6 - A Doctor Carries the Banner Into Parliament

Once the New Zealand battle commenced thousands came to the defence of the unborn ? some in quiet unseen ways while others fought the battle in public. But of all those who took up arms in defence of the unborn, there was no one who stood taller than the doctor turned politician who first carried the banner into Parliament.

Gerard Wall was born in Christchurch the eighth of eleven children. He came from a family with a strong social conscience where issues of the day were discussed and argued with great earnestness. When he left college he worked for a time as a law clerk and then he drifted around New Zealand trying his hand at shearing and anything else that came along. By the time he was twenty he was a medical student at Otago University. From there he went to Christchurch Public Hospital as a House Surgeon and then into general practice on the West Coast. Before travelling to Britain for specialist training he married Uru Cameron, a young Maori nurse from Northland.

As a house surgeon in Christchurch Gerard Wall was to encounter the reality of illegal abortion. One of the country's most notorious backstreet abortionists worked in the city and from time to time Dr Wall's operating lists would include women with complications resulting from attempts to interrupt their pregnancies.

Soon after their marriage, Gerard and Uru Wall travelled to England where he trained as a specialist in plastic and reparative surgery. His training was under the direction of Arch Mclndoe, a renowned New Zealander whose reputation had been established rehabilitating airmen badly injured during the Second World War.

Back in New Zealand the family settled in Christchurch for a while and then moved to Blenheim. At Wairau Hospital, Dr Wall established New Zealand's first general hospital based treatment for alcoholics and others with drug addiction health problems.  

It was in Blenheim that his years of interest in politics resulted in his selection as Labour's candidate for Marlborough in the 1966 General Elections when he stood against National's Minister of Labour, the late Tom Shand. That year he was unsuccessful but by 1969 the family had moved to Porirua, a state housing area on the outskirts of Wellington. This time he had a safe Labour seat and entered Parliament following the 1969 General Elections.

In Parliament he was very much the doctor in the House for his political colleagues, typists and other members of the Parliamentary staff. But while he had time to worry about the health of other people, his friends gave up in despair about his smoking. Everyone in Parliament knew if there was the whiff of a Turkish cigarette in the air, Gerry Wall was somewhere close by.

The Labour Government was in power when the Auckland abortion clinic opened. When the matter came before caucus the question of legislation was raised. Dr Wall wasn't convinced the time was right for legislation but could see that the initiative might be taken by somebody supporting the pro-abortion position. He wondered about the best approach.

In 1973 the Royal College of Obstetricians and Gynaecologists supported a call to restrict abortions to public hospitals. Members of the Royal College of Obstetricians and Gynaecologists had become aware of the increasing frequency with which "therapeutic" abortions were being performed in New Zealand hospitals. In 1973, the College had supported a call to restrict the practice of abortion to public hospitals. Dr Wall could see merit in this proposal. Public hospitals allowed for a greater level of public scrutiny and there was more likelihood of keeping blatantly pro-abortion doctors out of the decision-making process. Dr Wall realised that if abortions were to be restricted to public hospitals, an amendment to the Hospitals Act was needed. A bill was drawn up and it was given to an experienced Parliamentary law draftsman to ensure that the proposed measure would achieve its objective.

Labour's Prime Minister, the late Norman Kirk, supported Dr Wall's stand He had made his own position on the abortion issue abundantly clear at his Party's 1972 conference and, following the opening of the Auckland abortion clinic, had received representations from the Society for the Protection of the Unborn Child. When he was questioned at a press conference in August 1974 about the equality of the existing abortion laws Mr Kirk replied, "There is a certain amount of inequality in being killed before you are born, too."1 During 1974 the Prime Minister's wife, Ruth Kirk, became a Patron of the Society for the Protection of the Unborn Child.

