The abortion law in New Zealand is an anomaly.
In the actual wording of the law, it was, when passed in 1977, one of the most restrictive such laws in the developed world – and that was certainly the intention of the parliament which adopted it. It required any woman who needed an abortion first to convince her own doctor that it was necessary; if she succeeded the doctor would then refer her to a special panel of two more doctors appointed by the Abortion Supervisory Committee as ‘certifying consultants’ to enforce the law, and then if they agreed, the woman would need to find another doctor willing to carry out the procedure. All of this had to be done within a very restricted time frame.
In the original wording of the bill, the certifying consultants were to be instructed that the only possible grounds for a legal abortion were to be 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 the course of the parliamentary debate, 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 cannot 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.”
For the first few weeks and months after it came into effect, the law operated as intended. The Auckland Medical Aid Trust hospital, which had been one of the few facilities providing abortions, was forced to close, 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.
Prior to the passing of this law, there had been a national debate on the question 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 in this decision? 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. Street demonstrations gave this discussion a public face. Court-houses were picketed protesting the frame-up charges brought against doctors performing abortions.
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. But the new law passed in 1977 said otherwise, in a most emphatic way.
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 became common for the certifying consultants to use a liberal interpretation of the ‘mental health’ provision in the law, and it became 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 cannot 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 law has remained on the books, unaltered and unenforced, for the last forty years, despite further legal challenges from the rightists and continuing harassment campaigns against women entering abortion clinics. The rate of abortion in New Zealand is roughly similar to the rate in Australia and slightly higher than the United States. Since 2003 that includes abortions induced by drugs.
(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.)
Forty years on, the new government of Jacinda Ardern has indicated its intention to resolve the contradiction between the letter of the law and current practice, by removing abortion from the Crimes Act altogether and treating it as a health matter. This is to be welcomed – although to date there is a certain vagueness about what exactly the government has in mind.
This is no time for defenders of women’s right to abortion to relax their guard. The Ardern government has conspicuously failed to take a clear position that abortion is a woman’s right. To say that it is a health matter is of course true – at least in the sense that a termination requires the services of medical personnel and access to hygienic medical facilities. However, there is a danger that this formulation of the question may open the door to leaving doctors in control of the decision.
It is in this context that opponents of abortion rights organised a stunt on the grounds of parliament on July 25. An organisation called Voice for Life laid out 13,000 pairs of knitted babies’ booties on the lawn, supposedly symbolising one for each of the foetuses aborted in New Zealand in the previous year. Mimicking an ‘empty shoe’ protest about government inaction on New Zealand’s high suicide rate, the opponents of abortion rights thus attempted to appeal to maternal sentiments, and to revive the argument raised by Melvyn Wall in 1982, and overruled by the Courts, that the foetus is a human being with human rights. (Although apparently they consider that only medically-aborted foetuses are human – the larger number of foetuses spontaneously aborted got no booties on the lawn.)
Heavily outnumbered by counter-protestors, the stunt became a public display of just how far back the anti-abortion forces have been driven over the years. This was a far cry from their heyday in the 1970s, when they were able to organise mass meetings and street marches, chiefly through the then-more-influential Catholic Church mobilising its congregation.
On the other hand, the counter-protest organised by Abortion Rights Aotearoa, while it was larger and more energetic in declaring its support for abortion rights, also had weaknesses worth noting. Abortion Rights Aotearoa spokesperson Terry Bellamak was quoted as saying at the demonstration, “This booties protest … is kind of about shaming and guilting people who have had abortions and we think that’s wrong. Abortion stigma has stopped people from accessing abortion, it’s stopped people from talking about it, it’s created shame and distress in the minds of people who have had abortions. Abortion is healthcare. We trust people to choose for themselves to decide whether they need abortion care,” Bellamak said.
There is one important thing missing from these remarks: the word ‘women.’ Adopting the ‘inclusive’ language of transgender identity politics, Bellamak talked about ‘people who have had abortions’ and substituted ‘people’ for ‘women’ throughout her statement.
Some of the communications being circulated by supporters of the counter-demonstration were even more stark. One of them says about the ‘booties’ protest: “It’s guilt-tripping, slut-shaming, and reduces the pregnant person to a PLACE. In a way, it disappears the pregnant person entirely.”
The unavoidable implication of this statement is that women who seek abortions are ‘sluts.’
A demonstration for abortion rights which goes to some lengths to avoid using the word ‘women’ – yet apparently condones the word ‘slut,’ an ancient, deep-rooted and extremely offensive pejorative for a prostituted woman – is a demonstration seriously off course. It is not ‘people’ in general who need the right to abortion, it is women – that is a fact of biology that no amount of self-identification can overcome. The fact that women are oppressed as a sex is nowhere clearer than on the key question of abortion rights.
If the booties stunt ‘disappears the pregnant person entirely,’ it is equally true that the counter-protest ‘disappears’ women entirely. The erasure is not just careless use of language, but a deliberate political stance with profound implications, and all supporters of women’s rights should take note of it. The fact that this erasure of women comes from the abortion-rights side of the debate makes it more dangerous, not less, to the struggle for women’s reproductive rights and the broader struggle for women’s liberation.