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The “Psychiatric Masquerade”: The Mental Health Exception in New Zealand Abortion Law

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Abstract

Although nearly 99% of abortions in New Zealand are permitted in order to prevent danger or injury to a woman’s mental health (the ‘mental health exception’), the reasons why mental health considerations should effectively control access to abortion are not altogether clear. This article analyses abortion case law, statutes and debates from New Zealand, the United Kingdom and the United States to attempt to explain the legal connection between mental health considerations and access to abortion. The article argues that the mental health exception evolved in response to a change in the predominant construction of women seeking abortion from ‘selfish’ to ‘desperate’, coinciding with increasing societal subscription to an expanded view of psychological harm. By conceptually accommodating both constructions of women seeking abortion, the article argues that the mental health exception usefully enabled society generally to proscribe the practice of abortion on the basis that it was unnatural and irrational, while nevertheless permitting it in cases considered to be deserving.

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Notes

  1. The concern of this article is not with whether abortion does or does not produce harmful psychological effects, but rather that its psychological consequences are considered relevant to the provision of abortion at all. It is noted for the sake of completeness, however, that a recent review of 83 studies investigating the psychological consequences of abortion (including Professor Fergusson’s) by a task force of the American Psychological Association concluded that: “The best scientific evidence published indicates that among adult women who have an unplanned pregnancy the relative risk of mental health problems is no greater if they have a single elective first-trimester abortion than if they deliver that pregnancy” (2008, p. 4, emphasis in original). As the report notes, Professor Fergusson’s study did not identify or control for the ‘intendedness’ or ‘wantedness’ of pregnancies within the control group of women who continued with their pregnancies (2008, p. 37). The possibility that this group included women whose pregnancies were wanted may have exaggerated the relative risk of mental health problems after aborting what were presumably unwanted pregnancies. The value of the study’s findings may therefore be limited.

  2. Right to Life New Zealand Inc v Abortion Supervisory Committee (unreported, HC Wellington, CIV-2005-485-000999, 28 May 2007, Ronald Young J), paras 47–48.

  3. Right to Life New Zealand Inc v Abortion Supervisory Committee [2008] 2 NZLR 825 (HC), para 56, echoing concerns expressed previously in Bayer v Police [1994] 2 NZLR 48 (CA), 52. Miller J went on to conclude that the Abortion Supervisory Committee erred in law when taking the view that it could not enquire into a medical judgement that a woman’s health would be endangered without an abortion, but declined to make declarations to this effect: at para 5, see also Right to Life New Zealand Inc v Abortion Supervisory Committee (No 2) (unreported, HC Wellington, CIV-2005-485-000999, 3 August 2009, Miller J). The Abortion Supervisory Committee appealed but the appeal was dismissed for want of jurisdiction: Abortion Supervisory Committee v Right to Life New Zealand Inc (unreported, CA387/08, 12 May 2009). The Committee filed a further notice of appeal against the decision on 20 August 2009. At the time of going to press in February 2010, this appeal has not yet been heard.

  4. This is the view taken by Right to Life, which has said that “implementation of this judgment by the Abortion Supervisory Committee should result in a substantial reduction in the number of abortions performed in New Zealand” (Right to Life 2008).

  5. R v Bourne [1939] 1 KB 687, followed in New Zealand in R v Anderson [1951] NZLR 439 (CA). The test was expressed in R v Woolnough [1977] 2 NZLR 508 (CA), 519 as whether the abortion was necessary to “preserve the mother from a real or substantial risk [to life] or of serious harm to her mental or physical health”.

  6. R v Woolnough, ibid.

  7. Wall v Livingston [1982] 1 NZLR 734 (CA), 740.

  8. Right to Life, supra n 3, paras 5, 56. Miller J held that the Committee may review the decisions of certifying consultants and require them to keep records and report on cases they have considered with a view to ensuring that New Zealand’s abortion law is being administered correctly and consistently.

  9. The United Kingdom law was automatically imported into New Zealand with its establishment as a colony in 1840. See Littlewood (1974, p. 490).

  10. English and American physicians were fighting the entry of women into medical schools (Mohr 1978, p. 168; Thomson 1995, p. 172), and the midwives and herbalists whom physicians were attempting to oust from practice were mostly female (Siegel 1992, p. 283).