 

The Hospitals Amendment Bill

On Friday 30 August 1974, the Hospitals Amendment Bill was introduced into Parliament as a private members bill in the name of Gerard Wall.  It was just three and a half months after the opening of the Auckland abortion clinic. In seeking leave to introduce his bill, Dr Wall explained that it was a narrow bill of two clauses only and its purpose was to restrict the performance of abortions to public hospitals. He made the point that other world legislatures had distinguished abortion from other surgical procedures and that it was futile to claim as some had, that it should be treated as any other surgical procedure. "It is apparent," he said, "that some form of legal control is necessary and that has been recognised throughout the world."2

Dr Wall was followed by the Leader of the Opposition, Rob Muldoon who said he was "deeply concerned about the pressure for a liberalisation of the law on abortion and even more deeply concerned about the operations of the abortion clinic in Remuera." He told the House that subject to any scrutiny in detail he could "support the bill in toto."3

It is significant that the first two politicians to speak on that August morning were Gerard Wall and Rob Muldoon. They sat on opposite sides of the chamber and their differences of opinion were numerous. Yet, from that first morning, their voices were heard regularly and in unison, defending the unborn. Whatever the political differences that separated these two men, it did not intrude into this central issue of principle.

Speaking on the opposite side of the issue that day were two men who would consistently promote the pro-abortion cause. They were the Minister of Justice, Dr Martyn Finlay and the Minister of Health, Bob Tizard. Dr Finlay made no bones about declaring his belief that New Zealand's abortion laws should be extended to cover not just the woman's physical or even mental health but the socio-economic health and well-being of the mother and of her family.4

When Richard Harrison spoke he was able to explain very lucidly what was happening. In expressing his hope that the Wall bill would pass into law he said, "I see this bill as only a short term measure to deal with the situation that has arisen in Auckland where it appears to me that the clinic is operating, if not against the letter of the law, then against the spirit of the law . . ." He went on to say, "There is widespread fear that if the clinic continues unchecked, it will lead to abortion-on-demand in New Zealand, within the law and without any change in the law."5

The support for Dr Wall's bill was substantial. Politicians grasped what was happening as a result of the activities at the Auckland abortion clinic and most of them did not like it. The bill was read a first time and it was expected that it would pass quickly into law. But fate intervened and the following evening the Prime Minister, Norman Kirk, died in hospital. The country mourned. Thousands filed passed his coffin in the entrance foyer of Parliament. Maori lamented that the mighty totara had fallen.

Within days Labour gathered to elect their new leader and so Bill Rowling became Prime Minister. The abortion issue slipped from prominence and the Wall bill was moved down the Order Paper. It was eight months before the bill was back in the House and then the Auckland abortion clinic had been in operation for eleven months. It had gained a secure foothold with some doctors who not only tolerated it but actively welcomed its presence.

Between the first and second reading of the Wall bill an obstacle that gathered support centred on the the role of private hospitals. A number of politicians argued that provision should be made to license some private hospitals and the proposal gathered support. It began to appear that the original bill would not gain majority support unless it carried some provision to license private hospitals.

The public galleries in Parliament were full when the second reading debate commenced on 23 April 1975. In opening this debate Dr Wall read a letter he had received which showed abortion was not simply available on demand but on offer. A woman who had made no request for termination had been offered one by her doctor. Gerard Wall urged his colleagues to "protect those too weak to move, those who may not run away, those with no voice, and so retain the tradition of social concern that has been the glory of this House."6

When the Minister of Justice, Dr Finlay spoke there was applause from the public galleries. "If this bill was passed in its present or amended form," he said, "Parliament would have admitted failure. It would have demonstrated its unwillingness or inability to face the reality of the situation. It would stand accused of saying to women ... ?We do not know how, why or even when you may terminate an unwanted pregnancy, and, what is more, we will not even bother to find out or make up our minds on these difficult questions. That is something you will have to find out for yourself; and if you and your doctor guess wrongly, then the doctor will be liable to 14 years imprisonment. But we will do something for you. Even if you don't know how, why or when you can have it, we will tell you where you cannot have it."7

