Introduction

If Professor David Fergusson appeared sheepish when discussing the explosive results of his study into the psychological effects of abortion in early 2006, his discomfort was understandable. The openly pro-choice doctor expected to find no evidence that abortion had harmful consequences when he analysed the mental health histories of a cohort of women born in Christchurch, New Zealand, in the 1970s (Hill 2006). But the results of the longitudinal study, the largest and most detailed of its kind internationally (Hill 2006), unexpectedly led its authors to conclude that abortion “may be associated with increased risks of mental health problems” (Fergusson et al. 2006, p. 16).Footnote 1

As New Zealand news media and anti-abortion lobbyists were quick to report, the implications of the findings were “huge” (Hill 2006). By suggesting that undergoing an abortion is more harmful to a woman’s mental health than continuing with a pregnancy, the study appeared to undermine the legal basis for nearly 99% of abortions performed in New Zealand, which are permitted on the basis that the woman’s mental health would be endangered or injured by continuing with the pregnancy (the ‘mental health exception’) (Abortion Supervisory Committee 2008a). The significance of Professor Fergusson’s findings was not lost on anti-abortion group Right to Life, which specifically cited them in recent judicial review proceedings alleging that New Zealand’s abortion laws were being improperly enforced.Footnote 2 In the recently issued judgment in those proceedings, the “remarkably high” authorisation rate for abortions in New Zealand, and the high proportion of abortions authorised pursuant to the mental health exception, led Miller J to observe that he had “powerful misgivings about the lawfulness of many abortions” performed in New Zealand.Footnote 3

Miller J’s judgment may be interpreted as an implicit direction that the Abortion Supervisory Committee and the doctors charged with authorising abortions in New Zealand adhere more faithfully to the requirements of New Zealand’s abortion laws, which may cause doctors to consider more closely studies like Professor Fergusson’s when assessing whether a woman’s mental health would be endangered or injured by continuing with a pregnancy. This may in turn reduce the number of abortions authorised pursuant to the mental health exception and thus the number of abortions actually performed.Footnote 4 But why should this be the case? Why should the availability of abortion in New Zealand (and elsewhere) be vulnerable to the results of studies like Professor Fergusson’s? Why is “more [psychological] research” (Hill 2006) necessary to determine whether women should or should not be able to access abortion? If the relationship between abortion and preventing danger to mental health is “based on a conjecture”, as Professor Fergusson appears to believe (Hill 2006), how and why have ‘mental health’ considerations come to control access to abortion?

This article aims to explain how mental health considerations came to be legally connected to access to abortion in New Zealand’s abortion laws by undertaking a critical discourse analysis. Fairclough and Wodak (1997, p. 258) explain that critical discourse analysis views discourse (language use in speech and writing) as a form of social practice which shapes, and is shaped by, the social situations, institutions and structures which frame it. In this article, critical discourse analysis means a systematic investigation of the use of language in speech and writing to uncover and explain relevant ideologies, social relations and social structures. The texts analysed for this purpose include statutory provisions and case law, medical texts, media reports and social and parliamentary debates. The texts are drawn from New Zealand and, where relevant, the United Kingdom (from which New Zealand’s nineteenth century abortion laws were imported and whose twentieth century abortion laws New Zealand’s closely resemble) and the United States (whose nineteenth century abortion laws closely resembled those of the United Kingdom and New Zealand at that time).

The conclusion drawn from this analysis, which is the thesis advanced in this article, is that the mental health exception evolved in response to a change in the predominant construction of women seeking abortion from ‘selfish’ to ‘desperate’, coinciding with increasing societal subscription to an expanded view of psychological harm. By permitting women seeking abortion to be characterised more sympathetically than previously, the mental health exception enabled more women to access abortion and therefore usefully responded to increasing demands for more available abortion without confronting the terms on which abortion was generally restricted: specifically, that motherhood was natural and desirable and that women seeking to avoid it were irrational. The article therefore contends that changing constructions of women seeking abortion constitute a narrative explanatory of abortion regulation, one which runs parallel to the predominant construction of the issue of abortion regulation as an irresolvable conflict between a foetal right to life and a maternal right to privacy or bodily autonomy.

The article sets out this thesis by making the following arguments. First, abortion was restricted in the nineteenth century on the basis that motherhood was natural and that women who sought to avoid it were irrational. Secondly, women seeking abortion in the nineteenth century were predominantly characterised as irrational for being selfish, which corresponded with increasing female challenges to traditional gender roles in the era of industrialisation. Thirdly, from the early twentieth century, women seeking abortion were increasingly characterised as irrational for being desperate, which corresponded with the social and economic upheaval of World War I and increasing sympathy for women driven to abortion for economic reasons. Fourthly, at the same time that women seeking abortion began to be conceived of as desperate, the influence of the shell shock epidemic encouraged desperation to be translated into the emerging language of trauma and psychological harm. Fifthly, the mental health exception conceptually accommodated both constructions of women seeking abortion by permitting desperate women to access abortion but preventing selfish women from doing so. Sixthly, whether a woman seeking abortion was constructed as selfish or desperate encoded a political judgement on her sexual character and thus whether she ‘deserved’ an abortion. Finally, the neutral language of ‘mental health’ obscured the political nature of that distinction.

