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Analysis by Dr Bryce Edwards – Tonight’s historic first vote on abortion laws will inevitably disappoint many advocates of reform. This is because of the watered-down proposals put forward by the Government, and the politicking that has accompanied the legislation – especially New Zealand First’s insistence on seeking a referendum. 

Of course, abortion law reform has been inevitable for some time, and the nature of the issue means it was always going to be complicated. Politicians have been avoiding the reform question for decades, while a public consensus has continued to build in favour of liberalisation. The public are generally more progressive on abortion than the politicians, who continue to risk only moderate change for fear of alienating more conservative voters.

That’s why, even over the last year, the Government’s promises of reform continued to be stalled as Labour attempted to negotiate a compromise package of reform that would keep their New Zealand First colleagues happy. The results of this process, as well as all the overall politicking around it, are nicely laid out today in Thomas Coughlan’s article, Abortion bill heads to Parliament: What’s changing and when.

Reform success looks likely

It is clear that the more moderate legislation planned by the Labour-led Government has been designed so as not to buy too much of a fight or mean it will struggle to get passed. Hence, early signs are that the first reading tonight will very easily get the numbers. Henry Cooke and Thomas Coughlan are projecting, at this stage, 73 votes for and 26 against – see: Abortion vote will sail through with or without NZ First, according to Stuff survey.

And for more on how a number of conservatives, including the National Party leader, seem to be on board for at least the first reading of the legislation, see Henry Cooke and Thomas Coughlan’s Simon Bridges will vote for abortion bill at first reading but wants more safeguards.

Bridges’ own position seems to have become more liberal lately, as this article reports that he now supports “the changes to the law for abortions in the first 20 weeks”, with him saying “the position pre-20 weeks of gestation is one where law and practice should match, they haven’t, so I accept that’s the right decision” – which is a turnaround from his position last year in which he insisted that the current rules don’t need fixing.

The same article delves into the positions of some of the more socially conservative Labour MPs, and also finds increasing support for change. For example, “Aupito William Sio, Peeni Henare, and Kris Faafoi all said that they were ‘leaning’ to or ‘probably’ voting yes. None opposed the bill.” Similarly, “Several MPs who voted against the End of Life Choice Bill on euthanasia were supportive, such as Health Minister David Clark and backbencher Kiri Allan. Some members, like Maori caucus co-chair Meka Whaitiri, said they would vote for the bill at its first reading, but would not commit to voting the bill any further.”

But there will still be some Labour MPs who vote against it, and are not willing to speak publicly about their stance. For example, the article reports: “Nanaia Mahuta refused to say how she would vote, simply describing it as a conscience issue.”

The Government’s conservative reform

Despite some degree of positivity that politicians are finally catching up with the broader public mood in favour of increased liberalisation, the details of the Government’s reform are finding less favour with many advocates of reform.

After all, the Government bill really amounts to only partial-decriminalisation instead of full decriminalisation of abortion. This won’t satisfy those who believe that abortion should fundamentally come down to a “woman’s right to choose”. Instead of going along with that demand and principle, Justice Minister Andrew Little has very determinedly decided that it’s a woman’s right to choose up until 20 weeks of pregnancy, but women lose the right after that, by which it essentially remains a criminal issue rather than a health issue.

I wrote about the details of this issue in a previous column, earlier in the year – see: Abortion reform in question. This pointed to an array of health professionals and reform advocates wanting a more progressive result than the Government was looking to deliver.

And it has come to pass that the Government has gone with a watered-down and relatively conservative option for moderate reform. This has caused some to complain that Labour have let the reform movement down, as they have on other important issues. For example, the No Right Turn blogger says it’s “another example of Labour chickening out. They promised to listen to medical professionals, and they haven’t. While a technical delivery on their promise, its a substantive failure” – see: Labour chickens out on abortion.

Here’s the main point: “Health professionals were crystal clear in supporting complete decriminalisation. But instead of that, Labour has taken the most conservative option, then made it worse, imposing a test for women to access an abortion after 20 weeks. Such abortions are almost always performed for medical reasons, and so should be a health issue, but instead Labour is going to make women continue to endure the wagging finger of society if they need proper medical care.”

The blogger argues that Labour MPs need to push amendments to make the legislation more radical, but fears they will “refuse to in order to avoid upsetting their bigot rump and their conservative coalition partner.”

RNZ has published one anonymous opinion piece on the issue, which criticises the reform bill for retaining much of the status quo for pregnancies beyond the 20-week mark, saying: “The proposed bill is not much better. It sends the message that you may know what’s best for yourself up to 19 weeks, six days, 23 hours and 59 minutes. Once the clock ticks over at midnight, boom, a doctor suddenly becomes the expert on your life. How can a country that trusted women enough to allow us to vote, not trust us to know our own situations?” – see: Abortion is a medical necessity, reform is needed.