His Labour colleague, Norman Douglas, dealt with the issue in simpler terms. "I came into politics," he said, "to help to preserve life, to help to develop life, to help to prolong life, not destroy it. If I had other ideas I would have stayed out of politics because I do not believe there is room in the political scene for other than the promotion of human welfare I wholeheartedly support the bill introduced by my colleague."8

When the Prime Minister Bill Rowling rose to speak he advised Parliament that he had announced that night, the details of a proposed Royal Commission. In speaking to the measure before the House he said, "I am one of those who consider that the bill in its present form is not fully acceptable in the circumstances of the moment." He went on to say he subscribed to the aim of the bill which was he said, "to establish a proper degree of control and surveillance in accordance with the law as it now relates to therapeutic abortion."9

There was further applause from the galleries when Mary Batchelor supported the pro-abortion position. In response to questions concerning the unborn child she said, "I prefer not to go too deeply into that because I do not think this is the place for such a discussion - after all, we are discussing the bill." She went on to say, "The foetus is not viable outside the woman's body in the early stages ... not all the medical science in the world can help a foetus that has been in the womb for eight or ten weeks to survive outside the woman's body and grow into a human being." Mrs Batchelor asked the House about a single pregnant woman, "What can she do other than have an abortion?"10

Public and political interest was high. By 30 April more than fifty MPs had spoken on the issue. They fell into two distinct groups. The larger group wanted to find some way of protecting the unborn child while finding a solution to the woman's dilemma. Many argued for counselling in the hope that it would provide assistance to expectant mothers. A smaller group of MPs accepted the need for abortion. They wanted to find a way of keeping the Remuera clinic open.

Koro Wetere was one of the last to speak in the second reading debate and he warned the House, "If there is a proliferation of clinics, with the profiteering that some members have referred to, there can only be one result. The client, or the patient, will have to buy the conscience of the doctor so that he will operate. If that is the type of society the country is to have then our moral standards are deteriorating to a level where our Christian beliefs are being forgotten. As Christians, we in this House, cannot afford that luxury"11

As the second reading debate closed. Dr Wall thanked those who had taken part and said they had "shown the country that when it comes to a serious matter in which every member of Parliament speaks on his own account, they have been able to conduct a debate with quite unprecedented dignity and standards of performance."12 On the evening of 1 May the committee stages commenced and here the speaker was to comment on the unusual nature of this development, ".. We have reached," he said, "a situation almost unique in our history, in that a private member's bill is receiving the serious attention of the committee with a view to its ultimate passage into law, although perhaps in an amended form."13

That this was an event "almost unique in our history" presented problems well beyond those normally encountered in the passage of law. There were no whips and no decisions made in caucus. Everything was happening on the floor of the House itself. That month there was an interesting item in the Tablet from their Wellington correspondent, Merle Nowland. "High praise of Dr Gerry Wall and his shepherding of the Hospitals Amendment Bill," she reported, "has been voiced to the Tablet by the Leader of the Opposition, Mr Rob Muldoon. He said only a person who had been a Minister of the Crown realised the kind of pressure that came when one was involved in moving legislation and that kind of pressure was much greater for a private member who acted without the support of his Cabinet around him."

In committee there was a substantive amendment to the bill from Alan Highet, MP for Remuera. His amendment allowed for the licensing of private hospitals by the Director-General of Health provided he was satisfied with the adequacy and independence of the counselling services and further that he was satisfied that it used procedures to ensure that "all operations authorised are within the law." This amendment passed on a vote of 57 to 10.

That same night a further amendment in the name of Peter Gordon was passed. It required that all abortions performed in New Zealand be reported to the Director-General of Health within one month of the operation. For the first time in New Zealand it would be mandatory to report all induced abortions.

On 23 May 1975, the Hospitals Amendment Bill passed its third reading on a vote of 43 to 16. The overwhelming majority of the country's Members of Parliament had made it clear they wanted the practices established at the Auckland abortion clinic brought to an end. In the meantime, a quite different development was taking place. The United Nations had designated 1975 as International Women's Year and in New Zealand, the Women's Liberation Movement came of age.

