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ave been much more upset and i would not have found a claim that she meant to do no harm particularly convicing this is because i work in a fairly conservative office and suggesting that i wear corsets would clearly not be a reasonable response to me talking about how difficult i find buying work clothes i think it is fair to expect that people who are debating things in good faith will pay attention to the conversation they are having and take contextual clues from that conversation rather than from how they talk to other people in their lives i think it is reasonable to expect that people will turn their minds even if only briefly to thinking about what the likely sore spots are for whoever they re talking to and then if they are determined to continue the discussion in good faith not say things that are likely to poke those sore spots there is of course a limit to what a person can be reasonably expected to know about a particular thing either a topic or what the sore spots are of the person they re talking to but for example i think it can be taken as read that someone who identifies as leftish and who is bothering to engage in explicitly feminist discussion should be aware of basic dialogue about how women are often treated in discussions hysterical irrational devoid of reason and unable to make coherent points simply ignored and therefore if that person should choose to use argumentation techniques which rely on ad hominim attacks like calm down you re being irrational they have absolutely no basis on which to claim that they are totally innocent and had no idea that their words could give offence when inevitably someone is offended this is what i mean when i say that i think intent is important but that claims of a lack of intent should be critically examined i think part of my problem with the discussions about intent that i ve read is that they almost invariably take place in a context where at least initially everybody is acting in good faith and nobody is trying to be malicious and hurtful in that context it isn t so much that intent isn t important as that if everybody is claiming that they genuinely had no idea they were giving offence and there s no reason to doubt that the conversation must of necessity move to what the person should have known and maybe you ought to have known x and y and z these concepts should have been familiar to you as a regular commenter on this forum a member of group b a resident of this country a citizen of the world is a tougher sell than your motivations are irrelevant i don t know whatever else it is communication is complicated posted by hazel parson at 8 15 pm 2 comments email this blogthis share to x share to facebook share to pinterest labels education language them s fightin words thursday june 2 2011 abortion supervisory committee v right to life new zealand inc i m going to start this post with a disclaimer a i m not a lawyer i m a law student so i ve got some experience reading and analysing case law and i m familiar with the workings of parliament and the courts but obviously there are a lot of people with much more experience and subject matter expertise than i have and b this was written in less than a day i haven t taken a lot of time to really consider the issues this is a first reading sort of response and c my own views on abortion can be found here and a few notes on terminology numbers in brackets eg 1 refer to the paragraph of the court of appeal judgment unless stated otherwise a pdf of the whole thing can be found here on the court of appeal website s means section of the act i the live birth bit foetuses unborn children and the new zealand bill of rights act 1990 the starting point here has to be the old common law born alive rule that is in essence that the foetus has no legally enforceable rights until born alive 52 the court of appeal also notes at 59 that the authoritative new zealand case which discusses this rule is harrild v director of proceedings 2003 3 nzlr 289 ca i haven t read that case but it s probably available online somewhere the reason foetuses have no legally enforceable rights until they are born alive is that they are totally inseparable from their mothers and of course legally enforceable rights doesn t just include things like the right to life it also would include things like the right to inherit property or to sue for negligence or to enter into a contract for the purchase of goods things which it is totally ridiculous to think of a foetus doing right to life in their defence hasn t posited that the born alive rule should be completely discarded as discussed at 51 rtl submits that the foetus has a fundamental right to life which trumps the born alive rule only to the extent of the right the court of appeal doesn t agree at 59 we do not consider that this is an appropriate occasion on which to embark on a detailed discussion of the born alive rule for present purposes we simply reject the submissions advanced by rtl under this ground of the cross appeal section 8 of the new zealand bill of rights act 1990 states no one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice bora also gives a bunch of other rights to people and most of the sections start with no one freedom of association freedom of expression right not to be subject to torture or cruel treatment as miller j the high court judge said at 99 of his judgment at 62 of the court of appeal judgment very few of the rights mentioned in the act could possibly be exercised by or on behalf of an unborn child its rights would be inseparable from those of the mother and the right to be free of unwanted medical treatment could not sensibly be asserted on behalf of the unborn child independently of the mother who if not the mother would speak for it and if their interests were in conflict how would those interests be reconciled emphasis mine essentially both the high court and the court of appeal find a foetuses don t have a right to life under bora and b it wouldn t make any sense for parliament to have intended foetuses to have a right to life under bora given the way it s drafted so rtl loses on that ground too i m totally unsurprised by what the court of appeal found on these parts of the claim it s not a radical activist decision it s actually pretty conservative given that the born alive rule has existed in the common law for hundreds of years that under s 159 of the crimes act a child becomes a human being for the purposes of the act once it has been born alive and that it d be nigh on impossible to read bora in a way that sensibly gave rights to both foetuses and the pregnant women who contain them also this part of the judgment all the bits about the law recognising a right to life on the part of foetuses is unanimous so all three judges agreed and consistent with what miller j found in the high court where the judges disagreed is on what the role of the committee is and whether they and the certifying consultants are doing their jobs properly without further ado ii are certifying consultants obeying the abortion law the majority approach the main thrust of the committee s submissions about this paras 83 to 88 is a the committee does not get and cannot get detailed case summaries of individual instances of women who get certification to receive an abortion they also don t have access to any of the women in order to take interviews for example b