According to this writer, “The proposed bill has been called a “mixed bag”. To be blunt, it’s a bit of a cop-out. Sure, the government took a turn in the right direction by making it a health issue and proposed some steps to ensure better access to abortions. But it does not go far enough.” They urge the Government to go further, and to use this moment to create a legacy rather than just another compromise fix.

Similarly, leftwing commentator Gordon Campbell is disappointed that the reform falls so far short of what has been required for modernisation: “Abortion is to be medicalised, rather than criminalised. That’s progress, I guess. If that sounds grudging… it is. Undoubtedly, the proposed law will be better than the 1977 legislation it replaces. Yet surely, you’d hope there would be progress, 42 years down the track” – see: On reforming the abortion laws.

Campbell doesn’t believe that abortion control should simply be converted from being a criminal issue to a medical one: “there is no objective need for the level of medicalisation envisaged by the current Bill. The message being: the ultimate control of women’s reproductive choices is being handed over from the Police to doctors. That’s supposed to be counted as progress.”

And if the issue is a simple health one then why, Campbell asks, isn’t it being treated like this by the Government and Opposition: “If abortion really is just a medical procedure, then the Health Minister should be owning it, and promoting it as part of the government’s health programme. That’s what a grown-up country would do.” He argues against the vote being a conscience one.

Campbell also makes the case that the legislation is entirely backward in assuming that abortion has to be a “medicalised procedure enacted by a doctor”, when the trend – especially in other parts of the world – is towards the use of chemical abortifacients: “they offer a safer, less invasive means of abortion than surgical means. It is a process that can be supervised by a nurse.”

Here’s Campbell’s main problem: “In other European countries, the two pills involved are moving towards being available as an over-the-counter abortifacient. The reforms being proposed in New Zealand do not recognize this trend. For the foreseeable – and by that I mean potentially for decades to come – the women who import such drugs and/or those people who help them to access such drugs will continue to be prosecuted under the Crimes Act.”

Referendum debates

The law reform itself has been overshadowed in recent days by New Zealand First’s desire to make reform contingent on a public referendum – see Jenna Lynch’s Justice Minister Andrew Little caught off guard as New Zealand First hints at abortion referendum.

It seems that in the months of negotiations between Andrew Little and New Zealand First’s Tracey Martin, the traditional stance of her party in favour of referendums on moral issues like abortion never arose. But then in NZ First’s caucus meeting this week, MPs pushed back, despite – or perhaps, because – Martin had said publicly the same day that no referendum was necessary.

According to Henry Cooke: “It’s understood NZ First members have been giving the party some grief about the fact it is demanding a referendum on euthanasia but not abortion” – see: Winston Peters pulls rug out from under Andrew Little – again.

Cooke gives his view: “Little has every right to be furious with this blindside from NZ First, even if he can’t quite say it. He’s already softened the bill to keep NZ First happy, shrinking the number of weeks that an abortion can be accessed without a statutory test. But he shouldn’t be surprised. Peters has used the Parliamentary process to have several bites of the same cherry before, and has also humiliated Little in the past over three strikes. At the end of the day these people are from different parties and will be fighting over the same voters in about a year’s time.”

Of course, New Zealand First wanting a referendum doesn’t necessarily impact on the legislation at all. The party has already signed off on the bill being introduced to Parliament tonight. It simply means that the party is likely to put up an amendment to the bill to include a referendum. This wouldn’t happen in practice until after the second vote on the bill, and it’s very unlikely to be successful. The big question is whether New Zealand First MPs will vote for the bill without a referendum being put in place.

This is all best dealt with in Claire Trevett’s column, NZ First abortion referendum ploy leaves sour taste (paywalled). She argues that no one should be surprised that Winston Peters would want a referendum: “It was not that long ago both NZ First’s leader Winston Peters and Martin herself had provided statements setting out the party’s position that abortion was for a referendum. Given that, if it was not raised in caucus perhaps Martin should have raised it herself to ensure it would not become a stumbling block later.”

Trevett suggests that the re-positioning by New Zealand First could simply be one of empty strategy: “NZ First could simply be posturing to allow Peters to say the party had tried to stick to its policy but was thwarted by others”.

So, who’s to blame for the miscommunication and incorrect assumptions about New Zealand First’s policy on referendums? Mike Hosking points the finger at both Tracey Martin and Andrew Little – see: Winston Peters again pulls the wool over Labour’s eyes on abortion referendum.

And today Winston Peters has struck back, accusing Andrew Little of bad faith and blindsiding New Zealand First – see: Winston Peters takes aim at Labour over abortion law reform.

There is now some very interesting discussion going on about the role of referendums in determining law. For the best of these, see Sam Sachdeva’s Why Winston Peters is wrong on referendums, and today’s editorial in The Press: Abortion debate: let the politicians decide.

Finally, for satire on these issues, going back a long way, see my blog post, Cartoons about abortion law reform in New Zealand.

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