 

International Women's Year

There have been two periods in New Zealand history where the role of women emerged as a distinct public issue. The first wave was in the late nineteenth century when women agitated for and were granted, the right to vote. The second wave began to build up during the late 1960s. For a time this second wave of feminism was seen only vaguely by the average New Zealander. They had heard reports filtering through the media about angry ?bra-burning' feminists in the United States but even the N.Z. visit by the world renowned feminist, Germaine Greer, did not sharpen their grasp of what appeared to be the problem for some women. Things were to change however during 1975.

The single most important event for New Zealand's feminists that year, was the United Women's Convention held in Wellington in the middle of June. Two thousand two hundred women converged on the capital's Winter Show Building to take part in an event which was unprecedented in New Zealand. The convention comprised forty different workshops on issues of specific interest to women.

That weekend, Wellington's weather was at its worst. It was cold, wet, windy and very bleak. Women strained to hear what was being said above the drumming of rain on the corrugated iron roof of the Winter Show Building. They huddled together, swathed in scarves and heavy overcoats. Some wrapped blankets around their legs and many had woollen hats pulled down over their ears. For all that however, the convention generated a great sense of purpose. The strains of Helen Reedy singing "I Am Woman" struck a responsive chord with the participants and liberation for women became the ?in' thing.

People began listening to what the feminists were saying. Men began to wonder if maybe they had taken the aspirations of women too lightly. The media gave prominence to feminist issues and feminist demands. There was to emerge a good deal of tokenism but for all that people were now listening.

The spearhead of the Women's Liberation Movement comprised the active and often radical feminists who regarded abortion on demand as a pre-requisite to allowing women the freedom to decide how to conduct their lives. There was a tendency to assume this group spoke on behalf of women generally. I don't believe that when they demeaned the mother and homemaker, when they argued for abortion as a liberating force, they were speaking for the majority of New Zealand women. I believe they were speaking on behalf of that relatively small group of women who had taken up the mantle of leadership in the Women's Liberation Movement. The voice of the average mother and housewife was drowned out by the demands of the active feminists.

A high point for the Women's Liberation Movement was 1975 but it was also a year in which another very significant development was put in place. This was the Royal Commission on Contraception Sterilisation and Abortion.

 

The Royal Commission on Contraception Sterilisation and Abortion

The warrant constituting the Royal Commission was dated 23 June 1975. Under its terms of reference the commission was asked to investigate and report on:

? The legal, social and moral issues relating to contraception and sterilisation.

? The state of the present law on abortion, its interpretation, its application in practice, whether it met the needs of society having regard to social and moral issues including the rights of the woman and the status of the unborn child.

? Any changes which in their opinion should be made to the laws or practices relating to contraception, sterilisation and abortion and the likely effects of any such changes.

The Royal Commission was chaired by the Honorable Duncan McMullin a judge of the Supreme Court. The five other Commissioners were Miss Denese Henare, a young Maori lawyer from Auckland, Dr Maurice Matich a medical practitioner from Dargaville, Mr Maurice McGregor a medical social worker from Christchurch, Mrs Barbara Thomson a secondary school teacher from Wellington and Mrs Dorothy Winstone a leading and well-respected feminist from Auckland.

On 10 September 1975 the commission held its first public sitting in Wellington when background papers were presented by the Solicitor-General, the Department of Health and the Department of Social Welfare. Twenty one months were to elapse between the issuing of the warrant to establish the Royal Commission and the handing down of its final report in March 1977. In that period there were to be a series of very significant developments and the first occurred just ten days before the commission's first public sitting in Wellington.

 

The Director-General of Health and the Aotea Hospital

Under the provisions of the Hospitals Amendment Act 1975, the Director-General of Health was given a particular responsibility. The Act read as follows (the bold is the authors): "140A (1) Nothing in section 182 / (2) of the Crimes Act 1961 (which relates to the causing of the death of  a child in good faith for the preservation of the life of the mother) shall  apply unless the operation is performed in an institution under the control of a Hospital Board under this Act or in any licensed hospital that may be approved for the purpose by the Director-General of Health upon his being satisfied that it maintains or uses adequate and independent counselling services and all procedures to ensure that all operations authorised are within the law and that the facilities for operation and after-care are satisfactory . . ."

