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Abortion And the Law: A User’s Guide

Grace Millar



When New Zealand’s abortion laws were passed they were considered some of the most restrictive in the OECD. Now we still have the same laws, but most women can get an abortion when they need one. This article will look at the abortion laws and the way they work, from the point of view for a woman who has decided to have an abortion.

If you’ve had unprotected sex then the morning after pill is available from student health for low, or no, cost. The morning after pill is also available from a pharmacy without a prescription – where it would cost $35.
Half of all women who have abortions in New Zealand were using contraception, so the morning after pill is not enough. It’s important that women know the process of having an abortion, because the earlier you have an abortion, the easier and safer it is.
For most students who think they might be pregnant, the first place to visit is Student Health. If you think you might be pregnant, you don’t need to buy a pregnancy test kit – student health will do it for the cost of a doctor’s visit. If you are pregnant then all doctor’s visits and blood tests are free under maternity coverage, even if you’re planning to have an abortion (unless you’re an international student – see later in this article).
At Student Health you will see a doctor or a nurse. Either can test for pregnancy, but only doctors can make referrals. There is a possibility that the doctor you see will refuse to give you a referral on the grounds of conscience. At the moment there’s only one person at Student Health who takes up this option.
You will need blood tests, which are free, and you may need a pregnancy scan, which costs $35. You only need a pregnancy scan if the doctor is unsure about your dates or if you want to have a medical abortion. Otherwise you can save the $35. You will also need a doctor’s referral to Level J.
What is Level J? The Level J Unit is the euphemistically named abortion service in Wellington. It’s on Level J of the Grace Neill block in the hospital (hence the name). It provides first trimester abortions for women who live as far away as Wanganui and Dannevirke, and second trimester abortions for women even further away – Gisborne and Nelson.
Level J is like any other hospital ward, but more secure. The glass is clouded and you have to be let in through an intercom. This is partly to protect women’s privacy; when you go in you give them a list of people who can be given information about you. Other people won’t even be told you were there. Some women have family members who aren’t supportive. Anti-abortion protesters aren’t that much of an issue. There is one man with a sign who stands outside the main entrance, but he is not allowed on hospital property, so he’s easy to ignore.
At Level J they work hard to provide you with what you need. You can get a medical certificate that won’t mention abortion to give to your tutor or boss. They try and make the laws work for women, but they can’t avoid the bureaucracy that is written into legislation.
Wellington women have a choice between medical and surgical abortion for early abortions. For a medical abortion women take two sets of pills, either twenty-four or forty-eight hours apart. In other countries medical abortions allow women to have the abortion in their own home. In New Zealand abortions have to happen in a licensed clinic, so women are not able to take the pills home.
Most abortions in New Zealand are surgical abortions. Up to 14 weeks surgical abortion is done under local anaesthetic at the Level J Unit. Between 14 and 19 weeks one day abortions are usually done under general anesthetic. After 19 weeks one day abortion is not available in Wellington, except under grounds of fetal abnormality.
If you’re having an abortion you need to have two appointments on two days, each of which take about half a day and there’s usually a waiting time between five and seven days between each appointment. In the first appointment you see a counsellor and a Certifying Consultant, who is a specially licensed doctor who will judge whether or not you meet the criteria for a legal abortion. Certifying Consultants are considered the only people wise enough to decide whether or not a woman shall be granted an abortion.
The criteria for abortion are contained in the Crimes Act. In New Zealand, in order to get a legal abortion a woman must fit one of the following criteria:
That the continuance of the pregnancy would result in serious danger (not being danger normally attendant upon childbirth) to the life, or to the physical or mental health, of the woman or girl;
That there is a substantial risk that the child, if born, would be so physically or mentally abnormal as to be seriously handicapped;
That the pregnancy is the result of incest;
That the woman or girl is severely subnormal.
If you have an abortion it’ll almost certainly be under the mental health provisions of the first criteria, like 98.7% of the other abortions that are performed in New Zealand. While the criteria sound, and were meant to be, restrictive and intimidating, Catherine Nelson, the education nurse at Student Health, has never heard of a woman who has been refused when she is sure she wants an abortion. At the moment all the Certifying Consultants do is add time and stress to the process.
