Liability for Abortion Providers

The liberal interpretation of the laws pertaining to abortion in New Zealand may leave some consultants and abortionists liable to criminal procedings and civil claims.

  • Most abortions (around 98%) are done for 'serious danger to the life or to the physical or mental health of the mother.'
  • The courts are unlikely to allow the use of this clause to allow abortions for socio-economic reasons or abortion on demand.
  • A breach of the right to make an informed choice could see consultant and abortionists face complaint proceedings.
  • The Complaints Review Tribunal can award damages up to $200,000.
The law governing the provision of abortion is covered by the Crimes Act and the 1977 Contraception, Sterilisation and Abortion (CS&A) Act.

Liability of Health Professionals for a Breach of the Abortion Law of New Zealand

In 2001, the Journal of Law and Medicine, published a commentary by a New Zealand barrister under the above heading. He wrote:

"The abortion law of New Zealand appears to have been interpreted very liberally over recent years by sectors of the medical profession. Indeed the interpretation of the law appears to have been so liberal that it raises questions as to the lawfulness of many of the abortions carried out in New Zealand.

"The current practice and application of the abortion law is such that it may expose some medical consultants certifying and performing abortions to criminal proceedings and civil claims."

The article, an edited verion of which was published in (2001) 9 Journal of Law & Medicine 115, was written with the intention of alerting health professionals of the risk of criminal and civil liability as a result of performing abortions in breach of the current New Zealand Law.

Key points
  • The Abortion Supervisory Committee's (ASC) annual reports to Parliament have consistently shown that since 1979, the large majority of abortions have been certified and carried out on the grounds of serious danger to the mental health of the woman, pursuant to section 187A (1)(a) of the Crimes Act 1961.
  • Civil and criminal liability for a breach of the abortion law may arise if health professionals knowingly misapply section 187A (1)(a), so as to certify abortions in the absence of proper legal and factual grounds for doing so.
  • It is unlikely that section 187A (1)(a) of the Crimes Act would be construed by the courts to allow consultants to interpret the CS&A Act's "serious danger to the life or to the physical or mental health of the woman", as effectively permitting abortion on demand. Or abortion on purely socio-economic grounds, or any interpretation close to that.
  • The NZ Court of Appeal in Wall v Livingston, declined to review or second guess the professional opinions of certifying consultants in this area, save for the exception of bad faith. Bad faith in this context would involve certification of an abortion by a consultant who knew that there was no legal or factual basis for certification within section 187A (1)(a) or (3) of the Crimes Act.
  • Bad faith could be shown if consultants certified abortions knowing there was no evidence upon which they could honestly form a professional opinion that there would be serious danger to the life, or to the physical or mental health of the woman if the pregnancy continued.
  • Bad faith by consultants in the exercise of their statutory duty, may expose them to civil liability and criminal prosecution.
Civil liability
Consultants who certified or performed an abortion knowing it to be unlawful, could face complaint proceedings to the Complaints Review Tribunal for breaches of the Code of Health and Disability Services Consumers' Rights.

The Code provides for the woman to be fully informed, the right to make an informed choice and give informed consent. These rights may have been breached by the consultants, or other responsible health care personnel involved in the process.

The Complaints Review Tribunal can award a wide range of remedies, including damages up to $200,000.

The Heath and Disability Commissioner Act
The Health and Disability Commissioner Act 1994 is a key element in the new environment of consumer-focused and consumer-accountable health and disability services and has become the primary vehicle for dealing with complaints about any health or disability services provider in New Zealand.

The purpose of the Act is expressed as being "to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights" (s 6).

This objective is achieved through the implementation of a Code of Rights, the establishment of a complaints process to ensure enforcement of those rights, and the ongoing education of providers and consumers.
The Code of Health and Disability Services Consumers' Rights

Preventing "Backstreet" Abortions
Whenever there is talk of limiting access to abortion, abortion advocates bring up the spectre of women endangering themselves by resorting to illegal "backstreet" abortions.

Records show that death rates from illegal abortions were falling before women had access to legal abortion. The case was the same for deaths from childbirth and had a lot to do with antibiotics and advances in medicine in general.

Abortion opponents in America believe that if it is possible to show the Supreme Court how such a return to illegal abortions can be prevented, then the Court will be more inclined to reconsider the facts that led to the Roe v. Wade decision.

In February 2005, Norma McCorvey, the "Roe" of Roe v. Wade, once again attempted to challenge the case that legalised abortion in the U.S. during all nine months of pregnancy. McCorvey hoped to have the court overturn the decision based on new evidence of abortion's adverse impact on women.

Read what solution is being proposed for the prevention of illegal abortions here.