Thursday, June 2, 2011

Abortion Supervisory Committee v Right to Life New Zealand Inc

I'm going to start this post with a disclaimer:
a) I'm not a lawyer; I'm a law student, so I've got some experience reading and analysing case law, and I'm familiar with the workings of Parliament and the courts - but obviously there are a lot of people with much more experience and subject-matter expertise than I have; and
b) this was written in less than a day; I haven't taken a lot of time to really consider the issues. This is a "first reading" sort of response; and
c) my own views on abortion can be found here.

And a few notes on terminology:
Numbers in brackets (eg [1]) refer to the paragraph of the Court of Appeal judgment unless stated otherwise (a PDF of the whole thing can be found here on the Court of Appeal website.)
"s" means "section" [of the Act]

I: the "live birth" bit - foetuses, unborn children, and the New Zealand Bill of Rights Act 1990
The starting point here has to be the old common law "born alive" rule. That is, in essence, that the foetus has no legally enforceable rights until born alive. [52] (The Court of Appeal also notes at [59] that the authoritative New Zealand case which discusses this rule is Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA). I haven't read that case, but it's probably available online somewhere.)

The reason foetuses have no legally enforceable rights until they are born alive is that they are totally inseparable from their mothers. And of course "legally enforceable rights" doesn't just include things like the right to life; it also would include things like the right to inherit property or to sue for negligence or to enter into a contract for the purchase of goods - things which it is totally ridiculous to think of a foetus doing.

Right to Life, in their defence, hasn't posited that the "born alive" rule should be completely discarded; as discussed at [51], RTL submits that the foetus has a fundamental right to life which trumps the "born alive" rule only to the extent of the right.

The Court of Appeal doesn't agree. At [59]: "We do not consider that this is an appropriate occasion on which to embark on a detailed discussion of the born alive rule. [...] For present purposes, we simply reject the submissions advanced by RTL under this ground of the cross-appeal."

Section 8 of the New Zealand Bill of Rights Act 1990 states "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."

BORA also gives a bunch of other rights to people (and most of the sections start with "No one"): freedom of association, freedom of expression, right not to be subject to torture or cruel treatment. As Miller J (the High Court Judge) said at [99] of his judgment (at [62] of the Court of Appeal judgment), "very few of the rights mentioned in the Act could possibly be exercised by or on behalf of an unborn child. [...] its rights would be inseparable from those of the mother. And the right to be free of unwanted medical treatment could not sensibly be asserted on behalf of the unborn child independently of the mother. Who, if not the mother, would speak for it, and if their interests were in conflict how would those interests be reconciled?" (emphasis mine).

Essentially, both the High Court and the Court of Appeal find a) foetuses don't have a right to life under BORA, and b) it wouldn't make any sense for Parliament to have intended foetuses to have a right to life under BORA, given the way it's drafted. So RTL loses on that ground too.

I'm totally unsurprised by what the Court of Appeal found on these parts of the claim. It's not a radical, activist decision; it's actually pretty conservative, given that the "born alive" rule has existed in the common law for hundreds of years, that under s 159 of the Crimes Act a child becomes a human being for the purposes of the Act once it has been born alive, and that it'd be nigh on impossible to read BORA in a way that sensibly gave rights to both foetuses and the pregnant women who contain them.

Also: this part of the judgment (all the bits about the law recognising a right to life on the part of foetuses) is unanimous (so, all three Judges agreed) and consistent with what Miller J found in the High Court.

Where the Judges disagreed is on what the role of the Committee is, and whether they (and the certifying consultants) are doing their jobs properly. Without further ado:

II: Are certifying consultants obeying the abortion law? The majority approach:
The main thrust of the Committee's submissions about this (paras [83] to [88]) is:
a) the Committee does not get, and cannot get, detailed case summaries of individual instances of women who get certification to receive an abortion. They also don't have access to any of the women (in order to take interviews, for example).
b) the role of the Committee is to ensure that there's a consistent approach to accessing abortion throughout the country: making sure there's enough certifying consultants and that they make more or less consistent decisions.
c) the Committee is also responsible for making reports to Parliament about how many abortions are occurring, who is having them, and whether the law is working well.

It's worth noting here that section 30(5) of the Contraception, Sterilisation, and Abortion Act 1977 provides that, when the Committee is deciding who to appoint as certifying consultants under the Act, the following views [held by medical practitioners] are incompatible with being a certifying consultant:
(a) [believing] that an abortion should not be performed in any circumstances:
(b) [believing] that the question of whether an abortion should or should not be performed in any case is entirely a matter for the woman and a doctor to decide.

