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Image: Getty (additional design by Tina Tiller)
Image: Getty (additional design by Tina Tiller)

SocietyOctober 1, 2021

This court ruling shows just how far our abortion laws have come

Image: Getty (additional design by Tina Tiller)
Image: Getty (additional design by Tina Tiller)

Last week the High Court upheld a new law affecting health care providers with ‘conscientious objections’ to abortion. Terry Bellamak, president of ALRANZ, breaks down the decision and explains what it means for people seeking abortion care in 2021.

You may or may not have heard about a High Court case from last week – New Zealand Health Professionals’ Alliance v Attorney-General. It’s about the right of health practitioners to refuse to provide legal, proper healthcare because they object to it on moral grounds. This is so-called “conscientious objection”. 

But really, this case is about abortion care and people’s right to receive that care without unnecessary delays. It’s also a good case to know more about, because it could affect you or someone you love. Allow me to explain.

First of all, what is ‘conscientious objection’?

In the context of this case, conscientious objection is obstructing a patient’s access to medical treatment that the health practitioner disapproves of by refusing to provide treatment, and sometimes by refusing to provide further information. Objectors usually refuse to provide abortion care, and sometimes contraception or emergency contraception.

Those who obstruct other people’s access to abortion care like to call themselves “conscientious objectors”, allowing them to borrow the mantle of those courageous conscripted soldiers who refused to fight in the world wars. 

There is very little resemblance, however. Those soldiers suffered at the hands of military authorities who punished them harshly for their refusal to fight. The health practitioners do not suffer at the hands of authority figures. In fact, in the context of the doctor-patient relationship, they are the authority figures. It is patients who suffer delay in receiving safe, legal, time-sensitive care, and sometimes get an offensive lecture on their morals to boot.

What was this case about, specifically?

The New Zealand Health Professionals’ Alliance (NZHPA), a society that, in its own words, “advocates for freedom of conscience in healthcare” challenged new sections of the Contraception, Sterilisation, and Abortion Act 1977, later amended by the Abortion Legislation Act 2020.

The newly added section 14 says that when health practitioners object to informing patients about abortion care, they must tell the patient of their objection and how to access the contact details of the nearest provider who can help them. Section 15 says employers of objecting health practitioners must accommodate their objection, unless doing so would cause unreasonable disruption.

As plaintiffs, the NZHPA claimed that sections 14 and 15 limit their rights under the NZ Bill of Rights Act. They asked the court for a declaration that those sections are inconsistent with the Bill of Rights. The court considered whether the law limited their freedom of conscience, freedom to manifest religion, and freedom of expression.

Photo: Getty

Why does this sound so familiar?

That’s because this has happened before. The NZHPA went to the High Court in 2010, complaining that the New Zealand Medical Council (NZMC) had ruled that objectors had to refer their abortion patients to doctors who would help them. They argued that making a referral came too close to providing abortion care, and was too great a burden on their consciences. The court agreed. 

When the dust settled, patients’ rights had been gutted. The NZMC’s rule was tossed aside. This left New Zealand with some of the weakest medical objection rules in the world. In bringing this case to the High Court in 2021, the plaintiffs were trying to restore those old, weak rules.

What did the High Court decide?

The court upheld the new sections, finding that objectors must provide assistance to their patients as required by law. It said the law does not limit any of the plaintiffs’ rights, and even if it did, those limitations would be demonstrably justified in a free and democratic society.

How did this case turn out so differently from the one in 2010?

There are two answers to that question, the little answer and the big answer. The little answer is that things are now different – the defendant, the type of proceeding, the questions the court had to answer, and the things the court had to take into account.

The big answer is that everything is different – it is a different world. In 2010 abortion was a criminal justice matter. Today, abortion is a health matter. Back then abortion was literally against the law, with two certifying consultants having to approve the abortion to make an exception. 

Now we have a right to safe, legal abortions up to the twentieth week of gestation. Abortion had public support in 2010. Now that support is far more widespread.

OK, but how did the decision play out?

This case was supposedly about objectors’ consciences. But the court pointed out that pregnant people who want abortions have consciences too. It is simply not the case that their consciences are somehow worth less that the consciences of objecting health practitioners.

The judgment says:

“It is far from clear to me why— particularly in the case of the minimal and remote act required by s 14—a proper interpretation of s 15 of the NZ Bill of Rights Act would permit the conscience of one individual either to restrict the exercise of conscience by another, or to limit access by women to a process that is not only lawful, but is grounded in their fundamental rights.”

Parliament has recognised abortion as a fundamental human right by legalising it. Now the courts can decide cases taking that into account. This is a victory for patients’ rights. By treating patients’ and health practitioners’ consciences as equally deserving of consideration and protection, it has made society a bit more equal.

So what should I do if a health practitioner refuses me service?

It depends on the service. If it’s contraception or abortion, the health practitioner has to tell you about their objection, and tell you how to find the contact details of the nearest provider of that service. If they don’t, they are not following the law. Get their name. If any health practitioner treats you disrespectfully or gives you a lecture on your morals, write down what was said as accurately as you can, then definitely make a complaint to the Health and Disability Commission (HDC).

If it’s a pharmacy, contact the headquarters and make a complaint. If it’s a doctor or nurse practitioner, contact the head of the practice and make a complaint. If they don’t seem to take it seriously, make a complaint to the HDC. If it’s emergency contraception, that’s slightly different. The minister of health is responsible for seeing that everyone can access emergency contraception within 48 hours of requesting it. Note the time, and if it takes you longer than that, contact the HDC and the Ministry of Health.

And if you have any questions, you can always contact ALRANZ to explore your options in confidence.

Keep going!