The Director-General of Health at that time was Dr John Hiddlestone. Under the Hospitals Amendment Act, he was not required to license any private hospital unless he was satisfied it maintained independent counselling and procedures to ensure that all operations authorised were within the law.

One month after the Wall bill became law, the Minister of Health, Tom McGuigan, who had opposed the bill, was reported as saying, "I cannot see how the Director-General can determine whether abortions are legal or illegal. Neither can I see how the Director-General can lay down provisions to ensure that they are legal. It is a medical decision and can only be challenged at law."14

By early July, doctors at National Women's Hospital in Auckland were expressing concern about the new demands the closing of the Remuera clinic would throw on them.15 Similar comments came from a spokesman for Wellington Hospital16 and from the Otago Hospital Board. The wife of Melbourne abortionist, Bert Weiner, came to New Zealand and described the high standards at her husband's abortion clinic18 while Medibank, the Australian national health scheme, confirmed that New Zealand women obtaining abortions across the Tasman would not be required to pay more than $519 for the abortion itself.

On 26 July the Auckland Medical Aid Trust announced it had completed negotiations to buy a private hospital in Auckland and that it had applied to the Director-General of Health for the authority to perform abortions there.20 On 1 September they received the necessary approval from Dr Hiddlestone and a new abortion centre known as Aotea was established in Epsom.21

When the Medical Aid Trust shifted its abortion clinic from Remuera to Epsom its Director, Dr Rex Hunton announced that the cost of abortions would rise from $80 to $100.22 A month later it was announced that Aotea qualified for a subsidy of $12 a day per patient which was the Government subsidy paid for all private hospital patients.23 This subsidy was later to become the subject of an inquiry by the N.Z. newspaper Truth. It was reported in Truth of August 1977 that in its first 11 months of operation the clinic had derived a total income of $123,516 and after meeting all its outgoings had a surplus of $31,523. The following year its total income was $364,296 and that after all outgoings the excess of income over expenditure was $120,281. In discussing the hospital bed subsidy of $41,844 paid by the Department of Health during the year ended March 1976, the Truth inquiry went on to report it "was paid at the rate of $18 a patient until 30 September, 1975, and at the rate of $24 a patient on and after 1 October, 1975 ... despite the fact that the women, according to the Royal Commission, who attend the clinic never stay over- night, because the Director-General of Health regards abortion as a surgical procedure, he has apparently approved the payment of the full benefit of $24 simply because other surgical patients have traditionally stayed in hospital for no less than two days."

The Truth report went on to say, "How the Director-General, Dr J.H. Hiddlestone, came to approve this somewhat generous payment from the taxpayers' money has never been adequately explained, but the payment appears to have been the subject of mild surprise to the Royal Commission."

 

The Auckland Medical Aid Trust Seeks Help from the Courts

By the end of 1975, the Auckland Medical Aid Trust had appealed to the courts on three separate counts. The first concerned the validity of the search warrant used by the police when they seized the clinic's files in September 1974. In the wake of concern that the Remuera clinic might be performing unlawful abortions, the police had raided the clinic taking some 550 files to ascertain what evidence they contained of unlawful conduct.

It was January 1975 when the Court of Appeal made an order quashing the search warrant broadly on the grounds that it was too general in form.24 Two months later Mr Justice McMullin ordered that all copies of the files seized by the police during the raid were to be held by the registrar of the Supreme Court in Auckland. He ruled that in the event of Dr Woolnough being brought to trial the files could be made available to the Crown Solicitor, the police officers involved, as well as counsel for the Trust and DrWoolnough.25

By November the Trust had sued the Commissioner of Police and the Attorney General for $500 over the photocopying of some of the files seized by the police in the Remuera raid. They claimed that making photocopies of patients' records was a breach of copyright. In December Mr Justice Wilson handed down a reserved judgement which found that the photocopying was not an infringement of copyright.26

While these appeals were relatively minor, the Trust's third appeal was substantive. It sought a declaratory judgement on the interpretation to be placed on the provisions of the Hospitals Amendment Act and the two questions posed were:

1. Is a non-viable fetus "a child that has not become a human being" within the meaning of section 182

 (1) of the crimes Act 1961?