So, assuming that the Committee is doing their job properly (and the Court of Appeal thinks that they are), there aren't any hardline "abortions for everyone who wants one!" people working as certifying consultants anyway. So there, RTL!

RTL, on the other hand, thinks that the Committee should be able to require certifying consultants to keep a detailed record of the diagnoses (under what ground women are certified able to have an abortion) and "their severity". And a bunch of other stuff I can't be bothered typing out - see paras [89] to [94].

What the majority held, at [100], is:

"We are satisfied that none of the functions or powers of the Committee, as set out in ss 14(1)(a)(i) or (k), s 36 or any of the statutory provisions relied on by RTL, either singly or in combination, empower the Committee to review or scruitinise the decisions of certifying consultants in relation to either the authorisation or refusal of an abortion in individual cases. It follows that it is not open to the Committee to form its own opinion about the lawfulness, including the clinical correctness, of the decisions of the certifying consultants in particular cases."

And at [101], "we consider that the Act characterises the decision of certifying consultants as a "medical assessment pure and simple". The legislation has been careful to immunise the Committee from involvement in decisions made by health professionals on medical and clinical grounds in particular cases."

That's pretty unequivocal.

On the subject of it being "a medical assessment pure and simple", the Court noted at [32] that "there is no right of review, either by the Committee or anyone else, of the decision of the certifying consultants. This is the case, even though the woman herself may wish to review a decision determining that the case for authorising the performance of an abortion had not been made out." (emphasis mine)

The right to review is a pretty fundamental part of legal processes. The fact that you can't appeal a decision made by a certifying consultant really does highlight that it's a medical decision rather than a legal one. And, you know, there is a strong case that it should be a legal decision, as in "you have the right to have an abortion!" but that's not what the law says at the moment.

The only purpose I can see of the Committee collecting and reporting on detailed medical information of women who (attempt to) get certification for an abortion is in order to further political goals. The majority notes at [103] that professional obligations require medical practitioners to keep detailed records of cases anyway, and that those obligations are enforced by the Health and Disability Commissioner (along with other medical authorities).

Say the Committee were to, for example, keep detailed records on why women received abortions on mental health grounds, and then present reports to Parliament with statements like "X% of abortions are performed because otherwise the woman would be a little bit depressed" or whatever - insert more appropriate language if you like. That isn't a medical opinion; it doesn't give nearly enough detail for that. It's a political opinion, and a political statement, and it has social and political history behind it, and this is why the Committee doesn't present Parliament with statements like that.

(I'm leaving out the minority opinion of Arnold J - you can find it from para [154] of the judgment.)

III: the majority overturns certain findings and observations of Miller J
The really controversial part of Miller J's judgment in the High Court was about whether some abortions performed in New Zealand were actually legal.

Miller J commented at [56] of the High Court judgment (quoted at [132] of the Court of Appeal decision) that:
"The approval rate [of certifications] seems remarkably high, bearing in mind that under s 187A the consultants must form the good faith opinion that continuance of the pregnancy would result in serious danger to the mother's health."

And here's the part of the Court of Appeal judgment that pro-choice people should be pleased by, and I'm quoting it in full because it's very definite and on our side:

[133] It has not been necessary for us to consider the evidence on this aspect of the case. We merely record that Ms Gwyn submits that Miller J's statements were expressed in sufficiently definite terms as to have serious potential repercussions for certifying consultants and the administration of the abortion law.

[134] Given our conclusions on the nature and scope of the Committee's functions and powers, we consider that factual findings or observations of the type made by Miller J were inappropriate. No such findings should have been made.

(emphasis mine) And:

[136] With respect to the finding that cast doubt on the lawfulness of the decisions of the certifying consultants, given the conclusions we have reached on the main ground of appeal, such findings ought not to have been made. We consider that the appropriate channels of investigation would involve either a complaint by a patient or potentially by the Committee itself, in which case the Health and Disability Commissioner would become involved. Alternatively there might be a complaint to the police, in which case the police would investigate the matter.

[137] Accordingly, we are satisfied that the findings as to lawfulness of the decision making of the certifying consultants or judicial comment about New Zealand having abortion "on request" ought not to have been made in the circumstances of this case. We conclude that they are of no lawful effect.

(emphasis mine) In short, and written in strong language for the judiciary, Miller J shouldn't have suggested that abortion was available "on request" in New Zealand, and the only people who have the right to question the decision of a certifying consultant are the patient, the Committee, or the police (if a complaint is made to them).

