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Right to Life v Women
of New Zealand:
Update

By ALRANZ
An update on the Right to Life case: 10 October 2010

This account includes the following:
1. INTRODUCTION 2. THE JUDGES AND LAWYERS 3. THE ARGUMENTS 4. CROWN/ASC APPEAL OF MILLER (i) Summary of 2008 Miller Ruling (ii) Crown/ASC’s Arguments (iii) Comment 5. THE CROSS APPEAL (i) Right to Life of Fetus (a) RTL’s Case (b) Crown/ASC Response (ii) Counselling (a) RTL’s Case (b) Crown/ASC Response (ii) Relief 6. WHAT NOW?

1. Intorduction

This summary of the latest round of the long-running Right to Life v Abortion Supervisory Committee case is based on (a) reports from ALRANZ members who attended the most recent hearing on 5-6 October 2010, (b) media accounts, and (c) some of the written submissions to the court by the parties involved.

ALRANZ members attended the latest hearing in this case, from 10am to 4pm on Tuesday and Wednesday 5-6 October 2010 at the Court of Appeal in Wellington. The case has now been running for more than five years, has involved 11 judges and cost the state hundreds of thousands of dollars to defend.
Background and a timeline of the case so far.

The October 2010 hearing had two aspects to it.

(1). The Abortion Supervisory Committee was appealing a 2008 ruling by Justice Miller in which he, among other things, questioned the legality of the 98 percent of abortions performed on mental health grounds.

(2). Right to Life was cross-appealing (with the ASC responding) the court’s refusal to make any declarations (essentially, to order anything be done) and re-stating its original claims including that the fetus has a right to life that outweighs the rights of the mother and that counselling services should be independent of abortion providers.


2. The Judges and Lawyers

The three Appeal Court judges were:

The Honourable Justice Chambers

Justice Robert Chambers graduated LLB (Hons) from the University of Auckland in 1975 and in 1978 gained a doctorate from the University of Oxford. He commenced practice as a barrister in 1981 and was appointed a Queen’s Counsel in 1992. He was appointed to the High Court in 1999, and to the Court of Appeal in January 2004.

Justice Chambers is the only one who was at the previous hearing in the Appeal Court, a half day hearing in May 2009 when the case was referred back to the High Court. This time he had the major role as the lead judge and asked a lot of questions of both sides.

The Honourable Justice Arnold

Justice Terence Arnold graduated from Victoria University (BA and LLM) and New York University (LLM). He taught criminal law at Victoria University in Wellington as well as at several Canadian universities, including Dalhousie University and the University of Calgary. He was a partner of Chapman Tripp Sheffield Young between 1985 and 1994. He became a barrister sole in 1994 and shortly thereafter, was appointed Queen’s Counsel. He was Solicitor-General between 2000 and 2006. He was appointed a judge of the High Court and the Court of Appeal in May 2006.

The Honourable Justice Stevens

Justice Stevens graduated BA LLB (Hons) from the University of Auckland in 1970, and obtained a Bachelor of Civil Law from Oxford University in 1972. He was Crown prosecutor and a partner at Meredith Connell & Co from 1975, leaving to join Russell McVeagh McKenzie Bartleet & Co as a partner in 1980. In 1992, Justice Stevens went to the Bar and he was appointed Queen’s Counsel in 1997. During his career he was also admitted as a barrister and solicitor of the Australian Capital Territory and the States of Victoria and New South Wales and was also a barrister in Samoa and the Cook Islands. He was appointed a High Court Judge based in Auckland in July 2006 and a Court of Appeal Judge on 1 July 2010.

Right to Life was represented, as they have been all along, by Peter McKenzie QC and Ian Bassett.

The Abortion Supervisory Committee was represented, as they have been all along, by Crown lawyers Cheryl Gwyn and Wendy Aldred. Sally McKechnie of Crown Law was co-author of the written submission and sat in on the case.

Both sides had already presented written submissions. The judges set the ground rules for oral submissions with ASC on the first day and RTL on the second day with Cheryl Gwyn and Wendy Aldred given 20 minutes for right of reply at the end of the second day.