The Mental Health Exception in New Zealand Abortion Law

New Zealand’s abortion law consists of the Contraception, Sterilisation and Abortion Act 1977 (the CSA Act) and certain provisions in the Crimes Act 1961. Section 182 of the Crimes Act makes it a criminal offence to kill a late-term foetus prior to birth or during the course of birth unless it is done in good faith to preserve the life of the mother. The destruction of embryos or foetuses in early pregnancy is controlled by ss 183 and 186. Procuring an abortion or “miscarriage”—defined in s 182A as “the destruction or death of an embryo or foetus after implantation, or the premature expulsion or removal of an embryo or foetus”—is a criminal offence when it is done “unlawfully”. Section 183 imposes a maximum penalty of 14 years’ imprisonment for “unlawfully” administering a poison, drug or other noxious thing, using any instrument, or using any other means, with the intent to procure a miscarriage. Section 186 imposes a maximum penalty of seven years’ imprisonment for “unlawfully” supplying the means of procuring a miscarriage, the effectiveness of which is immaterial under s 187. A woman who unlawfully procures her own miscarriage faces a $200 fine under s 44 of the CSA Act but cannot be charged as a party to any offences under the Crimes Act by virtue of s 183(2) of that Act.

The crucial word “unlawfully”, which transforms an abortion into a criminal offence under ss 183 and 186 of the Crimes Act, was left undefined until 1977. Until that time, the lawfulness of an abortion was governed by the common law, which required a belief in good faith of a real risk of danger to the mother’s life or, at least since the 1930s, of serious harm to her physical or mental health.Footnote 5 The 1977 Report of the Royal Commission of Inquiry into Contraception, Sterilisation and Abortion led to the insertion of s 187A of the Crimes Act in the same year, which now provides an exhaustive list of the circumstances in which an abortion may be lawful. In order lawfully to terminate a pregnancy of less than 20 weeks’ gestation, s 187A(1) provides that the person performing the abortion must believe one of the following to be true:

    1. (a)

      That the continuance of the pregnancy would result in serious danger (not being danger normally attendant upon childbirth) to the life, or to the physical or mental health, of the woman or girl; or

    2. (aa)

      That there is a substantial risk that the child, if born, would be so physically or mentally abnormal as to be seriously handicapped; or

    3. (b)

      That the pregnancy is the result of sexual intercourse between—

      1. (i)

        A parent and child; or

      2. (ii)

        A brother and sister, whether of the whole blood or the half blood; or

      3. (iii)

        A grandparent and grandchild; or

    4. (c)

      That the pregnancy is the result of sexual intercourse that constitutes an offence against section 131(1) of this Act; or

    5. (d)

      That the woman or girl is severely subnormal within the meaning of section 138(2) of this Act. (emphasis added)

Subsection (2) provides that:

  • The following matters, while not in themselves grounds for any act specified in section 183 or section 186 of this Act, may be taken into account in determining for the purposes of subsection (1)(a) of this section, whether the continuance of the pregnancy would result in serious danger to her life or to her physical or mental health:

    1. (a)

      The age of the woman or girl concerned is near the beginning or the end of the usual child-bearing years:

    2. (b)

      The fact (where such is the case) that there are reasonable grounds for believing that the pregnancy is the result of sexual violation.

In order lawfully to terminate a pregnancy of more than 20 weeks’ gestation, s 187A(3) provides that the person performing the abortion must believe that it is necessary “to save the life of the woman or girl or to prevent serious permanent injury to her physical or mental health” (emphasis added). Sections 187A(1)(a) and (3) thus together constitute what this article refers to as the ‘mental health exception’, namely the authorisation to perform an otherwise unlawful abortion where a failure to do so would seriously endanger or injure the mental health of the woman. Sections 187A(1)(a) and (3) are essentially a codification of the New Zealand position at common law.Footnote 6

Provisions in the CSA Act lay down supplementary procedures for the authorisation and performance of abortions. Section 10 of the CSA Act establishes the Abortion Supervisory Committee, which exercises oversight of the legislation and its operation. Section 29 of the CSA Act provides that “no abortion shall be performed unless and until it is authorised by two certifying consultants”. Certifying consultants are medical practitioners given special approval by the Abortion Supervisory Committee under s 30. Section 33 of the CSA Act provides that where the certifying consultants believe that the case satisfies any of the criteria for ‘lawfulness’ in s 187A of the Crimes Act, they must issue a certificate authorising the abortion. Under s 187A(4) of the Crimes Act, a doctor who performs an abortion is entitled to rely on that certificate unless he or she believes that the abortion is unlawful.

