortion.

This poorly argued and remarkably conservative document continues to cast a long shadow, both through the laws it generated and because it is still being used as a guide for their interpretation. Justice Miller made that clear last year when he cited the royal commission in his ruling on the Right to Life case.

Under the current laws, a woman seeking an abortion in New Zealand must get approval from two certifying consultants on one of four main grounds. The cries of illegality from anti-abortion groups arise over the fact that more than 98 per cent of the abortions performed each year are granted on grounds of risk to the mental health of the mother.

Studying the 30-something-year-old report that laid the groundwork for this legislative quagmire, it's hard not to be struck by the shoddy arguments it offers up – circular and contradictory reasoning, selective use of evidence and blatant errors, to mention just a few.

Speaking at a Family Planning conference in 1977, Dr Tony Johnston said that if it were submitted to him by an honour’s or master’s student he would "return the document to its author". And not with an A+.

Among his criticisms was the way it confounded scientific method with what Johnston called a "minority moral values" position. Indeed, the report is big on "values", looking longingly backward to a time when it imagined morals were clearer and stricter, the family more stable, the church more influential. And, oh, how it wanted those imaginary times back again.

Just like the 1954 Mazengarb inquiry into juvenile delinquency before it, and the 1937 investigation of abortion before that, the royal commission saw evidence of serious moral decline almost everywhere it looked, a veritable "tide of permissiveness" to use its own phrase.

"Until comparatively recently," it lamented, moral standards were "strongly influenced by the organised churches with their uncomplicated teaching that right is right and wrong is wrong, ' and, in matters pertaining to sex, their insistence on the virtues of chastity".

The 1937 and 1954 reports were filled with similar laments leading one to wonder how we are still standing, given the moral decay that 's been piling up around us for so many decades.

In the end, the commission's twists and turns look like little more than a ham-fisted attempt to make the evidence fit a desired political outcome. Muldoon and others were committed to what they called a "middle of the road" option, where abortions would be restricted, but not banned outright.

For the commission, that meant trying to construct a formula that could distinguish worthy abortions from the rest. Which is how, for example, it could end up arguing that an abortion "for reasons of social convenience is morally wrong" on the very same page as giving the moral green light to aborting "handicapped" fetuses, "because the burden of the handicapped person to himself and to his parents may be greater than the sum total of their happiness".

Like most of its moral judgments, the one about "social convenience" existed only in the eye of its beholder. It's frightening that a document filled with such subjective and frequently contradictory assertions should now be held up by judges for its royal pedigree.

It's no wonder anti-abortion activists continue their efforts to gnaw away at women 's rights through the courts.

Politicians know the laws are a mess. Their own Abortion Supervisory Committee, for one, has frequently told them so.

But like their counterparts in 1977, MPs of every Parliament since have wanted to debate abortion about as much as the Class of 2008 wants to revisit smacking, which leaves the rest of us to muddle along as best we can. If that means being more "liberal" than the 1977 Parliament was, all to the good.

Dr. Alison McCulloch is writing a history of WONAAC, the Women's National Abortion Action Campaign.

If you want to get in touch with WONAAC to support their activities you can reach them by emailing ChoiceNZ at gmail dot com.


Swimming said...

It is online. Has been all day...

Muerk said...
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Danielle said...

Women have been aborting pregnancies since the year dot. They aborted them in the 30s, and in the 50s, and in the Victorian period, and the Regency period, and during the Enlightenment, and the Middle Ages, and forever and ever amen. They drank gin and had hot baths and rode horses and stuck coat hangers into themselves and took 'herbal remedies'. Therefore, it is logically impossible to tie abortion to some sort of amorphous 'lack of social bond' between parents and children in our Terrible Awful Modern Society. Sorry: that's utter tosh.

A Nonny Moose said...

Muerk, the debate is not the morals of abortion, it's about making sure the law makes a woman safe enough in her reproductive choices. HER choices. Hers alone.

Muerk said...
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Trouble said...

