A Legal Problem with Public Health Consequences -by W.A.P. Facer

(distributed by ALRANZ prior to 1977)

Abortion is defined as the termination of pregnancy before the fetus is capable of independent extra-uterine life (WHO 1970) thus resulting in fetal death.

Abortions may be either spontaneous or induced. Induced abortions are those deliberately undertaken with the intention of terminating pregnancy.

This paper is only concerned with induced abortions and primarily those induced illegally by medically unqualified persons.

Historical Background
Historical evidence suggests that abortion occurred so widely in the ancient world as to be almost universal.The oldest known record dates a Chinese abortion technique of 3,000 years B.C.

Anthropologists have found that abortion has been used as a method of birth control in nearly all societies that have been studied (Derereux, 1955) irrespective of social attitudes or legal prohibition.

With regard to the pre-European Maori, Gluckman (1971) has shown that while abortion did occur rarely, it was probable that infanticide was practised more often, as there existed strong mythological opposition to abortion.

Nineteenth century European colonization of New Zealand resulted in the introduction of British law concerning abortion. Traditionally, English common law permitted abortion if it was performed before quickening (about 16-20 weeks).

The first British statute to govern abortion was passed in 1803 and this forbade abortion at any time during pregnancy. This prohibition was automatically imported into New Zealand in 1840. In that year New Zealand became a colony and all relevant British law was enforceable in the colony.

The Offences Against the Person Act 1866, which was passed by both houses of the New Zealand Parliament without debate, was based on the earlier British legislation.

Apart from some subsequent re-enactments and minor alterations, statute law has retained most of the features of the original Act.

Existing Law This was written before the passing of the Contraception, Sterilisation & Abortion Act, 1977)
The present statute law relating to abortion is contained in section 182 to 187 of the Crimes Act 1961. These sections have been summarised by Stewart (1967) as follows:

Section 182
  • (1) Provision is made for up to 14 years imprisonment for intentionally killing an unborn child.
  • (2) An exception is provided where the act is in good faith to preserve the life of the mother.

  • Section 183
  • (1) There is provision for up to 14 years imprisonment for unlawfully using a drug or instrument with intent to procure the miscarriage of any woman or girl whether with child or not.
  • The woman or girl involved is not to be charged as a party to an offence under this section.

  • Section 184
  • (1) Up to 10 years imprisonment is provided for unlawfully using means other than those in S. 183, with intent to procure the miscarriage of any girl or woman.
  • (2) As in S. 183 (2)

  • Section 185
  • There is a penalty of up to 7 years imprisonment for any female who unlawfully procures or attempts to procure her own miscarriage or permits anyone else to do so.

  • Section 186
  • Anyone who supplies any means of procuring abortion is liable to 3 years imprisonment.

  • Section 187
  • The foregoing provisions (SS. 183-186) are to apply whather or not the means used are capable of procuring abortion.

  • These provisions in the Act must be read with reference to case law.

    Legal abortions in this country are done on the basis of an English case, the Bourne decision to 1938, where the Judge held that a lawful defence is not limited just to situations where the mother's life is endangered by the pregnancy.

    It is legally permissable to abort, the Court said, in cases where continuing the pregnancy would result in the woman becoming a "physical or mental wreck". The decision to allow abortion on these serious health grounds has been followed in subsequent cases.

    There is, however, no provision for instances of pregnancy resulting from rape, incest or where the woman is of unsound mind. Nor is it legally permissable to abort on the ground of fetal abnormality.

    Despite the fact that these are not legal grounds it appears that a number of abortions have been performed in public hospitals for some of these reasons.

    In an analysis of 58 abortions performed at National Women's Hospital between 1959 and 1967, Dunn (1968) reports that 11 were performed because of rubella (fetal abnormality) and one because of rape.

    The Present Law and Medical Practice
    Between 200 and 300 therapeutic abortions are performed annually in public hospitals.

    A number of terminations are carried out in private hospitals but as there is no obligation on medical practitioners to report the number of abortions they perform, there is no way of determining how many are done in this manner.

    A similar situation existed in Britain before the 1967 Abortion Act (which came into effect on April 27th, 1868) was passed. Diggory (1969) estimated that the actual number of private therapeutic abortions performed in Britain in 1966 and 1967 was approximately double that performed in public hospitals. With the paucity of available information there is no way of knowing whether a similar ratio occurs in New Zealand.

    Gregson and Irwin (1971) have shown that medical practitioners are uncertain of the legal status of abortion, with only 35 percent able to state correctly the basis of current New Zealand law.

    In the light of this fact the observation made by Macfarkane (1971) on medical practice is not surprising when he said that:

    "There is absolutely no doubt that in New Zealand in probably a majority of cases where abortions are performed on the grounds of mental health, the so-called 'psychiatric reasons' involved fall far short of those which would leave her a mental wreck, and although they may be (sic) legal and fully justified in relieving the patient of anguish and mental trauma, in relation to the existing law they are virtual hypocrisy. This is a thoroughly unsatisfactory situation".

    If the present situation is found to be unsatisfactory by members of the medical profession it is even more unsatisfactory for those women not fortunate enough to receive medical operations, who then turn to pills and potions, self-abortion attempts, or the unskilled abortionist.

    Methods of Inducing Illegal Abortions
    Every study of criminal abortion records the extraordinary lengths to which women will go in order to avert giving birth to an unwanted child, irrespective of the consequences to their own health and lives.

    The methods used can be grouped into 3 main categories: physical methods; the administration of 'abortifacient' drugs; and the introduction of some object or substance into the uterus.

    The physical methods sometimes employed include extremely hot baths, taking severe exercise, lifting heavy objects, and violent beating of the lower abdomen...(edited for safety reasons).

    The theory behind these actions is that they will initiate uterine contraction. The assumption is however false, and such attempts will rarely succeed unless the resulting injury is so great as to endanger also the mother's life.

    Drugs with reputed abortifacient properties have been used for generations and appear to be an established part of the abortion folklore...(edited for precautionary reasons).

    These drugs are unlikely to induce an abortion. Some may do if taken in large enough doses to cause serious illness to the mother. According to the drug used and amount taken, the effect on the woman's health will range from violent diarrhoea and vomiting to kidney damage, poisoning and death.

    An investigation by Cole (1966) into various potions available to the public, mostly of the herbal kind, showed that none were likely to cause an abortion and their reputation was probably due to the occurrence of spontaneous abortion after they had been taken.

    When other methods fail, or have not been employed, operative attempts through the vaginal canal are used to dislodge or expel the fetus. According to Ficher (1967) the single most frequently used methods of inducing a criminal abortion is the introduction of irritating substances into the uterus... ...(edited for precautionary reasons).

    Health Consequences of Illegal Abortions
    When abortions are performed in secret by unskilled or semi-retired persons who have little knowledge of antiseptic requirements, the risks are not inconsiderable.

    The risks involved in any given abortion attempt will depend on the technique used and the skill of the abortionist. It would be wrong to regard all back-street operators as totally unskilled using only the crudest of methods.

    In Britain before reform of the law, Ferris (1966) observed variation in the skills of criminal abortionists, with some showing regard to hygiene.