How did we get here? With Certifying Consultants and the mental health problems and abortion rules no-one follows? Before the 1970s, options for legal abortion in New Zealand were severely limited; almost all women went to Australia or used back street abortionists. The law then was, as it is now, that abortion is a crime unless continuing the pregnancy was a danger to the woman’s life or health, including mental health.
In 1974, the Auckland Medical Aid Clinic opened. This was an abortion clinic that ignored New Zealand’s abortion law or interpreted the mental health provisions very liberally. The central question was (and pretty much still is) what the health of the mother meant – how dire did the health consequences of continuing a pregnancy have to be before abortion could be granted? AMAC’s doctors took the position that any unwanted pregnancy was a mental health hazard, and was able to provide first trimester abortions to most women who approached them. AMAC received a lot of official attention after it opened. In the first three years AMAC was open there was a prosecution, a Royal Commission, and three bits of legislation, all in response to AMAC providing abortions to New Zealand women.
The legislation we’ve got now is the Contraception, Sterilisation and Abortion Act. It was passed in 1977, and still applies, with some minor amendments. The legislation was passed under urgency through the night on 13 December.
In the early hours of the morning Parliament decided that the fact that a pregnancy was the result of rape would not be grounds for abortion, but graciously allowed doctors to take this into consideration in deciding if a pregnancy would damage a woman’s mental health. In the language of the Royal Commission on Contraception, Sterilisation and Abortion: “If the decision [to grant an abortion in cases of rape] is to rest on the claim of the complainant herself that she has been raped, it may fairly be expected that complaints of rape will readily be made.”
This law was an attempt to severely restrict and control access to abortion. Certifying Consultants were supposed to act as gatekeepers and restrict women’s access to abortion.
The effect of this legislation was that AMAC stopped offering abortions the day after the CS&A act was passed, as they could no longer do so within the law. For pregnant women who needed an abortion the only solution was to fly to Australia, a three-hour plane ride and $500 away (that’d be $2,500 in today’s equivalent). Feminists in Auckland, Christchurch, Wellington, Dunedin and Hamilton set up SOS (Sisters Overseas Service) groups, to help women get to Australia for abortions. Just three weeks after AMAC closed, on 4 January 1978, the first SOS organised group of women left for Australia.
Two months after the act was passed, SOS Auckland offered air bookings, appointments with Sydney clinics, escort at Auckland and Sydney airports, assistance with passports, overnight accommodation in Auckland, referrals to sympathetic doctors, non-directive counselling, and reduced rates at hotels.
The law has not changed substantially since 50 women a week were flying to Australia to have an abortion. What has changed is the way the law is applied. As Dr Margaret Sparrow, who did the first abortion in Wellington’s abortion clinic, said: “We took the attitude, well that’s the law, we’ll work within the law, we’ll make people fit.” Across the country people who believed women should have access to abortion tried to get women access to abortion under our current laws.
So it could be worse. It’s thanks to a lot of hard fighting that students who are pregnant are facing the possibility of two trips to Newtown, rather than a trip to Auckland or Australia.
But these delays do matter. Margaret Sparrow said: “Internationally we don’t look very good, because most of our abortions are done after 8 weeks. If you really care about women and women’s health you should do abortions as early as possible.” Abortion is a relatively safe procedure, but the earlier in the pregnancy the abortion is performed, the safer it is. In addition to that, as anyone who has ever been pregnant will tell you, the first trimester of pregnancy can be very uncomfortable. Women who are being forced to wait for abortion may be facing morning sickness and other side effects of pregnancy.
Last year an international student in Dunedin gave birth in a toilet and abandoned the baby in a shopping bag. Other international students have been charged with illegally distributing Mibestrofone, the drug that induces abortion. International students often don’t have access to abortion because they have to pay the full cost.
Until October 2003, anyone on a student visa received the same health care as any New Zealand citizen or resident. Now international students have to get health insurance and Student Safe, the university’s insurance plan, does not cover abortion.
This means that international students have to pay the full cost of an abortion. In Wellington abortion costs $850 before 14 weeks and $1,650 after. This has to be paid in full on the day of the abortion.
International students are eligible for the University Hardship Fund. While the finance advisers who administer the fund weren’t prepared to comment on hypothetical cases, medical costs are part of the hardship fund’s criteria. The insurance broker for Student Safe said that the plan could be renegotiated to include abortion, but that hasn’t happened yet.