Abortion Legislation Bill – what are our politicians voting on?
The proposed law in detail
It is vital that all Kiwis and MPs are aware of the details of the proposed law change outlined in the Abortion Legislation Bill.
- Abortion from 20-weeks through to birth, for any reason.
- Sex-selective abortion legalised.
- Abortion from 20-weeks through to birth, for disabilities including cleft lip, club foot and Down syndrome.
- No requirement that a doctor must be involved in an abortion.
- No legal requirement that babies born alive are given medical support.
- No legal requirement that pain relief be given to babies being aborted between 20-weeks and birth.
- No legal restrictions on controversial methods of abortion.
Abortion from 20-weeks through to birth, for any reason
Under the proposed law, new criteria would be introduced under which an abortion can take place between 20-weeks and birth.
There are only a few other regions in the world where abortion is available in-practice right through to birth for any reason. Victoria, Australia has the closest abortion up to birth provision to that proposed for New Zealand. There have a number of years of reliable data collected in Victoria that can be examined to look at the impact the similar provision has had there.
The law in Victoria allows for abortion right through to birth on physical, psychological and social grounds when approved by two doctors; this can be the abortion operating surgeon and anaesthetist.
The provision in Victoria is very similar to the provision outlined in the New Zealand Bill, except the New Zealand provision has even fewer safeguards.
The proposed legislation in New Zealand law would allow abortions between 20-weeks gestation and birth, with the go-ahead from just two health practitioners (this could include nurses and midwives) rather than the higher threshold of two doctors that are required in Victoria. The Abortion Legislation Committee have now widened the already loose criteria to include “overall well-being” – making it even easier for abortions to happen between 20-weeks and birth in New Zealand. These terms are undefined in the Bill and it would be up to the health practitioner involved as to how they interpret them.
Ahead of the legislation being introduced in Victoria in 2008, abortion activists claimed that, although abortion would, in practice, be allowed for any reason, doctors would ensure that the vast majority of abortions would only occur in rare circumstances, such as when a baby had a condition where they would either die in the womb or shortly after birth (a fatal fetal abnormality or life-limiting disability) – similar claims are currently now being made about the proposed New Zealand abortion law by abortion campaigners and MPs in New Zealand.
Data from the 12 years of the law being in operation in Victoria outlined in reports from The Consultative Council on Obstetric and Paediatric Mortality shows this has not been the case.
This data shows that since the law changed in 2008, 1,418 late-term abortions (between 20-weeks gestation and birth) have been allowed by doctors for ‘psychosocial’ reasons – these were terminations where the baby does not have a disability, and the abortion was performed on social grounds. In 2011, one of these abortions on social grounds occured at 37 weeks.
Under New Zealand law currently, abortion is allowed post-20 weeks on very strict grounds (when the abortion is “necessary to save the life of the woman or girl or to prevent serious permanent injury to her physical or mental health”).
This strict law has meant that abortions post 20-weeks are rare – for example, 72 abortions occurred after 20-weeks in New Zealand in 2017.
Victoria has a population that is only 32% larger than New Zealand’s, but the number of abortions that occurred in the same year post 20-weeks were much higher, 323 or 348.61% higher than the number that occurred in New Zealand that same year (published data for Victoria has not been released for 2018 yet).
New Zealand’s current 20-week time limit is already far higher than many other countries. For example, the most common time limit for most abortions across EU countries is 12-weeks, this includes the new law in the Republic of Ireland where abortion is also restricted in most cases to 12-weeks gestation.
To introduce de-facto abortion for any reason between 20-weeks and birth would take us even further away from time limits present in many countries overseas.
Sex-selective abortion legalised
Sex-selective abortion usually targets baby girls due to a preference among certain parents and some cultures for having sons.
Sex-selective abortion is not one of the criteria for abortion, so it is not legal to have a sex-selective abortion in New Zealand.
Abortion on-demand, without certification, through to 20 weeks would allow for sex-selective abortion to be available. There would be no legal grounds for a health professional to refuse to perform a sex-selective abortion. Additionally, there is no specific provision banning sex-selective abortion between 20-weeks and birth.