3. The Arguments:


(i) The Main Issues

The three main issues that have been canvassed now for more than 5 years remain the same:

(1) The role of the ASC, its powers and functions especially in regard to supervision of the certifying consultants (two certifying consultants must approve every abortion before it can be performed and must do so under grounds laid out in the Crimes Act.) For background info on how the law works click here.

(2) Counselling and whether or not it should be independent of the licensed institution.

(3) The right to life of the fetus.


4. ASC’s appeal od Miller

One part of the most recent hearing focused on the Crown/ASC’s appeal of the 2008 judgment by Justice Miller.

(i) Summary of 2008 Miller Ruling

The Crown (ASC lawyers) summarised the relevant aspects of the 2008 Miller ruling as follows:

• The Judge found that there “was reason to doubt the lawfulness” of many abortions authorised by certifying consultants.

• The Judge accepted RTL’s argument that the Committee had construed its functions of “review” too narrowly, in particular by refusing to scrutinize the decisions of certifying consultants.

• The Judge rejected RTL’s allegations that in interpreting its functions under the Act, the Committee was required to have regard to the rights of the unborn child.

• The Judge confirmed that the fetus has no legally enforceable right to life in New Zealand law.

• The Judge dismissed RTL’s claims in relation to the ASC’s performance of its functions relating to the provision of counselling services for women seeking an abortion.

• After a separate hearing on the question of relief, the Court declined to make declarations against the Crown/ASC


(ii) Crown/ASC’s Arguments

• First, the Crown/ASC argued that the question of whether or not certifying consultants are obeying the abortion law was not a question posed in RTL’s original judicial review application, which focused on whether or not the ASC was exercising its statutory powers and functions. Not only that, but it’s not an issue the court has jurisdiction to consider, since it raises issues of criminal liability in a civil proceeding and one where certifying consultants were not even a party to the case.

• On Miller’s “reason to doubt lawfulness” of many abortions:

The Crown/ASC argued that the judge’s findings were made without evidential foundation, and instead were based on the judge’s inferences from bare statistics (for example, the “high” approval rate for abortions), together with comments made by past ASC’s that they did not consider certifying consultants were applying the law in the way Parliament intended.

• On ASC’s “review” function:

The Crown/ASC argued that Justice Miller was wrong about the scope of the ASC’s powers to review the decisions of certifying consultants. It went to some lengths to challenge his statements that the ASC “may form its own opinion about the lawfulness of consultants’ decisions” and that the ASC might be required to “demand reports about consultants’ decisions, including where necessary decisions in particular cases”. On these, the Crown/ASC argued that these conclusions were inconsistent with the law, with what the judge himself had accepted regarding the law and with the crucial 1982 Wall v Livingston case. (That case essentially decided that the authorization of an abortion must be left entirely to certifying consultants.)

The Crown/ASC pointed out that given that the ASC can’t obtain patient records and can’t examine patients, it can’t revisit the correctness or otherwise of a medical judgment. Furthermore, if certifying consultant were considered to be acting unlawfully it was agreed that the correct channel should be referral to the police, the Health and Disability Commissioner or the medical Disciplinary Committee as appropriate.

• On Costs:

The Crown/ASC also argued that the judge erred in awarding costs to RTL, citing the fact that the ASC had had a greater degree of success, or at the very least, each party had had similar success.


(iii) Comment

It is interesting to note that even though in 2008 Justice Miller reached no formal conclusion on whether or not certifying consultants were complying with the law, the Crown/ASC argued that his statement questioning the “lawfulness” of abortions, if left to stand, could have serious repercussions for certifying consultants and the administration of the abortion law.

The Crown/ASC argued it could, among other things, harm reputations and have possible legal consequences for certifying consultants; it could disrupt the provision of abortion services and the willingness of doctors to become certifying consultants; and it raises the possibility of “defensive practice” by certifying consultants.

Furthermore there were no procedures in the CS&A Act by which a certifying consultant could appeal against any decision made against him or her, and this deficiency was a matter of fairness and justice.