Four is a fraction of the number of pregnancies a Victorian woman who married young might have been expected to carry. Despite sexual morals being strict in those days, life was cheaper than now - infant mortality, debtors' prisons, slavery in the US, child labour etc. Something that society of the time would have described as moral would be shocking to today's eyes, and was already coming into question by contemporary authors like Dickens.

I've been wondering whether my pregnancy would change my staunch pro-choiceness. It hasn't. It's made me realise even more personally that gestation is work, and a tax on my body's resources that I should have the ability to opt out of, not that I have any intention of doing so right now.

Being affected by the business end of pregnancy gives you marginally more insight and right to comment than, say, Garth George, but not nearly as much as being currently, personally affected by an unwanted pregnancy. Making a decision over someone else's pregnancy is morally abhorrent to me no matter who you are.

Muerk said...
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Trouble said...

To you, perhaps. Not to everyone. My moral compass turns around things that maximise or minimise suffering. DNA is irrelevant - would an identical twin have the right to harvest the other twin for its organs, just because they have the same DNA?

Muerk said...
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Anonymous said...

I disagree stongly with utilitarianismBully for you. I disagree strongly with the idea of a big bearded guy in the sky who created the world, but I don't expect you to abandon Catholicism because of it.

Lucy said...

Caregivers beating their babies and toddlers to death have become common place news items. I'm gonna go ahead and say this is a good thing, because it means these crimes are being *reported*. Don't try and tell me that in the 1950s no-one ever hit or killed their kids. They did. It just didn't make the mainstream news - or any news. If you're going to pick something to be morally outraged over, the increase in DV reporting is not your best bet. b

Trouble said...

What's with a fetus being "her", Muerk? You can't tell either way without invasive testing in the first trimester, and over 50% are male. Is that something from the Pro-life Handbook for Persuading Women?

Anonymous said...

Clearly you are a student of history muerk. As such I presume it's not news to you that the idea that things were better and people were kinder to one another in the past is probably one of the few things that remains constant throughout history. During the 1950s, a period you are eulogising as wonderful and peaceful, your own ideological ancestors were fretting about how terribly degenerate society has become.

But let's get specific. You seem to feel abortion leads to a higher crime rate. If the opposite were shown to be true, would you support abortion? And if not, why do you bother bringing it up?

The reason you're having trouble convincing anybody is that your belief ultimately stems from what the Pope told you to believe, and for non Catholics the word of some aged former Hitler youth member just isn't that persuasive.

Muerk said...
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A Nonny Moose said...

Have you ever considered how the legalization of abortion could have CUT the crime rate in the last 30 years?

Just imagine if abortion was still illegal now how many children would be born into poverty and violent families. Just imagine the generation of women who would have struggled to bring money into the home. Just imagine the burdens on social welfare. Just imagine the desperation of families struggling to feed another mouth.

Think of it as the population control you've always wanted for our overburdened social welfare systems.

Oh, and the wonderful 1950s? Yes, the era of emotionally absent fathers returned from wars, the McCarthy Era, the burgeoning vaccination era, 1st generation birth control pills (hell, my mother tells me), atomic bomb testing. The things you take for granted now to be a welcomed and competant mother were borne on the backs of the 1950s.

But sure, take away a women's medical rights, and see how much you enjoy the health care you'd get.

Anonymous said...

Muerk, I didn't mean to imply that Ratzinger's flirtations with fascism informed his stance on abortion, merely that I don't think he has any personal authority on this subject. But since you believe his authority comes from his personal relationship with a giant omnipotent beard in the sky, I don't expect you to agree with me.

Muerk said...
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Deborah said...

Well, it's pretty poor philosophical reasoning, muerk. I would mark any essay handed in to me with reasoning like that with a fail grade. And yes, I am ver experienced in marking philosophy essays.

Muerk said...
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Deborah said...

muerk has removed her last comment before I had a chance to reply to it (I saw it when my husband was surfing, and I didn't want to boot him off the computer in order to reply).

So it's a moot point. Whatever. If it is reposted, I will reply.

Julie said...

Sorry Dave, I couldn't find it linked from the Opinion page, where the other columns from the same printed page were, and had a bit of a search but obviously failed!