This is consistent with the Court's findings on certification being a medical assessment, not for some third party to question on the grounds that they think your reason for getting an abortion isn't good enough.

IV: some legal stuff
RTL probably has a right to appeal to the Supreme Court on a question of law, and they may yet do so. I'd be incredibly surprised if the Supreme Court found differently on any of the "right to life" stuff, since neither the High Court or the Court of Appeal have said anything unorthodox about it yet. The stuff about the role of the Committee is possibly a little more open to debate, particularly since there's Arnold J's dissent in the Court of Appeal.

The other interesting "law student" thing that came out of this is costs. It's pretty common in New Zealand for the losing side to have to pay the winning side's legal costs.

In the High Court, the Abortion Supervisory Committee lost, so they had to pay Right to Life's costs.

But! When ASC won at the Court of Appeal, the Court of Appeal overturned the High Court costs order and imposed a new costs order on RTL to:
- pay ASC's costs in the High Court; and
- pay ASC's costs in the Court of Appeal for a complex appeal on a band B basis

Let's just assume that's a lot of money. Court is expensive!


  1. Informative summary. Thanks!

  2. Thanks for that great summary. I'd be interested in a few legal matters because I'm not a lawyer or student of the law. As I understand it, a majority decision has as much force as a unanimous one, legally. So where does the dissenter help RTL, e.g. would the dissenter help them get the Supreme Court to take the case? Would it help them in making their case to the Supreme Court (if accepted by same)? Or not? Also, do you think the Supreme Court would be likely to take the case? Also, I assume if they decide to appeal, then the question of costs is set aside until a decision from the court, so they don't have to front up and pay now (assume same was true for ASC)? Feel free not to answer these endless questions. Am sure you're busy studying law! But if you have the time, I'd love to hear your views. Signed: Tree Climber.

  3. Thanks for all the information.

    Can I ask accortding to the High Court Judgement what are the roles of the abortion supervisory committee? If it can not supervise the certifying consultants why is it called the supervisory commitee? The impression I had was to ensure that certifying consultants are making accurate medical judgements regarding the mental health (and other) provisions. I imagine the Court of Appeal found otherwise, and that once the certifying consultants are appointed they can do whatever they like and the supervisory comittee can do nothing about it.

    The costs question is interesting. Say I take you to the high court, the high court rules in my favour and you pay me costs, but you appeal to the Court of Appeal and I don't have the money to go to the Court of Appeal, what happens? How about if I can afford the court of Appeal but can't afford to reimburse costs once the case is lost?

  4. Nicholas, Have a look at the judgment, which goes into the role of the ASC in some depth, and which is available per the link at the top of this blog. The ASC essentially supervises provision services, licensing of institutions to perform abortions and appointment of certifying consultants, among other things. Imagine what it would be like if a politically appointed committee (which the ASC is) was charged with reviewing medical decisions? It's a pretty frightening thought. In that world, the authorisation or not of abortions would be a political decision. As the judgment says, recourse over medical decisions should not be the courts', but the health and disabilities commissioner's, the health practitioners disciplinary tribunal (or the police if illegality is suspected). So to say the certifying consultants "can do whatever they like" is the same as saying your GP can "do whatever s/he likes" or your vascular surgeon can "do whatever s/he likes". Signed: Tree Climber

  5. @ Matt: thanks!

    @ Tree Climber: I don't have time to answer this in-depth, mostly because I don't really have time to do the research. But, basically - law is developed in the courts by analogy, so one side presents an argument that goes:

    A is treated in law like X.
    B (what we're arguing about) is like A because of D, E, and F.
    Therefore B should be treated in law like X.

    And so -
    1. Yes, a majority opinion has the same status as a unanimous opinion (this is why judges always sit in odd numbers - so there's always a majority).
    2. But if you're planning to appeal, having a dissent on your side in the lower court is really helpful - you'll be trying to explain to the court you're in front of why the majority was TOTALLY WRONG and the dissenting judgment was TOTALLY RIGHT.
    3. I'm not totally sure how costs work myself - all I know is that RTL apparently owes ASC like $70K now.
    4. Given how controversial a topic it is, I'd be surprised if it didn't end up in the Supreme Court.

    Hope this helps, kind of! (By which I mean: I sincerely hope it does help, but I'm not sure that it in fact will.)

    @ Nicholas O'Kane: I think Tree Climber has pretty much said what I would.

    Re: costs - thems the breaks sometimes. If you don't have the money to fight an appeal (and you're the respondent), I think you're usually able to get legal aid, but my knowledge of that is pretty sketchy.