the role of the committee is to ensure that there s a consistent approach to accessing abortion throughout the country making sure there s enough certifying consultants and that they make more or less consistent decisions c the committee is also responsible for making reports to parliament about how many abortions are occurring who is having them and whether the law is working well it s worth noting here that section 30 5 of the contraception sterilisation and abortion act 1977 provides that when the committee is deciding who to appoint as certifying consultants under the act the following views held by medical practitioners are incompatible with being a certifying consultant a believing that an abortion should not be performed in any circumstances b believing that the question of whether an abortion should or should not be performed in any case is entirely a matter for the woman and a doctor to decide so assuming that the committee is doing their job properly and the court of appeal thinks that they are there aren t any hardline abortions for everyone who wants one people working as certifying consultants anyway so there rtl rtl on the other hand thinks that the committee should be able to require certifying consultants to keep a detailed record of the diagnoses under what ground women are certified able to have an abortion and their severity and a bunch of other stuff i can t be bothered typing out see paras 89 to 94 what the majority held at 100 is we are satisfied that none of the functions or powers of the committee as set out in ss 14 1 a i or k s 36 or any of the statutory provisions relied on by rtl either singly or in combination empower the committee to review or scruitinise the decisions of certifying consultants in relation to either the authorisation or refusal of an abortion in individual cases it follows that it is not open to the committee to form its own opinion about the lawfulness including the clinical correctness of the decisions of the certifying consultants in particular cases and at 101 we consider that the act characterises the decision of certifying consultants as a medical assessment pure and simple the legislation has been careful to immunise the committee from involvement in decisions made by health professionals on medical and clinical grounds in particular cases that s pretty unequivocal on the subject of it being a medical assessment pure and simple the court noted at 32 that there is no right of review either by the committee or anyone else of the decision of the certifying consultants this is the case even though the woman herself may wish to review a decision determining that the case for authorising the performance of an abortion had not been made out emphasis mine the right to review is a pretty fundamental part of legal processes the fact that you can t appeal a decision made by a certifying consultant really does highlight that it s a medical decision rather than a legal one and you know there is a strong case that it should be a legal decision as in you have the right to have an abortion but that s not what the law says at the moment the only purpose i can see of the committee collecting and reporting on detailed medical information of women who attempt to get certification for an abortion is in order to further political goals the majority notes at 103 that professional obligations require medical practitioners to keep detailed records of cases anyway and that those obligations are enforced by the health and disability commissioner along with other medical authorities say the committee were to for example keep detailed records on why women received abortions on mental health grounds and then present reports to parliament with statements like x of abortions are performed because otherwise the woman would be a little bit depressed or whatever insert more appropriate language if you like that isn t a medical opinion it doesn t give nearly enough detail for that it s a political opinion and a political statement and it has social and political history behind it and this is why the committee doesn t present parliament with statements like that i m leaving out the minority opinion of arnold j you can find it from para 154 of the judgment iii the majority overturns certain findings and observations of miller j the really controversial part of miller j s judgment in the high court was about whether some abortions performed in new zealand were actually legal miller j commented at 56 of the high court judgment quoted at 132 of the court of appeal decision that the approval rate of certifications seems remarkably high bearing in mind that under s 187a the consultants must form the good faith opinion that continuance of the pregnancy would result in serious danger to the mother s health and here s the part of the court of appeal judgment that pro choice people should be pleased by and i m quoting it in full because it s very definite and on our side 133 it has not been necessary for us to consider the evidence on this aspect of the case we merely record that ms gwyn submits that miller j s statements were expressed in sufficiently definite terms as to have serious potential repercussions for certifying consultants and the administration of the abortion law 134 given our conclusions on the nature and scope of the committee s functions and powers we consider that factual findings or observations of the type made by miller j were inappropriate no such findings should have been made emphasis mine and 136 with respect to the finding that cast doubt on the lawfulness of the decisions of the certifying consultants given the conclusions we have reached on the main ground of appeal such findings ought not to have been made we consider that the appropriate channels of investigation would involve either a complaint by a patient or potentially by the committee itself in which case the health and disability commissioner would become involved alternatively there might be a complaint to the police in which case the police would investigate the matter 137 accordingly we are satisfied that the findings as to lawfulness of the decision making of the certifying consultants or judicial comment about new zealand having abortion on request ought not to have been made in the circumstances of this case we conclude that they are of no lawful effect emphasis mine in short and written in strong language for the judiciary miller j shouldn t have suggested that abortion was available on request in new zealand and the only people who have the right to question the decision of a certifying consultant are the patient the committee or the police if a complaint is made to them this is consistent with the court s findings on certification being a medical assessment not for some third party to question on the grounds that they think your reason for getting an abortion isn t good enough iv some legal stuff rtl probably has a right to appeal to the supreme court on a question of law and they may yet do so i d be incredibly surprised if the supreme court found differently on any of the right to life stuff since neither the high court or the court of appeal have said anything unorthodox about it yet the stuff about the role of the committee is possibly a little more open to debate particularly since there s arnold j s dissent in the court of appeal the other interesting law student thing that came out of this is costs it s pretty common in new zealand f...