Concerns around sex-selective abortions were raised to the Abortion Legislation Committee – unfortunately, the Committee did not introduce an explicit ban on sex-selective abortion to the legislation. Instead, they added a single line to the Bill stating that Parliament did not approve of the practice. This line in the Bill has no legal standing and in practice makes no difference to the operation of the law.
Due to technological improvements in non-invasive pre-natal testing (NIPT), the sex of an unborn child can now be detected after 7 weeks. This means that, assuming passage of the proposed Bill, sex-selective abortion would soon become an explicit and viable possibility in New Zealand between 7 and 20 weeks gestation.
There is evidence that sex-selective abortion has been a problem in other jurisdictions where abortion has been ‘decriminalised’ and abortion is available on demand without an explicit ban on sex-selective abortion
Canada’s abortion law was struck down in 1998, introducing abortion on demand.
Sex-selective abortion has been identified as a major issue in Canada, with an article in the Canadian Medical Association Journal outlining that ‘easy access to abortion and advances in prenatal sex determination have combined to make Canada a haven for parents who would terminate female fetuses in favour of having sons…’.
Dr Mark Hobart was investigated by the Medical Board of Victoria for failing to refer a woman for a sex-selective abortion.
An investigation by Australian broadcaster SBS found a higher number of boys than girls being born in some communities in Australia.
Abortion from 20-weeks through to birth for disabilities including cleft lip, club foot and Down syndrome.
Under the proposed law the 20-week limit for disability abortions would be removed and abortion for disabilities including Down syndrome, cleft lip and club foot would be legal through to birth, under the new criteria under which an abortion can take place between 20-weeks and birth.
A similar provision in Victoria, Australia allowing abortion up to birth, has in practice allowed abortion for disabilities.
Published abortion data on late-term abortions in Victoria from The Consultative Council on Obstetric and Paediatric Mortality, shows that since the law changed in 2008, 1,685 late-term abortions (between 20-weeks gestation and birth) have been performed on babies with disabilities.
A Channel 7 news report, broadcast on April 17 2010, reported that “midwives and doctors feel traumatised” by having to perform so many late-term abortions at the Royal Women’s Hospital in Melbourne. Journalist Louise Milligan said that there had been some ‘alarming requests’ for late-term abortions, including a request for a termination at 32 weeks because the baby had a hare lip.
While unlike the proposed New Zealand law, the UK has strict laws limiting late-term abortions for any other reason, the UK does allow for abortion up to birth for disability.
In the UK, abortions are provided for disabilities including Down syndrome, cleft lip and club foot. Earlier this year a BBC report outlined that a woman had been offered an abortion for her baby who had Down syndrome at 38-weeks, three days before she gave birth.
In England and Wales, the number of abortions performed on unborn babies with cleft lip and palate has increased 150% since 2011. The data also showed that there had been a total of 223 abortions on unborn babies with cleft lip over the last 10 years.
However, the figures are likely to be even higher as abortions for cleft lip are routinely under-reported. In 2013, findings from a European register revealed that abortions for cleft lip and palate can be over ten times more common than what is being reported. Eurocat, which was set up to register congenital abnormalities across 23 countries, found that 157 unborn babies with the condition, were aborted in England and Wales between 2006 and 2010. The UK Department of Health only recorded 14 such abortions during that time, but admitted in a 2014 report that some disability abortions had been wrongly recorded.
Joan Morris, national coordinator for Eurocat and professor of medical statistics at Queen Mary, University of London, said the group also found the number of babies aborted in 2010 for Down syndrome was double that recorded officially – 886 compared to 482.
There will be no requirement that a doctor must be involved with providing an abortion.
Under the current law, abortions can only be performed by a doctor (medical professional).
School nurses and midwives could carry out abortions without a trained doctor present, in case of a complication.
Having doctors perform abortions is a vital safeguard that ensures the safety of women.
No legal requirement that babies born alive are given medical support.