The numbers and rates of abortions authorised in New Zealand have climbed in the years since 1980 (Abortion Supervisory Committee 2008b, p. 11). In 2007 18,382 abortions were performed in New Zealand at a rate of 20.1 abortions per 1,000 women aged 15–44 years. This is comparable to the rates reported in Australia and the United States, slightly higher than the rate reported in England and Wales, and substantially higher than the rates reported in continental Europe (Abortion Supervisory Committee 2008b, p. 14). Of the abortions performed in 2006, 98.9% were authorised on the basis of danger or injury to the woman’s mental health. While the Abortion Supervisory Committee does not report on the number of abortion applications declined, it appears from data supplied to the Court in the Right to Life case that authorisation rates may be between 96 and 99%.

The New Zealand Court of Appeal has previously indicated a reluctance to second-guess by way of judicial review a certifying consultant’s professional opinion as to lawfulness in a given case, except where there is a suggestion of “bad faith”.Footnote 7 However, the recent decision in Right to Life means that certifying consultants may now face more anxious scrutiny from the Abortion Supervisory Committee.Footnote 8 Certifying consultants are thus now under renewed pressure to ensure that they believe genuinely that continuance of the pregnancy would endanger the woman’s life, physical health or mental health before an abortion can be lawfully performed.

Medical Opposition to Abortion in the Nineteenth Century: The Emergence of the ‘Selfish Woman’

At the beginning of the nineteenth century abortion was governed by the common law and was not a criminal offence if performed before ‘quickening’—the point at which a pregnant woman first perceived foetal movement (Keown 1988; Mohr 1978, pp. 3–5). Over the course of the century, however, progressively more restrictive legislation was enacted in America (see Mohr 1978, pp. 200–225), the United Kingdom (see Keown 1988, pp. 12–47) and New Zealand,Footnote 9 the effect of which was eventually to prohibit abortion from conception unless necessary to save a woman’s life. This section argues that this significant transformation can be attributed to organised agitation by an ascendant medical profession, whose claims that motherhood was natural and that women who sought abortions were irrational, along with their vivid characterisation of women seeking abortion as selfish, informed the restrictive model of abortion regulation that resulted from their efforts.

The Doctors’ Reasons for Opposing Abortion

Nineteenth-century physicians had several reasons for opposing the practice of abortion. They knew that quickening had no special gestational significance, and their scientific understanding of human development as continuous from conception led many to the belief that abortion was morally wrong (Mohr 1978, p. 165). But doctors also had substantial professional motives in restricting the practice of abortion (Keown 1988, p. 40; Luker 1984, p. 29). The campaign against abortion began as the medical profession was struggling to attain social and professional status and was attempting to drive its competitors from the field. Abortion was largely the preserve of competitor practitioners such as herbalists and midwives, and by highlighting the dangers and abuses of abortion, physicians could encourage the state to use its criminal sanctions against their competitors (Keown 1988, p. 40; Luker 1984, p. 16; Mohr 1978, p. 160). Doctors were also concerned to restore what they felt to be “their ancient and rightful place among society’s policymakers and savants” (Luker 1984, p. 31). At a time when they could offer no convincing proof of their technical superiority, opposition to abortion enabled doctors symbolically to claim both moral stature and technical expertise and gave them a unique opportunity to claim to be saving human lives (Mohr 1978, p. 163; Luker 1984, p. 31).

Doctors’ parochial professional concerns also coincided with wider cultural preoccupations. The nineteenth century saw economic and social forces within the industrialising world begin to compromise traditional gender roles (Thomson 1995, p. 163). Physicians were defensive on the subject of changing sex roles, perhaps because their own professional struggles had a palpable gender dimension.Footnote 10 Doctors therefore had good reasons to implicate abortion in the perceived assault on prevailing gender relations in order to marshal wider support for its restriction.

The Doctors’ Arguments Opposing Abortion

The doctors’ reasons for opposing abortion are reflected in the arguments they employed against it. The doctors’ two central claims against abortion, that motherhood was natural and that women seeking abortion were irrational, were made in the emerging language of scientific physiology, which lent physicians moral and technical authority (Siegel 1992, p. 283).

Motherhood is Natural

The suggestion that a nineteenth century wife owed a duty to bear children as an obligation of marriage was uncontroversial, and married women’s requests for abortion were readily criticised as an attempt to evade the “responsibilities and duties of married life” (Thomson 1995, p. 180). Throughout the nineteenth century, however, doctors gradually redefined women’s duty to bear children to arise out of their reproductive physiology rather than their marital obligations. Bearing children was increasingly presented as “the end for which [women were] physiologically constituted and for which they [were] destined by nature” (Storer 1866, p. 76) and “the first and foremost aim of Nature” (Pomeroy 1888, p. 95). “[It was] as if the Almighty, in creating the female sex, had taken the uterus and built up a woman around it”, exclaimed one Professor Hubbard, in a typical display of physiological exuberance (cited in Thomson 1995, p. 159). In this paradigm, women’s new-found physiological obligation to protect particular embryos and foetuses was simply an aspect of a broader duty to bear children (Siegel 1992, p. 293).

