Hopefully given it’s prochoicenz blogswarm day there will be plenty of other great witticisms to compensate for my strung-out brain and my attempt at a slogan will be overwhelmed by catchier wordplay.
Today is World Health Day, and a perfect opportunity to discuss the continued presence of abortion in the Crimes Act in NZ. Abortion is healthcare, not a crime. Check out the rest of the amazing #prochoicenz blogswarm here
I am the first to admit that having only done one year-long paper on criminal law does not make me a jurisprudential voice of authority on what behaviour qualifies as ‘criminal’, but I think it’s something we all (as people affected by the law) have a right to debate and discuss.
Firstly, what is a crime? Let’s check this out.
The Collins English Dictionary defines it:
n 1. (Law) an act or omission prohibited and punished by law
2. (Law) a. unlawful acts in general a wave of crimeb. (as modifier) crime wave
3. an evil act
4. Informal something to be regretted it is a crime that he died young
[from Old French, from Latin crīmen verdict, accusation, crime]
So from this definition, we can see that strictly speaking- it’s something prohibited by law. If we read on and look at the definitions that go a bit further, we can see that it’s something ‘evil’, or something to be regretted. Right.
Now let’s look at punishment, shall we? One critical theorist on criminal punishment is Herbert Packer. He holds that the first fundamental component is something “done to a person that ze would not wish to have done to hir” (gender-neutral additions my own). The second defining component is the predominant justification for imposing punishment: the prevention of/retribution for offending.
The relevant parts here are s183, which states procuring abortion by any means is a crime;
Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to procure the miscarriage of any woman or girl, whether she is pregnant or not,—
(a) unlawfully administers to or causes to be taken by her any poison or any drug or any noxious thing; or
(b) unlawfully uses on her any instrument; or
(c) unlawfully uses on her any means other than any means referred to in paragraph (a) or paragraph (b).
(2) The woman or girl shall not be charged as a party to an offence against this section.
and s187a, which defines ‘unlawful’ by setting out the criteria for making an abortion lawful: danger to the mother’s physical or mental health, pregnancy following rape or incest, serious physical or mental deformity of the fetus.
Cool. We’ve got a bit of context. Now… how does this work in with analysing the criminality of abortion, and the punishments therein?
Surely, logically, it’s in the crimes act because it’s something everybody can agree is ‘evil’ and should be prevented, coz of the awful social impacts, yeah? Surely we want it in the crimes act because we want criminal sanctions against it, and we think all who get an abortion without serious ‘mental’ risk are deserving of punishment, right?
Wait. No! It appears that there isn’t actually consensus that abortion is evil, or that the definition of ‘unlawful’ fits social views of when abortions should be allowed, or even that people shouldn’t be able to give themselves abortions!
It also appears that we don’t think the provisions around seeing certifying consultants to ascertain the danger to physical or mental health are working fine
and furthermore, it’s clear that an overwhelming majority of the abortions provided in NZ are done so on mental health grounds. It sure seems to me like a lot of the people who get abortions do so because it’s THEIR body, they didn’t intend to get pregnant, and they can’t accept all the demands that having a(nother) child entails. Let’s not forget that having an abortion is SAFER than having a baby.
So. We have a crime that isn’t accepted as evil, a ‘punishment’ that’s barely ever needed, as medical practice has filled a lot (but not all) of the gaps in ensuring safe and statute-compliant services are provided to all who want them, and we have a problem with the way services are running right now.
As always, I apologise if my reasoning has perhaps not been clear enough, or if I haven’t outlined the basic assumptions I’ve made- but it sure seems to me like we have a bad, unnecessary, and poorly-working law.
It sure seems to me like we don’t want to be putting criminal stigma onto those who make the decision not to reproduce.
It sure seems to me like there is a real need for decreasing the wait time of procedures- a move which would mean more people could get early-term medical abortions (a procedure which requires taking 2 pills, much less invasive, traumatic, and painful than a surgical abortion)
It sure seems to me like it’s time the legislature realises abortion as what it is– a medical procedure– and ends the implied assumption in the Crimes Act that every person carrying a foetus is under a duty to carry it to term.