Authorisation of Abortion for a "Serious Danger to Mental Health": Would Practice Stand up to the Judicial Test?

Abstract

Abortion in New Zealand is a crime unless two certifying consultants (“consultants”) believe in good faith that the woman qualifies for an abortion under the exceptions in s 187A of the Crimes Act 1961. Despite this, New Zealand has a comparable rate of abortion to that in jurisdictions in which women have a guaranteed right to abortion. It would appear that the reason for this is the consultants’ application of the exception which allows for abortion where the continuance of pregnancy would result in “serious danger … to … mental health” (“mental health exception”). Ninety eight per cent of all abortions are authorised under this exception. These noteworthy statistics led Miller J, in the 2008 High Court decision of Right to Life New Zealand Inc v The Abortion Supervisory Committee (Right to Life), to observe that: “There is reason to doubt the lawfulness of many abortions authorised by certifying consultants.” His Honour doubted that so many women would be able to establish that continuance of pregnancy would result in a risk of a recognised diagnosis of mental illness,6 which he assumed is what would constitute the necessary “serious danger … to … mental health”. Although the Court of Appeal has since ruled that Miller J’s observations have “no lawful effect”, the question of whether the consultants’ approach to the mental health exception is lawful remains up in the air. A future finding of unlawfulness could significantly impact current abortion availability. Some doubt remains as to whether consultants are applying the law as liberally as Miller J assumed. If his Honour’s doubts prove to be correct, however, current practice remains vulnerable to judicial determination of the scope of the mental health exception. This paper will test whether a Court would uphold Miller J’s assumption that “serious danger … to … mental health” must rest on a recognised diagnosis of mental illness. The main enquiry will be the meaning of “mental health”: Is “mental health” limited to the narrow definition of mental health, that is, “absence of mental illness”, as Miller J assumed? Or does it include the wide definition of mental health, that is, “mental wellbeing”, which might account for the consultants’ more liberal application? ...