5. The Cross Appeal

(i) Right to Life of Fetus

(a) RTL’s Case

In the court itself during the hearing, a great deal of time was spent on the rights of the fetus, even though Justice Miller had already ruled against RTL on this matter in 2008 stating that:


The abortion law neither confers nor recognises a legal right to life for the unborn child; that is so because the abortion law imposes no duty on the mother, or any other actor in the abortion process, to protect the life of the unborn child and does not recognise a child as a person until it is born alive. Nor does s8 of the New Zealand Bill of Rights Act 1990, which recognises a right to life, apply to the unborn child.




However, Miller in 2008 went on to say that “the legislature has recognised, through the abortion law, that the unborn child has a claim on the conscience of the community, and not merely that of the mother”, so RTL decided to revisit the issue.

Indeed RTL spends about half of its 75-page cross-appeal on this issue, and we won’t canvas much of it here.

According to those in the court, Section 8 of the NZ Bill of Rights Act 1990 was central to RTL’s claim, and that is borne out in the appeal document. That section of the BORA says:


No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.




RTL argued that this section “protects human life in all its developmental stages, including the life of the unborn child.”

RTL also appealed to international conventions and continued to rely heavily on the 1977 Royal Commission report to support its case. It also cited the long title of CSA Act arguing that Parliament “specifically declared in its long title that the unborn child has rights and that those rights are relevant in the context of abortion and the CSA Act.” (You can read the long title .)

Throughout its argument, RTL reiterates that it is the fetus that under the law has “the primary protected position”, giving the mother a “secondary restricted right to seek a lawful abortion”.

It also states: “The child immediately after birth is qualitatively the same as he or she was immediately prior to birth- he or she has just changed location.”

RTL also spends considerable time challenging the “born alive” rule, on which New Zealand courts have relied and which essentially means that the fetus does not enjoy any legally enforceable rights until birth. In its challenge on this point, RTL invoked Nazi Germany and slave-holding America.

(b) Crown/ASC Response

The Crown/ASC defended the “born alive” rule, arguing that New Zealand courts have consistently held this to apply, to the effect that the fetus does not enjoy any legally enforceable rights until birth.

In response to the “change of location” claim, the Crown/ASC pointed out the obvious:

“This assertion, with respect, ignores the fact that prior to birth, the fetus is inside of its mother, and thus another set of interests is profoundly affected.”

Indeed, the woman features hardly at all in the RTL case, other than as having rights that must always be secondary to those of the fetus.

The Crown/ASC contended that much of RTL’s case regarding the right to life of the fetus was based on the erroneous argument that by creating the offence of killing a fetus, Parliament intended to confer a legal right to life upon the fetus.

(ii) Counselling:

(a) RTL Case

In its cross appeal, RTL also challenged Justice Miller’s finding that counselling services are not required to be independent of licensed abortion providers. RTL itself acknowledges that the CSA Act is silent on whether counselling services are required to be independent of licensed institutions, just stating that “sufficient and adequate facilities” be available. RTL argued that to be “sufficient and adequate” the counselling must be independent. Here it relied extensively to the Royal Commission report.

(b) Crown/ASC response:

The Crown/ASC made the obvious rejoinder on counselling that while the Royal Commission might have favoured “independent” counselling, Parliament

“decided not to adopt the Royal Commission's recommendations in that regard.” It also argued that the independence of counsellors is assured by the requirements of their own codes of ethics and professional standards.

(ii) Relief

RTL also challenged Justice Miller’s refusal to grant relief (i.e to tell the ASC what to do).

The Crown/ASC noted that the draft orders supplied by RTL (which have not been made available, but which Crown/ASC discussed in some detail) focus almost exclusively on critical scrutiny of certifying consultants and the sanctions available to the ASC.

The Crown/ASC argued that RTL’s orders “would have the effect of placing the Committee under the ongoing supervision of the Court”, would essentially rewrite the abortion laws and open the ASC up to ongoing requests from interest groups to review decisions of particular consultants.

According to those in the court, Justice Chambers grilled RTL about the remedies they wanted and, like Justice Miller, appeared not to favour RTL’s draft declarations or orders.


6. WHAT NOW?

Justice Chambers aims to have the Appeal Court opinion before Christmas or early next year. If it is unfavourable to RTL, the next step would be the Supreme Court but that is not automatic.

ENDS