At committee stage of the Abortion Legislation Bill, Simon O’Connor MP brought forward an amendment to the Bill to require health professionals to give medical help to babies born alive after ‘failed’ abortions. This amendment was voted down by 80 to 37 votes, so will not be part of the Bill.
The amendment would have required that if a baby was born alive following a failed abortion, a qualified health practitioner or any other health practitioner present at the time the child is born, would have a duty to provide the child with appropriate medical care and treatment.
It would have also have required the medical care and treatment of a child born as a result of a failed abortion to be no different than the duty to provide medical care and treatment to a child born other than as a result of an abortion.
Data from the few other countries where there are similar extreme abortion laws to the one proposed in New Zealand shows that it is likely that many more babies will be born alive following abortions, as it will in practice allow abortion for any reason between 20-weeks and birth – when unborn children are much more likely to survive a ‘failed’ abortion.
A similar law in Victoria, Australia allows for abortion right through to birth on physical, psychological and social grounds when approved by two doctors; this can be the abortion operating surgeon and anaesthetist.
The Victorian Consultative Council on Obstetric and Paediatric Mortality and Morbidity reported that in 2012 there were 53 ‘terminations of pregnancy’ after 20 weeks ‘resulting in live birth’.
By contrast, a 2008 report for England and Wales, where abortions are highly restricted later in pregnancy, found that 66 infants were born alive after NHS terminations in one year. While these figures are comparable in number, Victoria’s population of 6.36 million is just a tenth of the size of the population in England and Wales.
This demonstrates the scale of ‘failed’ abortions that could take place under the proposed law in New Zealand, resulting in an unborn child surviving the abortion.
No legal requirement that pain relief be given to babies being aborted between 20-weeks and birth.
At committee stage of the Abortion Legislation Bill, Agnes Loheni MP tabled an amendment requiring that pain relief be given to babies being aborted between 20-weeks and birth.
The amendment would have added a new requirement for abortion procedures post-20 week to ensure that the unborn child does not feel pain, bringing the legislation in line with New Zealand’s Animal Welfare Act which requires vets to ensure that animals don’t feel pain.
This amendment was voted down by Parliament so will not be part of the Bill.
This was an important amendment given recent developments on the understanding of fetal pain and developments in practice regarding babies undergoing surgery for spina bifida.
In a recent article, published in the influential Journal of Medical Ethics, two medical researchers, including a ‘pro-choice’ British pain expert who used to think there was no chance unborn babies could feel pain before 24-weeks, say there is now “good evidence” that the brain and nervous system, which start developing at 12 weeks gestation, are sufficient enough for the baby to feel pain.
A national survey of French prenatal diagnosis centres has revealed that for late-term abortions 97% of abortion clinics or hospitals surveyed will always give unborn babies pain relief prior to administering a lethal injection that induces a heart attack (known as feticide). This is done in accordance with the guidelines of the French College of Obstetricians and Gynaecologists which states: [English translation]: “Fetal analgesia is justified by pain stimulation in case of an intracardiac puncture, but also because the injection of KCl [potassium chloride] or death itself can be painful.”
No legal restrictions on controversial methods of abortion such as intact dilation and extraction abortions (also knows as partial-birth abortions).
This could allow for the use of particularly gruesome abortion methods such intact dilation and extraction abortions (also knows as partial-birth abortions) and other controversial methods of abortion.
This is particularly important given the Bill will, in practice, allow for abortion up to birth and that overseas evidence shows that similar provisions have allowed for a large number of abortions to happen between 20-weeks and birth. These more controversial abortion procedures are usually performed on babies at late gestations.
A ‘partial-birth’ abortion involves the following.
- Feticidal injection of digoxin or potassium chloride may be administered at the beginning of the procedure to allow for softening of the fetal bones.
- During the procedure, the fetus is removed in a breech position.
- If the baby’s skull is too large to fit through the birth canal, it is crushed to allow the skull to be removed. Decompression of the skull can be accomplished by incision and suction of the contents, or by using forceps.