Doctors were then able to draw on women’s unique physiology to define women’s health as a condition of continuous reproductive activity. “Every married woman…until the so-called turn of life, should occasionally bear a child…as the best means of insuring her health”, instructed Horatio Storer (1868, pp. 115–116). Indeed, “[i]nterference with Nature so that she may not accomplish the production of healthy human beings is a physiological sin of the most heinous sort”, thundered H.S. Pomeroy. Any attempt to do so would “necessarily cause derangement, disaster or ruin” (cited in Thomson 1995, pp. 175–177).

Women Seeking Abortion are Irrational

Physicians were able to use their growing scientific and physiological expertise to claim authoritatively that the bodies of women seeking abortions rendered them incapable of rational reproductive decision-making. Nineteenth-century medical theories of female insanity were frequently linked to the biological crises of the female life-cycle—puberty, pregnancy, childbirth and menopause (Showalter 1985, p. 55). As leading American physician Horatio Storer stated:

Woman’s mind is prone to depression, and indeed, to temporary actual derangement, under the stimulus of uterine excitation, and this alike at the time of puberty and the final cessation of the menses, at the monthly period and at conception, during pregnancy, at [labour], and during lactation. (1866, pp. 74–76)

Doctors also exploited Darwinian principles in this effort, observing: “[Women’s] nerves themselves are smaller and of a more delicate structure. [Women] are endowed with greater sensibility, and, of course, are liable to more frequent and stronger impressions from external agents or mental influences” (Carpenter 1850, p. 727). Doctors were further able to dismiss efforts to seek abortion as irrational by obscuring and discounting the physical and social work women performed in reproduction. The doctors’ physiological account of human development portrayed the embryo or foetus as a “self-sustaining and self-developing being” or “an embryonic man” (Boring 1857, p. 259), while women, by contrast, were presented as playing no part in its development (Siegel 1992, p. 288).

Women Seeking Abortion as ‘Selfish’

The form of female irrationality most frequently invoked by the doctors was a construction of women seeking abortions as ‘selfish’, which drew together in an effective way the strands of the doctors’ arguments. Presenting the practice of abortion as selfish and self-indulgent resonated with the doctors’ claims that motherhood was a biological imperative and that women were incapable of responsible decision-making.

In the decades prior to the doctors’ anti-abortion campaign, abortion was perceived as a generally marginal practice usually resorted to by single ‘young women in trouble’ who deserved pity rather than blame. But the early 1840s saw what Mohr calls a change in the “social character” of abortion: the practice became more visible, its incidence appeared to rise sharply and white, married, middle and upper-class Protestant women were perceived to be chiefly responsible for the upsurge. While a few doctors were prepared to acknowledge poverty and fear of childbirth as reasons why women were choosing to terminate their pregnancies, many began to impugn women’s motivations for abortion with increasing frequency (Mohr 1978, pp. 33, 46, 169–170).

The physicians’ public denouncements of abortion persistently portrayed women seeking abortions as selfish, egotistical creatures of fashion or extravagance, who were “determined to avoid the [labour] of caring for and rearing children” (cited in Mohr 1978, p. 89). Augustus Gardner suggested that it was a decision to “choose an indolent selfish life, neglecting the work God has appointed [women] to perform” (1870, p. 3). Dr Andrew Nebinger similarly explained that most women sought abortions because of “the inconvenience incident to pregnancy, fear of the pains and risks of [labour]; but mainly…to avoid the [labour] and the expense of rearing children, and the interference with pleasurable pursuits, fashions, and frivolities” (1876, p. 302). Such a woman had “abandoned [her] maternal duties for selfish and personal ends” (cited in Thomson 1995, p. 179) and was seen to lack “even a shadow of a sufficient reason” (Nebinger 1876, p. 11) for her actions. Rather, she was motivated by “social extravagance” (Storer and Heard 1868, p. 61), her “love of fashionable life” (Hale 1867, p. 10) and by her “desire…for a life of luxury and display” (Anonymous 1899, p. 110).

The claim that women seeking abortion were acting selfishly was given an additional dimension by doctors’ depiction of such women as sacrificing the future of the nation for their own convenience. Growing anxiety about decreasing birth rates among the ‘better classes’ was fuelling fears of national degeneracy, in which doctors were happy to implicate the practice of abortion (Thomson 1995, p. 180). The spectre of ‘race suicide’ was overtly linked to women’s refusal to fulfil their reproductive obligations. In 1903, President Roosevelt cautioned Americans that disaster awaited the nation if Americans of the “old stock [led] lives of celibate selfishness” (Roosevelt 1926, p. 161), while as late as 1922, an editorial in the New Zealand Medical Journal warned that birth control would cause “countries suitable for the white races [to be] over-run by coloured races” (cited in Brookes 1981, p. 27).

The medical profession’s persistent vilification of women’s reasons for seeking abortions also usefully disparaged the emancipatory aspirations of feminists’ claim for voluntary motherhood. Contemporary feminists who were demanding a wife’s right to refuse her husband’s advances were simultaneously advancing a general critique of prevailing gender relations as embodied in the institution of marriage. Deeming women who sought abortion to be acting “out of simple egoism” was thus an effective rhetorical response to claims that motherhood should be a choice rather than a duty (Siegel 1992, pp. 302, 310).

Shifting Social and Political Imperatives in the Twentieth Century: The Emergence of the ‘Desperate Woman’

In 1938, English obstetrician Dr Aleck Bourne became the subject of a criminal prosecution after performing an abortion on a 14-year-old-girl who had fallen pregnant after being gang-raped by a group of guardsmen (Davies 1938). He was eventually acquitted on the basis that he was acting to prevent the mother from becoming a “mental wreck”,Footnote 11 and his case is widely regarded as establishing preservation of mental health as a ground for abortion. This section argues that the transformation in the law of abortion regulation heralded by R v Bourne and entrenched later in the century can be attributed to a change in the predominant construction of women seeking abortion which was prompted by the social and economic upheaval of World War I and which a contemporary audience, primed by the horrors of the shell shock epidemic, eagerly translated into the language of psychological harm.

Pre-Bourne: What Prompted the Emergence of the ‘Desperate Woman’?

Aleck Bourne was not the first doctor, and Macnaghten J was not the first judge, to respond sympathetically to the plight of women seeking abortion during the twentieth century. In 1926, a consultant at Charing Cross Hospital argued in a meeting of the British Medical Association that a woman ought not to be forced to “pass through an ordeal she is unwilling to face” (cited in Keown 1988, p. 69), while in 1931, McCardie J summed up to a jury in the trial of a commercial abortionist in the following way:

It is plain to me that many of those who seek to uphold and administer the present law of abortion are wholly ignorant of the social problems which not only persist in our midst, but which menace the nation at the present time. In this case the now dead woman had no wish for a child. She had already borne three, aged six, five and three years. (cited in Brookes 1988, p. 39)

The “social problems” on which McCardie J placed emphasis were undoubtedly the economic deprivation and insecurity of the post-World War I slump and the Great Depression. Women were the first to be affected by post-World War I unemployment (Brookes 1988, p. 10) and women attempting to manage the family on a reduced budget later bore the brunt of the post-World War I poverty (Brooke 2001, p. 438). At the end of the 1930s, Spring Rice described the “intolerable burden” that economic deprivation had placed on women:

[She is] faced not only with the lack of sufficient income to buy for her family what is needed, but with the constant strain of uneasiness caused by the shadow of unemployment, with the fear of a reduction in an already insufficient wage, and with the fear of running into debt. (1939, p. 190)

Increasing sympathy for women seeking abortion saw Britain’s Abortion Law Reform Association (ALRA) formed in 1936, at which time concerns about the dire economic circumstances facing women seeking abortion were openly emphasised. One prominent abortion law reformer described women who sought abortions as considering “the birth of a child at a given time a threat to the welfare of the home, a burden too heavy for their own strengths or their husband’s earnings, and a disaster for the children already born” (Chance 1936, p. 13). Abortion law reformers began explicitly to charge such economic circumstances with inducing feelings of desperation in prospective mothers. “It is [English mothers] who, in the interests of decency of life, ask that abortion be available should their case be desperate” (Chance and Jenkins 1936, p. 11).

Opposition generally continued, on the other hand, to providing abortions to women with “selfish or unworthy motives” or women who presented as psychologically untroubled and self-possessed, who “would walk in perfectly boldly…and order an abortion as calmly as they would a tube of toothpaste” (cited in Brookes 1981, p. 130). But as Brooke notes, ALRA reformers consciously defined the newly emergent desperation among women seeking abortion consistently with a narrative of maternalism (2001, p. 440). Desperation was defined in such a way as to continue to exclude women deemed “irresponsible and selfish” (Chance and Jenkins 1936, p. 11) from its boundaries:

This Association deplores irresponsible behaviour with its consequences in shallow experience, illegitimacy and venereal disease, and it holds that one of the first ways of promoting responsible sexual behaviour of fine and enduring quality is to make marriage more tolerable. (Chance 1936, p. 13)

The idea that denying abortion to sexually appropriate women in economic strife could also be psychologically traumatic was made increasingly plausible by the experience of World War I. The shell shock epidemic, Showalter has argued, forced “a reconsideration of all the basic concepts of English psychiatric practice” when it was forced to acknowledge that the cause of shell shock was emotional disturbance produced by the trauma of warfare (1985, pp. 167–170). The influence of the suggestion that psychological harm could have emotional, rather than organic, roots can be seen in the Bourne trial where a witness for Dr Bourne compared rape to shell shock, observing that “the girl had in fact been wounded, one might say she had been blown up” (Brookes 1988, p. 69).

The Bourne Decision

Dr Bourne was charged with unlawfully using an instrument with intent to procure an abortion under s 58 of the Offences Against the Person Act 1861 (UK). The case was argued on the inaccurate assumption that there was an absence of authority on the meaning of the word “unlawfully” in s 58 (Keown 1988, p. 58). For this reason, Macnaghten J was referred to the Infant Life (Preservation) Act 1929 (UK), s 1 of which excused the killing of a child during natural delivery where “done in good faith for the purpose only of preserving the life of the mother”. His Honour considered that the word “unlawfully” imported the meaning expressed by the proviso in s 1(1) of the later Act,Footnote 12 and that the words “for the purpose of preserving the life of the mother” meant more than merely “saving the mother from instant death”.Footnote 13 Rather, since “life depends on health”, he directed the jury that performing an abortion to prevent the woman becoming “a physical or mental wreck” was substantially for the same purpose as “preserving the life of the mother”.Footnote 14

The Construction of the ‘Desperate Woman’

The mental health exception tentatively laid out by Macnaghten J appears to owe much to the construction of the young rape victim at the centre of the trial. It is clear that Dr Bourne would not have performed the operation had he not believed that the girl was genuinely distressed. In a disquieting passage in his autobiography, Dr Bourne suggested that had the girl remained “normally cheerful” (Bourne 1962, p. 98), as she was when she was first admitted to hospital, he would have insisted that she continue with the pregnancy (Hindell and Simms 1971, p. 70). However, her uncontrollable weeping when he took a swab for examination “decided [him] at once that she had to be relieved of her pregnancy” (Bourne 1962, p. 98). Macnaghten J clearly agreed with Dr Bourne’s assessment, informing the jury that it was only “common sense” that carrying “in her body the reminder of her dreadful [rape] and then [going] through the pangs of childbirth must [cause] great mental anguish”.Footnote 15

However, His Honour went on to state that genuine anguish was unlikely if “[the girl] be feeble-minded or belongs to the class described as ‘the prostitute class,’ a Dolores ‘marked cross from the womb and perverse’”.Footnote 16 ‘Dolores’ was a reference to A.C. Swinburne’s controversial 1866 poem “Dolores”, whose titular character is a sexually insatiable “mistress and mother of pleasure”, at whose shrine “all the joys of the flesh” are prayers. The poem, perhaps not surprisingly, was lambasted by the contemporary audience as “libidinous”, “utterly revolting” and “unclean for the sake of uncleanness” (Harrison 1982, p. 689), so when Macnaghten J told the jury that the rape victim was not a ‘Dolores’, it was a ringing endorsement of her sexual propriety. Dr Bourne, too, was concerned with the girl’s sexual character. He described keeping her “in bed in the ward for eight days to be sure of the type of girl [he] was dealing with”. It was only when he concluded that she was “a normal, decent girl brought up in a normal, decent way” in whom “there was nothing of the cold indifference of the prostitute” that he determined to proceed with the abortion (Bourne 1962, pp. 98–99). The desperate woman embodied in the 14-year-old rape victim therefore sits alongside a more familiar construction of women seeking abortion. The “cold[ly] indifferen[t]” woman with the “prostitute mind” closely resembles the selfish woman who sought to avoid motherhood for reasons of “fashion, extravagance of living, or lust” (Storer and Heard 1868, p. 134).

Consistency with the Terms of Abortion’s Nineteenth Century Restriction

The expansion of the law that the desperate woman prompted in Bourne appears to have changed the rules on who may access abortion without disturbing the nineteenth-century doctors’ claims underlying the general restriction of abortion.

Dr Bourne shared the contemporary view that “not until the first child is born do most women feel they have achieved their ultimate function” (1962, p. 122), but it was widely agreed that in this case the girl’s youth and genuine distress made the performance of maternal duties presently “undesirable”.Footnote 17 Indeed, a concern to prevent the girl deviating from her maternal duties in the future apparently also played a part in rationalising the performance of the abortion. The psychiatrist who testified on Dr Bourne’s behalf deposed that rape resulting in a continuing pregnancy could cause “a life-long revulsion against a sex life and even marriage” and recommended abortion so that the girl would have a good chance of being mentally normal (Bourne 1962, p. 101).

Both desperate women and women who selfishly engaged in non-procreative sex, however, stood in opposition to the woman who wanted to continue with her pregnancy. As women who deviated from the maternal norm, desperate and selfish women were presented as irrational, although their irrationality was differently described. The ‘Dolores’ with the prostitute mind was irrational for intentionally trying to avoid the responsibilities for which she was created. The desperate woman was irrational because of her delicate mental state. Neither construction contemplated that women could have sound, rational reasons for wishing to avoid a pregnancy.

After Bourne: The ‘Desperate Woman’ Through the Twentieth Century

The mental health exception was affirmed in New Zealand in 1951Footnote 18 and in Britain in two further prosecutions of doctors who had performed abortions. In the 1948 trial of R v Bergmann and Fergusson,Footnote 19 Morris J reiterated that a court will not look too narrowly into the question of danger to life where danger to health is anticipated. Ten years later, Ashworth J clarified in R v Newton and Stungo that “when I say health I mean not only her physical health but also her mental health”.Footnote 20 Contemporary commentators welcomed that decision for “confirming that the law on the subject now corresponds with the accepted medical indications for terminating pregnancy” (Havard 1958, p. 605). But how did mental health become so firmly a part of “accepted medical indications for terminating pregnancy”?

Boyle suggests that an accepted system of thought began to emerge in the 1950s that allowed the incorporation of a wide range of behaviours into the notion of health and permitted a much broader interpretation of ‘psychological harm’ (1997, p. 18). Chriss suggests that the establishment of the World Health Organisation (WHO) in 1948 and its definition of health as “a state of complete physical and social well-being and not merely the absence of disease or infirmity”Footnote 21 were central to this trend (1999, p. 167). Indeed, the ALRA tried (unsuccessfully) to have the WHO definition incorporated into the Abortion Act 1967 (UK) (Hindell and Simms 1971, p. 158), while in 1977 the New Zealand Royal Commission of Inquiry considered that “it is apparent to us that the [WHO] definition has already been adopted by some practitioners as a basis upon which the present abortion law is to be interpreted and applied” (p. 148).

The area of medicine whose boundaries expanded most quickly appears to have been psychiatry (Fleck 1973, p. 180). A readiness to see mental health issues in ever more spheres of life meant that by the 1970s, mental illness had come to be seen as “[America’s] number one health problem” (Schwartz 1973, p. 163). The perception that psychiatry’s involvement in abortion regulation was simply keeping pace with the discovery of previously undiagnosed mental disorders encouraged support for psychiatry’s increasing sphere of operation:

In the period of nearly 40 years that has [elapsed since Bourne] there have no doubt been considerable advances not only in the techniques of effecting abortion but also in the knowledge of psychiatry. It is reasonable to expect that consideration of the mental health of the mother is likely to loom larger in decisions as to the justification for terminating pregnancies.Footnote 22

Accordingly, medical practitioners increasingly viewed requiring women to bear unwanted children as harmful to their mental health (Schwartz 1973, p. 140), and described threat to mental health in terms of “the desperateness of the situation (as the woman perceives it) and the extent of her vulnerability” (Hordern 1971, p. 87). One eminent English psychiatrist claimed that “termination was often indicated in asthenic women with a poor reaction to stress, the so-called ‘worn-out mothers’”, while general practitioner Evelyn Fisher supported abortion for the “desperate, distraught mother driven to suicide” as well as the “ill-housed, impoverished mother of a young family, whose husband may be sick or unemployed” (cited in Hordern 1971, pp. 30, 81).

Increasing acceptance of abortion for reasons of foetal abnormality also helped to cement the perceived connection between abortion and mental health considerations. The tragic discovery of the teratogenic properties of thalidomide and German measles in the late 1950s induced widespread sympathy for affected women, and outrage at the lengths to which they had to go to get an abortion (Brookes 1988, p. 152).Footnote 23 As the British Medical Journal advised doctors in 1960, abortion in the case of foetal abnormality could be procured on psychiatric grounds, that is, if it could be shown that the mother had great anxiety at the idea of having an abnormal child (cited in Brookes 1988, p. 151).

By 1967, the number of abortions performed lawfully in Britain had increased rapidly and 90% were carried out on the ground that the abortion would prevent psychiatric injury to the mother (Hordern 1971, p. 80), while it was an “open secret” in the United States that a woman could obtain an abortion if she could find a psychiatrist to testify that she might commit suicide if her pregnancy were not terminated (Schwartz 1973, p. 139). The medical profession in the United Kingdom, now secure in its professional status and evidently hoping to be free of legal surveillance, vocally supported abortion law reform which allowed it to meet patients’ needs while maintaining ultimate control of the abortion decision (Brookes 1988, p. 155). The Medical Termination of Pregnancy Bill 1966, which resulted in the Abortion Act 1967 (UK), gave legislative sanction to the mental health exception for the first time by permitting in s 1(1) the termination of a pregnancy if two doctors agreed that its continuance would pose a greater threat to the physical or mental health of the woman than if the pregnancy were terminated.

Parliamentary proponents of abortion legislation reform relied heavily on a construction of women seeking abortion as desperate and distressed, which was pitched alongside a construction of women seeking abortion as selfish and immoral (Sheldon 1993).Footnote 24 Lord Silkin, the sponsor of two earlier Bills proposing abortion liberalisation, identified that the proposed reform was intended to cater for “the prospective mother who really is unable to cope with having a child, or another child, whether she has too many already or whether, for physical or other reasons she cannot cope” (cited in Sheldon 1993, p. 39). Similarly, parliamentarian David Owen observed that:

Such a woman is in total misery, and could be precipitated into a depression deep and lasting. What happens to that woman when she gets depressed? She is incapable of looking after those children so she retires into a shell of herself and loses all feeling, all her drive and affection. (cited in Sheldon 1993, p. 39)

While the triggers of psychiatric injury have expanded to include having many children, an intolerable housing situation or a “drunken or otherwise inadequate husband” (cited in Sheldon 1993, p. 10), and women other than young rape victims were deemed candidates for desperate womanhood, the desperate woman continued to remain aloof from any kind of selfishness or immorality. Desperate women were in fact motivated by their maternal instinct, seeking an abortion “because of their feelings of responsibility to their husband and family, and because of their maternal instinct towards their existing children” (cited in Sheldon 1993, p. 12).

Constructions of Women Seeking Abortion in New Zealand Abortion Regulatory Discourse

The Report of the Royal Commission of Inquiry into Contraception, Sterilisation and Abortion, a spate of legal commentary and reformist literature, as well as numerous heated parliamentary debates considering three abortion-related Bills made the mid- to late-1970s a crucial period in the abortion debate in New Zealand. This section argues that constructions of women seeking abortions as either selfish or desperate underpin the debate preceding the enactment of the mental health exception in 1977.

The ‘Selfish Woman’

The suggestion that women seeking abortion were irrational for their attempted derogation of their maternal duty was strongly articulated in both parliamentary debates and in submissions to the Royal Commission of Inquiry. The Royal Commission stated that:

It is well known that the natural biological changes in a mother during early pregnancy may, whether the pregnancy is expected or not, cause her to become somewhat unstable emotionally… These reactions and responses are perfectly natural and normal… The mother in fact derives fulfilment and comfort from carrying out an important and natural biological role. (cited in Molloy 1996, p. 75)

Similarly, Dr Gerard Wall told a story in Parliament of an Auckland medical practitioner who had looked after a woman through four pregnancies:

As so many do, she rejected totally the idea of pregnancy each time it occurred. She said she would kill herself, she would do anything, that the doctor must get rid of it. Being a wise man, he got her through it, and by the time each baby was approaching delivery she and the doctor were able to laugh heartily over her former feelings.Footnote 25

Abortion opponents presented those women who persisted in seeking an abortion, despite being made aware that they should not trust their feelings of rejection towards their pregnancy, as selfish and irresponsible. A woman should not be left “arbitrarily to decide, for whatever reason—it may be no more than her own comfort and convenience—to destroy the child she is carrying”, declared Jim Bolger,Footnote 26 while Manuera Couch condemned “the idea of a sort of slot-machine abortion system that could make a child’s life or death the subject of a passing whim”.Footnote 27 Even proponents of more freely available abortion invoked a construction of some women seeking abortion as selfish, with Dr Allan Finlay cautioning that “individual liberties” were “not to be construed as individual whims or individual caprices”.Footnote 28

Portrayals of women seeking abortion as selfish often rested on the assumption that they had been in a position to control the occurrence of sex and thus conception. As one legal commentator noted, “in so far as the woman is concerned who has become pregnant as a result of consensual intercourse, it is difficult to see how it is that she has not made a decision in placing herself at risk” (Pope 1970, p. 481). Unwanted pregnancies could therefore be avoided through “standards of behaviour”Footnote 29 or the exercise of “self-control”.Footnote 30 It was “because of adequate precautions not being taken, or because people behave irresponsibly…that a woman finds herself in a condition she would prefer not to be in”.Footnote 31

The construction of women as selfish extended to allegations that women would fabricate or exaggerate negative psychological consequences of continuing with a pregnancy. John Luxton, for example, warned that he knew “that a good actress can convince a doctor that, because her mental health might be in danger, her pregnancy should be terminated”.Footnote 32 While having earlier accepted that a risk of suicide could be accepted as a risk to mental health (Royal Commission 1977, p. 204), the Royal Commission later observed caustically that “women who are refused abortion sometimes threaten suicide. The evidence would, however, suggest that few ever resort to it” (1977, p. 260). The Royal Commission also appeared to accept the opinion of a New Zealand psychiatrist, Professor J.S. