Executive summary of the legal findings of the Courts in the RTL v ASC litigation

The litigation between Right to Life New Zealand Inc (“RTL”) and the Abortion Supervisory Committee (“ASC”) concerned:

  1. The correct interpretation of New Zealand’s abortion law (which does not lawfully permit ‘abortion on demand’).

  2. The reported availability in practice in New Zealand of ‘abortion on demand’.

  3. The ASC’s stated position that it had no legal power or obligation to scrutinise/ inquire/ review the practice of consultants who were certifying abortions pursuant to the abortion law.

  4. Whether the ASC had an obligation to ensure licensed institutions provided independent counselling for women seeking abortions.

  5. Whether the unborn child had a right to life which influenced the interpretation of the abortion law in New Zealand.

The High Court on 9 June 2008 held that:

  1. The ASC had the legal power and obligation to scrutinise/ inquire/ review the practice of consultants who were certifying abortions pursuant to the abortion law.

  2. The ASC had no obligation to ensure independent counselling.

  3. The unborn child had no right to life.

The Court of Appeal on 6 October 2010 held:

  1. By a majority (2-1) that the ASC did not have the legal power and obligation to scrutinise/ inquire/ review the practice of consultants who were certifying abortions pursuant to the abortion law.

  2. Unanimously (3-0) that the ASC had no obligation to ensure independent counselling.

  3. Unanimously (3-0) that the unborn child had no right to life.

The Supreme Court on 26 August 2011 granted RTL leave to appeal regarding the powers and obligations of the ASC, but declined leave to appeal regarding independent counselling and the right to life of the unborn child. The Supreme Court heard the appeal on 13 March 2012 and on 9 August 2012 held inter alia (by a majority of 3-2) that:

  1. The ASC could not (even after an abortion had been carried out) make any inquiry or investigation into the decision-making in an individual case where that would tend to question a decision actually made in a particular case: refer paragraph [40] of the Supreme Court judgment.

  2. Although the ASC could ask a consultant how he or she was approaching decision-making in general over the whole of his or her workload under the Act, it could not question him or her about how he or she came to a diagnosis or conclusion in a particular case, even one selected at random and anonymised in the consultant’s response: refer paragraph [40].

  3. The Committee could, for example, ask about the use of particular diagnostic criteria or techniques by a consultant across the run of his or her caseload: refer paragraph [45].

  4. The ASC ought to make generalised inquiries from time to time in fulfillment of its functions of keeping under review the operation of the provisions of the abortion law and of ensuring consistency of the administration of that law throughout New Zealand: refer paragraph [46].

  5. If as a result of its inquiries the ASC believed that a consultant held views on abortion, which were incompatible with the tenor of the Act, it could be expected to consider whether to renew his or her appointment and, in an extreme case might exercise its discretion to make an immediate revocation of an existing appointment: refer paragraph [45].

  6. The ASC could also communicate its concerns, about whether a consultant may have been authorising abortions inconsistently with the abortion law, to the Health and Disability Commissioner and the medical disciplinary authorities: refer paragraph [45].

The minority (of 2 Judges) of the Supreme Court were of the view that the ASC had wider statutory powers of investigation and scrutiny of certifying consultants.