Last Friday the New Zealand Herald reported that an unnamed rural GP (doctor) has had her practising certificate suspended for six months for the ‘crime’ of prescribing the drug Misoprostol to four patients who needed an abortion.
The Herald reports in a sensational way that the doctor “supplied” “stomach ulcer pills” to “desperate” women. The Herald could have used the word “prescribed” instead of “supplied,” but opted instead to use the language of illegal drugs prosecutions.
In fact, Misoprostol is a perfectly legal drug. While it is true that it is used to treat stomach ulcers, that is clearly irrelevant to this case, and the stomach ulcer issue is only thrown in to the Herald’s story to make the doctor’s actions appear sinister or underhand. According to the Wikipedia page on the drug, it is used quite properly for various other purposes as well, including treating erectile dysfuntion in men, to induce labour and to treat post-partum haemorrhage in women, and to induce abortion.
Used under medical supervision, usually in combination with other drugs, it is a safe and effective alternative to surgical abortion.
The doctor was disciplined by the Health Practicioners’ Disciplinary Tribunal for breaching the Contraception, Sterilisation, and Abortion Act of 1977. It appears that her ‘crime’ consisted in failing to follow the oppressive provisions of that law, which require two ‘certifying consultants’ to give their approval before any pregnancy is terminated. The doctor explained her actions at the time, saying it would save the patient “a massive ordeal associated with a trip … for an abortion”.
Now, it happens that I know a little about the history of this law. In 1977 and 1978 I joined the mass protests against it that took place throughout the country, both before and after the law was enacted by a ‘conscience vote’ of a bourgeois parliament.
Up until the 1970s, abortion in New Zealand had been strictly prohibited under the Crimes Act, unless continuing a pregnancy posed a severe risk to the life or health of the mother. Women who wanted to terminate a pregnancy, in cases where it was considered there was no risk to their health, were driven to seek the help of illegal, back-street abortionists. In the days before effective means of contraception became available about one in five pregnancies was terminated in this way. (Condoms have a long history, but were subject to widespread religious and legal restrictions up to the 1940s – and for various reasons often failed to prevent pregnancy. The contraceptive pill only became available in the 1960s).
This was a time when bearing a child outside of marriage could cause both severe economic hardship and life-long humiliation and shame. The back-street abortionists sometimes took advantage of the desperate situation of women seeking their help to charge exorbitant fees or demand sexual favours, knowing that the women could not seek redress from the authorities for fear of being prosecuted themselves. There were also abortionists who provided the service as well as they could, without exploitation, at great personal risk to themselves.
The woman’s health was thus very much put at risk. The techniques used to induce the miscarriage were crude. Instruments such as knitting needles were inserted through the vagina and cervix into the uterus, or toxic liquids were injected, to try to dislodge the embryo. Inadequate sanitary conditions and lack of surgical knowledge and training by the abortionist meant that perforation of the woman’s internal organs, severe infection, and permanent infertility were frequent consequences. Official statistics record 42 deaths in public hospitals resulting from botched abortions in New Zealand in 1934, although it is likely that many more deaths and injuries went unreported.
While the incidence of maternal death from botched abortions declined in the post-World War II years due to wider use of contraception and of antibiotics to treat infection, the conditions of shame and illegality under which women had to obtain an abortion did not.
With the rise of the women’s movement in the late 1960s and early 1970s, women began to challenge this situation. The landmark 1973 court decision establishing women’s right to abortion in the United States, Roe v Wade, had an impact, as did moves to liberalise access to abortion in the UK and Australia. Gradually, medical authorities began to extend the definition of ‘a serious threat to the health of the mother’ and the number of abortions performed at public hospitals began to rise. A specialist clinic dedicated to providing abortions opened in Auckland in 1974.
This challenge was met with intimidation, harrassment and repression by the forces of the state. Police raided the clinic, supposedly looking for evidence of law-breaking, seizing files and forcing it to shut down. One of the doctors working at the clinic was charged (but was acquitted after a public defence campaign). Women entering the clinic were subjected to campaigns of harrassment by rightist outfits calling themselves ‘pro-life,’ chief among them being the Society for the Protection of the Unborn Child. The clinic itself was firebombed, causing extensive damage, but was able to reopen. A special law was passed in Parliament requiring all abortions to be done in a licensed hospital, which forced the clinic to shut down. The trust which ran the clinic then bought a hospital that had been shut down and re-opened.
These attempts to turn back the clock and force women either to bear children against their wishes or to turn once again to the back-street abortionists provoked outrage among women. A national debate on the question developed over a period of years, spearheaded by a campaign of public demonstrations by women demanding the right to safe, legal abortion. Similar events were unfolding in other countries.
Every aspect of the question was thrashed out, in conferences of women and educational forums, in discussions among workmates, friends, and families. When does human life begin? Doesn’t a foetus have human rights? What rights does the father have? What about the needs of infertile couples who sought to adopt the unwanted children? Shouldn’t the approval of the woman’s doctor be required? Every imaginable objection was raised to granting women the right to control their own reproductive life – and every one was answered by the supporters of women’s rights.
The debate was taken into the organisations of the workers movement. Union bureaucrats tried to evade the question, claiming that it “is not being raised on the factory floor.” Stalinists declared that the demand for abortion rights “divides the working class.”
But as the debate gathered momentum, it became clear to all sides that the right of women to control their reproductive lives was a central issue of women’s equality. Contrary to the Stalinists’ assertion, it was not the abortion debate but the oppression of women that divided the working class, and the winning of abortion rights would be a historic advance for working class unity.
