a moral and empirical dilemma
Abortion is perhaps the most contentious and morally divisive area that the law has tried to deal with. It brings up questions of at what stage in the womb a foetus becomes human and acquires a right to life, a question part science, part philosophy. It then clashes this contested right to life against a multitude of women’s human rights around the globe, such as this same right to life, health, privacy, liberty and equality.
A fundamental tenant of our society is that the law applies equally to all, but how can we find a just law for all in an area where the moral choice is so subjective?
In New Zealand, abortion is not unconditionally legal. Women can only get abortions on the basis that of either that there is a threat to their life, their mental or physical health, it was due to incest, or of the foetus being handicapped were the pregnancy to continue.
In any other circumstance performing an abortion is a crime, although having one isn’t. However, the ‘danger to mental health’ qualification has been interpreted widely, with 99% of abortion requests being granted, 97% under mental health grounds.
In comparison, Canada, a country not culturally dissimilar to New Zealand, has no legal restrictions on abortion. However, it has a near identical abortion rate of women at child-bearing age to New Zealand, with an abortion rate of 14/1000 in 2015, 0.2 down from New Zealand in that same year.
Similarly in England and Wales, while abortion is not free of legal restrictions, it is available to any woman when two doctors agree that maintenance of the pregnancy is a greater risk than having an abortion.
As one English Lord Justice stated, “there is some evidence that many doctors maintain that the continuance of a pregnancy is always more dangerous to the physical welfare of a woman than having an abortion, a state of affairs which is said to allow a situation of de facto abortion on demand to prevail.”
In 2015, England and Wales had an abortion rate among women of childbearing age of 16/1000. Among these relatively similar countries, legally restricting the right to abortion does not seem to reduce the rate at which abortions are carried out.
The difficulty with comparing New Zealand abortion laws to any countries where abortion is more strictly regulated is that these countries are all either dramatically different in culture to New Zealand, or they are not nearly as geographically isolated as we are, and hence individuals can far more easily travel to receive an abortion. Examples of this are Northern Ireland and Poland. As such, any comparisons drawn between New Zealand and these countries is subject to too many variables to be of much use.
However due to the mischaracterisation of the abortion debate, such international legal comparison isn’t necessary. The terms ‘pro-life’ and ‘pro-choice’ obscure the fact that making abortions illegal does not seem to cause them to happen less often, it merely causes women to resort to illegal means to carry out the abortions. For poorer women, it also drastically increases the danger of these procedures. As such, framing the abortion law debate in these terms is unhealthy, what is legal should not be what the voters see as symbolically right, but rather what empirically results in the least harm.
Not only is this reality of abortion restriction an empirical fact, but it is also entirely logical for it to happen in a modern, western society. Women today in New Zealand have gained all kinds of freedoms that they never had in the past. Freedom to marry who they choose, when they choose. Freedom to have their own careers, with a family, or without. So too has a greater sexual freedom resulted from this increase in autonomy. It’s only natural then that women are placed in situations today, far more often than in the past, where an unwanted pregnancy occurs, and the options are to have an abortion, or drastically change the course of their own life.
Some will see this change as positive, many will see this change as negative, but those who see the change as negative will not submit to the state restricting their choice to choose how they live their own lives. For this is the outcome of being able to choose. As women now have the freedom to choose how they live their lives, they will not let the state deny them autonomy based on pregnancy. Whatever your moral stance on abortion, both empirical fact and logical analysis show that restricting abortion is not a path to less abortions being carried out.
While some lessons can be learned from looking at how other states legislate around abortion, care should be exercised to not weigh these lessons too highly. Any abortion law reform must be based on empirical fact, and then moulded to fit within the culture and values of New Zealand specifically. Any basic comparison is subject to so many substantial variables, many of which are not even be apparent without a general sense of the cultural dialog in that specific place around the issue, as to render such a comparison at best pointless, and at worst highly misleading.
So, the conversation about whether it’s conscionable to have an abortion is a different conversation to the one about what the law should be.
Pro-life advocates should focus more on preventing the causes of unwanted pregnancies, such as lack of access to contraception, which does strongly correlate with an increase in the number of abortions, rather than on making abortions illegal; a process that only endangers and turns desperate women criminal.
Pro-choice advocates should focus less on women’s right to choose, as this argument understandably falls flat if the person they are trying to convince believes they’re trying to condone murder. Instead they should focus on the actual results of making abortion legal and illegal, and keep the moral debate separate from the empirical reality.
 R v British Broadcasting Corporation, ex parte ProLife Alliance  EWCA Civ 297