2. What effect, if any, does section 140A of the Hospitals Act 1957 have upon section 183 of the Crimes Act 1961?

In his September 1975 judgement, Mr Justice Speight said the type of procedure under which he was being asked to consider the first question was unsuitable to enable him to deal properly and adequately with the question of the child, but he did deal with the second question. He found the problem arising from the second question was whether the Hospitals Amendment Act meant there was no defence of bona fide medical treatment to a person charged under section 183 of the Crimes Act other than in terms of section 182 (2). He concluded that anything the Hospitals Amendment Act had to say about section 182 (2) had "no relevance to proceedings under section 183."

He went on to say. "Persons charged with an offence under section 183 of the Crimes Act 1961 have the same defence as has always existed under that Act and their position is not affected by the provisions of section 140A (1) of the Hospitals Act 1957 as amended." 27

The effect of this decision was to nullify all but the reporting clauses of the Hospitals Amendment Act and so the whole purpose of the legislation Parliament had enacted that year was rendered null and void There was however, another matter pending. The Woolnough trial two months later would profoundly influence the way doctors would be able to interpret the abortion laws which had been on New Zealand's statute books since l867.

 

References:

1   Margaret Hayward; Diary of the Kirk Years, A.H. & A.W. Reed, Wellington 1981; p. 284

2   Gerard Wall; Hansard 30 Aug 1974; p. 4161

3   Robert Muldoon; Hansard 30 Aug 1974; p. 4163

4   Martyn Finlay; Hansard 30 Aug 1974; p. 4172

5   Richard Harrison; Hansard 30 Aug 1974; p. 4169

6  Gerard Wall; Hansard 23 April 1975; p. 816

7   Martyn Finlay; Hansard 23 April 1975; p. 821

8  Norman Douglas; Hansard 23 April 1975; p. 825

9   Bill Rowling; Hansard 23 April 1975; p. 829

10 Mary Batchelor; Hansard 23 April 1975; p. 836

11 Koro Wetere; Hansard 30 April 1975; p. 1029-30

12 Gerard Wall; Hansard 30 April 1975; p. 1032

13 Speaker of the House; Hansard 1 May 1975; p. 1082

14 N.Z. Herald; 25 June 1975; Report on interview with Hon. T. McGuigan

15 Southland Times; 4 July 1975; "Doctors show concern at clinic's closure"

16 Evening Post; 29 July 1975; "More abortion calls as Remuera closes"

17 Otago Daily Times; 30 July 1975; "Abortion request expected to rise"

18 Christchurch Press, 14, 15 & 16 July 1975; "Public hospitals not for abortion"; "Access to abortion urged"; "Complication rates studied"

19 Marlborough Express; 7 July 1975; "$5 abortions available to N.Z.women in Australia"

20 Evening Post; 26 July 1975; "Abortion clinic buying a private hospital in Auckland"

21 Evening Post; 1 Sept 1975; "Remuera clinic given hospital abortion O.K."

22 Ibid

23 Christchurch Press; 3 Oct 1975; "Subsidy a windfall for clinic"

24 Report of Royal Commission of C. S. & A.; p. 42

25 Evening Post; 19 March 1975; "Abortion clinic file copies handed to court registrar"

26 Evening Post; 10 Dec 1975; "Police photocopying of clinic files up-held by judgement"

27 The Auckland Medical Aid Trust v. Her Majesty's Attorney General; Auckland Supreme Court ref. A 1166 / 75

 

 

 

 

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