“Not the church, not the state, women must decide our fate!” was the slogan on the abortion rights demonstrations.
The anti-women forces leaned heavily on the state. The Society for the Protection of the Unborn Child, was primarily a lobby group, and it had strong support among members of parliament. Parliament attempted to defuse the demonstrations and head off the discussion on the issue by appointing a Royal Commission on Contraception, Sterilisation, and Abortion in 1975. A comprehensive piece of anti-abortion legislation was drafted coming out of this Commission, and in August 1977, the Contraception, Sterilisation and Abortion Bill was introduced into parliament. (The story is told in vivid detail in Alison McCulloch’s book Fighting to Choose: The Abortion Rights Struggle in New Zealand, one chapter of which can be read here.)
The only grounds for abortion allowed under this draft Bill were when the woman was likely to suffer death or serious damage to her physical or mental health, where there was substantial risk of foetal deformity, or where pregnancy was the result of incest. Both rape and economic circumstances were explicitly rejected as grounds for abortion. In addition, it set up an obstacle course of governement bodies which women seeking an abortion would have to submit to. First, she would have to see her own doctor. The doctor would then refer her request to two certifying consultants (one of whom had to be a qualified obstetrician or gynaecologist) appointed by an Abortion Supervisory Committee set up by Parliament. If they gave their consent, then an operating doctor had to be found who must also agree with the procedure. After the woman’s initial request, the decision was in the hands of these four doctors.
Further mobilisations turned out in opposition to the Commission’s report and the Bill based on its findings. A United Women’s Convention in Christchurch attended by 2,700 women rejected it overwhelmingly.
The Parliament which debated this Bill defied a series of opinion polls indicating wide support for liberalised access to abortion. The supposedly ‘liberal, pro-abortion’ MPs put forward amendments which centred on the question of whether two, three, or four doctors should decide whether a woman is able to have an abortion. Members of Parliament from both National and Labour Parties vied with each other to tighten its provisions further. An amendment was passed removing foetal deformity as grounds for abortion, under pressure from the College of Gynaecologists (traditionally, that part of the medical profession dedicated to women’s health took the most reactionary anti-woman stance). A clause was tacked on to the ‘serious damage to the mother’s health’ provision, adding “and that danger can not be averted by any other means.” Other amendments aimed to ensure that doctors who supported abortion rights would be excluded from becoming ‘certifying consultants’. The final wording, with its explicit reference to “having full regard to the rights of the unborn child” bore the stamp of the rightist “Society for the Protection of the Unborn Child.”
The Bill was voted into law by a ‘conscience vote’ (meaning that Members of Parliament were not bound to vote along party lines) in December 1977. It was described at the time as one of the most restrictive anti-abortion laws in the world. The Auckland Medical Aid Trust was again forced to shut its hospital, since the Abortion Supervisory Committee questioned the ability of its staff to interpret the law “correctly.” Hundreds of women were forced to travel to Australia for abortions in the first few weeks after it passed. The anti-abortion forces were triumphant. The offices of Sisters Overseas Service, which organised the abortion flights to Australia, were firebombed.
After the initial shock of this massive setback, demonstrations to repeal the new law resumed and gathered momentum throughout 1978, including a march of 2000 in Auckland in September. 300,000 people signed a petition for Repeal within a few months.
Then an unexpected thing happened. The clear intent of the reactionary parliament proved impossible to carry out. Not enough rabidly anti-abortion ‘certifying consultants’ could be found, and candidates with more liberal views were appointed.
Before very long, it had become reasonably easy to obtain an abortion in almost any city. (There were a few exceptions mainly in rural areas, where the shortage of certifying consultants meant women had to travel some distance).
Alarmed, the anti-abortion forces tried once again to bring the forces of state to bear. In 1982 Dr Melvyn Wall attempted to go to court to prevent a young woman from having an abortion that had already been approved by the certifying consultants. Wall appointed himself lawyer for the unborn child. The court threw out his attempt. When he took it to the Appeal Court, that court ruled that the foetus could not be represented in court and in fact had no statutory rights. This ruling amounted to a complete reversal of the Contraception Sterilisation and Abortion Act passed less than five years earlier.
This turn of events provides an interesting illustration of the relationship of laws to political struggle. Contrary to appearances, laws are not made by the hand-raisers in parliament; they are in fact made in the political struggle in the streets. The law is simply a codification of the class relationship of forces achieved in struggle. If a law passed by a parliament doesn’t correspond to that relationship of forces, it can not be enforced. That was the fate of the Contraception Sterilisation and Abortion Act. The anti-abortion forces won the law they wanted, but lost the political fight in the streets, and ultimately that proved more important.
This situation has prevailed for the last thirty years, despite further legal challenges from the rightists and continuing harrassment campaigns against women entering abortion clinics.The rate of abortion in New Zealand is roughly similar to the rate in Australia and the United States. Since 2003 that includes abortions induced by drugs.
Yet it is now thirty-five years since the mobilisations which won wider access to abortion. The relationship of forces established back then is not fixed for all time. Reactionary forces seeking to reverse the gains for women’s rights won by the women’s movement of the 1970s are always looking for openings. And the fact that this reactionary law remains on the statute books, and women seeking abortions are still required to jump through the hoops of the certifying consultants, leaves just such an opening. The case of the unnamed doctor smeared in the Herald article should ring alarm bells.
The repeal of the Contraception Sterilisation and Abortion Act is long overdue. Women should be able to obtain an abortion without being subjected to the “massive ordeal” that the unnamed doctor was trying to avoid on behalf of her patient. The process of throwing out this reactionary law should start with a loud public condemnation of the persecution of this doctor.