No doubt over lawfulness of abortions

Abortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 246 (1 June 2011)


On 1 June 2011 the New Zealand Court of Appeal handed down its decision in the appeal and cross-appeal from the judgment of Justice Miller in the High Court’s 2008 decision in Right to Life New Zealand Inc v Abortion Supervisory Committee [2008] 2 NZLR 825 on the rights of the unborn child and the powers of the Abortion Supervisory Committee (ASC) under the Contraception, Sterilisation and Abortion Act 1977 (CSA Act). The majority (2:1) upheld Justice Miller’s finding that an unborn child has no express right to life, but held that his view that there was nevertheless “reason to doubt the lawfulness of many abortions” was inappropriate and had no legal effect. The majority also rejected Justice Miller’s finding that the ASC’s general supervisory role included a statutory obligation to audit the decisions of certifying consultants on the lawfulness of abortions in individual cases.


Right to Life New Zealand Inc (RTL) was concerned that abortions were being wrongly approved and were available “on request” so it brought judicial review proceedings seeking declarations as to the functions and powers of the ASC under the CSA Act. RTL alleged that the ASC had breached its statutory obligation to review and scrutinise the decisions of certifying consultants who determine whether an abortion would be lawful if performed and issue certificates accordingly. The ASC is responsible for appointing and maintaining a list of suitable certifying consultants and for reviewing the procedures certifying consultants use to decide whether to approve an abortion . However, the ASC denied it was entitled to review the merits of specific decisions. RTL claimed that the ASC is necessarily empowered to audit the activities of certifying consultants in order to fulfil its obligations in keeping under review the operation and effect of all the abortion law provisions and reporting its conclusions to Parliament.

Justice Miller rejected RTL’s argument that an unborn child has a legal right to life under the CSA Act, the New Zealand Bill of Rights Act 1990 (Bill of Rights), common law or international law. However, His Honour agreed with RTL that there was reason to doubt the lawfulness of many abortions approved by certifying consultants and found that it was likely that the law was being applied more liberally than Parliament intended. His Honour also found that the ASC was wrong to believe it was not permitted to review and scrutinise the decisions of certifying consultants.  However, Justice Miller declined to make any declarations against ASC awarding only costs to RTL.

The ASC appealed the decision challenging Justice Miller’s jurisdictional or evidential foundation as well as its own statutory entitlement to evaluate the lawfulness of specific decisions of certifying consultants. RTL cross-appealed arguing that Justice Miller ought to have made declarations that the ASC had breached its obligations.


Rights of the unborn child

Justice Stephens delivered the majority judgment on behalf of himself and Justice Chambers. Their Honours agreed with Justice Miller that there is no express right to life for an unborn child under the CSA Act, nor is there a “state interest” in protecting such a right to life as argued by RTL. The court cited its decision in Wall v Livingston [1982] NZLR 734 at 737 that Parliament had made no “attempt to spell out what were to be regarded as the legal rights of an unborn child; with the consequential absence of any statutory means by which rights (whatever their nature) could be enforced.”

The Court also rejected RTL’s argument that in affording the unborn child protection from abortion the CSA Act modified the common law “born alive rule” stipulating that a foetus has no legal rights until born alive. Their Honours agreed with Justice Miller that the CSA Act exists to regulate abortions and deals with the protection of an unborn child indirectly but that the CSA Act clearly showed that the life and health of the mother takes precedence over the life of unborn child.

Their Honours commended Justice Miller’s finding and reasoning that the right to life in s 8 of the Bill of Rights does not extend to the unborn child but found it unnecessary to decide the point in the appeal proceedings.

Justice Arnold agreed with the majority’s findings on the rights of the unborn child but disagreed on other points and thus delivered a separate dissenting judgment.

ASC’s functions and responsibilities

The majority disagreed with Justice Miller’s findings on the lawfulness of decisions of certifying consultants to authorise abortions and the ASC’s entitlement to review these decisions. Their Honours held that the question on whether an abortion should be authorised is to be left to the certifying consultants except in cases of bad faith. The fact that there is no express right of review of certifying consultants’ decisions in the CSA Act was found to confirm that the decision to authorise an abortion was best characterised as a medical judgment.

The majority also referred to its decision in Wall where it held that a doctor lacked standing to bring an application for judicial review of a specific decision of two certifying consultants. In Wall, the court held that the ASC had responsibility for the general oversight of the work of certifying consultants and the way in which the CSA Act is working out in practice, but it had no control, authority or oversight in respect of individual decisions of consultants. This lent support to the conclusion that individual decisions of the consultants were not reviewable.

Justice Arnold dissented on this point concluding that the ASC was required to consider whether consulting physicians are performing their proper statutory role and form a view about that in order to report to Parliament and fulfil their other statutory obligations. However, Justice Arnold did not go so far as to say that the ASC must reach specific conclusions about the legality of abortions in individual cases.

Relevance to the Victorian Charter

This decision has implications for the delicate balance that exists between the rights of the mother and the rights of the unborn child, particularly in contexts where abortion is regulated by statute. However, its significance is limited insofar as its technical foundation is the CSA Act.  Ultimately, the Court of Appeal found that it was unnecessary to decide whether or not there is a right to life for an unborn child under the Bill of Rights, which might have shed light on whether the right to life under s 9 of the Victorian Charter could include unborn children. In any case, s 48 of the Victorian Charter expressly excludes abortion laws from its scope of application which may diminish the relevance of such a finding even if it had been made.

The decision can be found at:

Sarah Holloway is a Seasonal Clerk at Mallesons Stephen Jaques.