Balancing conflicting individual rights has been a political trapeze act for hundreds of years.
When the English philosopher John Locke outlined the social contract between government and the people (in 1689) he argued that everyone was endowed with natural rights to life, liberty and property. That was a great leap in thinking, but it didn’t end the debate. Debate has continued since about where you place the balance point. How does your right to property weigh against my right to life? Or my right to liberty against the Crown’s capacity to govern?
Where they place the centres-of-gravity in this multi-point balancing act is a key difference between political parties’ philosophies.
Parliament is currently considering where to place a particularly fractious balancing point and is asking for public input. The balance is between one person’s “privacy, safety and dignity” and a second person’s freedom of speech.
The details of the debate
Specifically, Parliament is asking for public feedback on a member’s bill that would enable governments to declare ‘safe areas’ around health facilities that provide abortion services. Those safe areas would be up to 150 metres from the boundaries of the facility to stop contravening anti-abortion protests.
The explanatory note to the Bill opens with the ‘why’:
“All New Zealanders deserve to have the right to access health services with their safety, privacy, and dignity protected. Many people have spoken about their experiences accessing abortion services where they have not been afforded that protection.”
The things that would be outlawed within a safe zone are currently listed as:
(a) intimidating, interfering with, or obstructing a protected person—
(i) with the intention of frustrating the purpose for which the protected person is in the safe area; or
(ii) in a manner that an ordinary reasonable person would know would cause emotional distress to a protected person:
(b) communicating with, or visually recording, a person in a manner that an ordinary reasonable person would know would cause emotional distress to a protected person
Why now - wasn’t abortion debated last year?
These safe areas were originally included in abortion legislation passed last year, but were removed in a voting kerfuffle that demonstrated why a lack of party whips makes shepherding conscience bills much harder.
The first reading outlined that the key debate over this Bill was not about abortion but about finding an appropriate balance of rights. That will likely be mirrored during the select committee hearings. The committee won’t want arguments about whether abortion is good or bad - that is not the question.
The arguments so far: excerpts from the first reading debate
The Bill has had just one debate - over whether Parliament should consider it at all. It easily passed that first reading vote (100 for, 15 against, 2 abstentions).
But first reading votes are only indicative of the question - ‘should we debate this?’. The balance of support can change dependent on how the Bill evolves after public hearings.
MPs’ speeches during that first reading emphasised that the debate is not over whether or not abortion is a good thing. The focus was broadly on the harm of the current protests and the right to health care, privacy and safety (those in favour); versus the right to protest (those opposed).
Here are a few points from the first reading speeches. Key speeches were those of the bill sponsor and the Attorney-General.
Louisa Wall (Labour Party) is the sponsor of the Bill and had a few points to make about rights.
“So within the context of this bill, there are, obviously, New Zealand Bill of Rights Act 1990 considerations about civil and political rights that we as New Zealanders have. I want to focus on section 9, and that's the 'Right not to be subjected to torture or cruel treatment'. I guess by definition, can you say that women are being re-traumatised because they've made a decision and have to run the gauntlet with people calling them murderers and showing them pictures of dead fetuses? Is that cruel and degrading? Well, actually, I say it is.”
Wall also noted rights outlined by the United Nations and the World Health Organisation:
“They also include the right of all ‘to make decisions concerning reproduction free of discrimination, coercion and violence.’ And women's reproductive rights may include the right to legal and safe abortion.”
She said that it was not just the rights of patients that the Bill sought to protect, but also the rights of health workers and quoted the health and safety regulator WorkSafe:
"Violence can take many forms – ranging from physical assault and verbal abuse to intimidation and low-level threatening behaviour. Violence or threats of violence are never acceptable.’ So I think there are two dimensions to this bill: one is, obviously, the woman or the pregnant person who's trying to access a health service; and the other, actually, is the workers at those facilities.”
In his role as Attorney-General, Labour MP David Parker offers Parliament an official opinion on whether new bills fall within the parameters of the Bill of Rights. He voted for the Bill on the first reading.
He also spoke on the Bill and noted that he is strongly in favour of abortion rights but that he thinks that the restrictions as currently defined here may go too far.
“The advice that I have received, which I reflect in the New Zealand Bill of Rights Act vet that I have tabled in the House, suggests that the drafting of this limitation of freedom of expression goes further than is necessary to achieve the purpose which it seeks to achieve. I agree with the purpose which it seeks to achieve. I have made some suggestions that have been worked up as according to the advice that I have received from the department as to how it might be limited in a way that meets the purpose of the bill whilst not infringing the New Zealand Bill of Rights Act protections that are all so important.”
National Party MP Nicola Grigg voted for the Bill on the first reading.
“If done right, it will create legislation that will create safe zones outside clinics and hospitals. If these safe zones can reduce harassment, hate speech, and intimidation that these kinds of protesters aim at these extremely vulnerable women, then that is the right thing to do.”
Labour Party MP Anahila Kanongata’a-Suisuiki voted against the Bill on the first reading.
“This Bill, I firmly believe, is the erosion of the freedom of expression… I think we should look at providing safe places for every New Zealander, woman, child, man, every gender there is. I think we have the fundamental right to do that, but not at the expense of the erosion of our freedom of expression.”
ACT Party Leader David Seymour voted for the Bill on the first reading.
“I detest the odious ogres that have been described standing outside abortion clinics. I'm not sure what else I can do to ensure that none of them are very likely to ever vote for me. However, I do believe that while they shouldn't be saying it, it is a greater evil - and the Attorney-General alluded to it - to have a government that is allowed to decide what you can and can't say.”
Labour Party MP Sarah Pallett comes at the bill from the perspective of a midwife. She voted for the Bill on the first reading.
“As Jan Logie just said, this isn't a discussion about the rights and wrongs of abortion, but, I would go on to say, about the fundamental right of people to access lawful healthcare or to provide lawful healthcare without being harassed, intimidated, or threatened, or feeling fearful.”
National Party MP Barbara Kuriger voted for the Bill on the first reading.
"I think that people will still hold their views, but to target somebody when they're in a stressful state, when they've already probably been in a stressful state - for many of them - for a long period of time, and they are going in for a private appointment is targeting a particular individual. Even if we've got concerns around the Bill of Rights Act, ethically and morally, that's not something that I perceive, as a human being, that other human beings should be doing."
National Party MP Chris Penk voted against the Bill on the first reading.
“This is, fundamentally, not a question of support or otherwise for the practice of abortion; indeed, the question is somewhat more narrow than that in scope. This House last year, I think it was - it seems like longer than that, but it was relatively recently that the House discussed more substantive issues in relation to that practice, and its collective mind was determined at that point. This is not an opportunity to relitigate that one way or the other.
“The point that is made in [the Attorney-General’s] report regarding the fact that the Bill goes further than is necessary to achieve its stated purpose is, I think, a very good one. His report is intellectually honest on this point, and it's rigorous in examining freedom of speech or freedom of expression issues. His particular point, I think, has not only theoretical weight but, actually, one very important practical implication that I do wish to bring before the House.”
- The Bill is open for submissions until 28 April. You can find details about submitting here.