  11. R v Bourne, supra n 5 at 694.

  12. R v Bourne, supra n 5 at 691. .

  13. Ibid at 692.

  14. Ibid at 694, emphasis added.

  15. Ibid.

  16. Ibid.

  17. Ibid. The abortion was arranged by the girl’s parents, an organiser of a Schools Care Committee and a prominent abortion reformer (Davies 1938, pp. 126, 142), suggesting wide support for her abortion.

  18. R v Anderson, supra n 5.

  19. Unreported, 1948, Morris J.

  20. [1958] Crim LR 469.

  21. Constitution of the World Health Organization (1946).

  22. R v Woolnough, supra n 5 at 524.

  23. See also Hindell and Simms (1971), which is dedicated “to the thalidomide mothers, for whom reform came too late”.

  24. Abortion reformer Madeleine Simms apparently attempted to invert the construction of women seeking abortion as “selfish” by characterising women who continued to produce children they could not care for as “feckless and irresponsible” (cited in Hordern 1971, p. 15).

  25. 396 New Zealand Parliamentary Debates 815 (23 April 1975).

  26. 405 New Zealand Parliamentary Debates 2212 (1 September 1976).

  27. 414 New Zealand Parliamentary Debates 3552 (11 October 1977).

  28. 412 New Zealand Parliamentary Debates 2364 (19 August 1977).

  29. Supra n 27 at 3567 (Hon Michael Connelly).

  30. Supra n 26 at 2219 (Hon Michael Connelly).

  31. 397 New Zealand Parliamentary Debates 919 (29 April 1975) (Hon John Munro).

  32. Ibid at 1029 (30 April 1975).

  33. This comment may have been the source of the title of a discussion paper issued by the Royal Commission, ‘The Psychiatric Masquerade’ (cited in Molloy 1996, p. 71).

  34. Supra n 27 at 3528.

  35. Supra n 26 at 2213.

  36. Supra n 27 at 3545 (Hon David Highet).

  37. Supra n 26 at 2209 (Hon Patrick Blanchfield).

  38. Supra n 27 at 3564.

  39. Supra n 25 at 828.

  40. Ibid at 835.

  41. Supra n 27 at 3564.

  42. Supra n 26 at 2201.

  43. Ibid at 2217.

  44. Supra n 28 at 2367.

  45. Ibid.

  46. Supra n 32 at 1376.

  47. Section 1(1) of the Abortion Act 1967 (UK) requires that continuance of the pregnancy pose only a risk of physical or mental “injury…greater than if the pregnancy were terminated”, thus apparently permitting an abortion whenever the physical risks of childbirth outweigh the risks of undergoing an abortion (which, with modern medical techniques, they usually do). Such an argument is not possible on the New Zealand provision, which although necessitating a comparison between the harm attendant on an abortion and the harm attendant on childbirth, specifically excludes the “danger normally attendant upon childbirth” from the calculation.

  48. The American Psychological Association traces American interest in the issue to President Reagan’s direction to the Surgeon General in 1987 to prepare a report on the public health effects (both psychological and physical) of abortion, and the controversy that ensued when the Surgeon General declined to issue a report (2008, p. 8).

  49. In Roe v Wade 410 US 113 (1973) the Supreme Court held that a constitutional right to privacy meant that a woman could abort her pregnancy for any reason, up until the “point at which the fetus becomes ‘viable’” (at 160), which was defined as the potential “to live outside the mother's womb, albeit with artificial aid” (usually between 24 and 28 weeks) (at 160). After viability, abortion must be available when needed to protect a woman’s life or health (at 164–165), which was defined in the companion case of Doe v Bolton 410 US 179 (1973) as “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient” (at 192).

  50. Supra n 26 at 2209 (Hon Patrick Blanchfield).

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Acknowledgments

Thanks to Julia Tolmie for her supervision of and helpful feedback on an earlier version, and to Matthew Windsor and Claire Nielsen for their insightful comments, editorial assistance and support.

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  1. Meredith Connell, Barristers & Solicitors, 55-65 Shortland Street, Auckland, New Zealand

    Charlotte Leslie

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Leslie, C. The “Psychiatric Masquerade”: The Mental Health Exception in New Zealand Abortion Law. Fem Leg Stud 18, 1–23 (2010). https://doi.org/10.1007/s10691-010-9140-7

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