Abortion regulation – in New Zealand and the USA – belongs in their democratically elected legislatures 

 

Guest column by Nicholas Kerr 

Prime Minister Jacinda Ardern’s comments about the US Supreme Court’s recent ruling on abortion inadvertently help explain why the court was right to overturn Roe v. Wade and return the issue to the states.  She noted that New Zealand “recently legislated to decriminalise abortion and treat it as a health rather than criminal issue.”

The passage of that legislation was only the latest in a long and incremental series of policy changes on the subject that have taken place over the past century. 

While many policy issues in New Zealand have divided the country, the divisions have tended to be short-lived as each side had their voices heard and the debates concluded.

As I think back to my days growing up in New Zealand during the 1980s and ‘90s, I recall many controversial public policy debates, but abortion isn’t one of them.

When I first moved to the United States almost a quarter of a century ago, it struck me as bizarre that this issue had and continued to polarise the country. It wasn’t until I learned the history of abortion regulation here and 1973’s landmark ruling that I understood why.  

As in New Zealand, many restrictions on abortions had been slowly removed at the state level in the decades prior to 1973. Most analysts expected this incremental trend to continue as legislatures across the country went through the motions of debating both sides of the issue.

Roe v. Wade brought this civic tradition to a crashing halt and in one fell swoop resulted in a nationwide abortion policy more extreme than New Zealand’s parliament has put in place over the almost 50 years that have since passed. 

The Supreme Court’s 1973 decision took the issue out of the legislative process that Jacinda Ardern rightly upholds in comparing her country’s abortion policy with that of the US. But she has things exactly backwards in decrying the court’s 2022 decision, which simply allows states and the people’s representatives to once again engage in the process the prime minister apparently favours for determining such policy in New Zealand. 

The inevitable result of the court’s intrusion into such a sensitive issue has been almost 50 years of polarisation in the US as the pro-life side lost almost any ability to influence abortion policy and the pro-choice side dug its heels in to defend what was essentially a wholesale policy win.

To make matters worse, the seven unelected judges who decided Roe did so on flimsy legal grounds. Justice Byron White, a liberal judge appointed by a Democratic president, in dissent noted that the decision was the “exercise of raw judicial power”.

The majority opinion of the current court agreed with White in carefully and thoroughly overturning the 1973 ruling. 

David Harsanyi got it right, moments after the decision, when he wrote:

“You’re going to hear somewhere near zero legal arguments today about why Roe should have been upheld.”

In all the wrath and fury of people who have since spoken out against the decision, vanishingly few have made a legal case for upholding it, Ardern included. 

Now that the regulation of abortion has rightly been returned to the country’s legislatures, we should expect to see in the USA a variety of policies that resemble those of the states of Europe. The legislative process there has also been incremental, resulting in some states being even more liberal than New Zealand such as the Netherlands and Britain, which generally permit abortions up to 24 weeks of pregnancy.

Sweden and France are less permissive at 18 and 14 weeks respectively, and Germany, Denmark and Belgium are even more restrictive at 12 weeks.

Some countries such as Poland ban it under most circumstances. 

While New Zealand Foreign Minister Nanaia Mahuta called the US Supreme Court’s recent decision draconian for taking away a women’s right to choose, she’s been oddly silent on Poland.

Like Ardern, she too apparently supports abortion policy being made in the legislature rather than the courts, using her own vote to oppose the legislation which her prime minister used to damn the US. 

My own advice to the duo would be to keep calm and carry on. The debates they both value and take advantage of in formulating abortion policy themselves are now able to be resumed in the US and will do so post haste. 

  • Nicholas Kerr holds dual New Zealand and US citizenship. He lives in Dallas with his young family and works in marketing in the tech industry. He also writes on public policy and being a dad on his blog The Kerrant (HERE).  

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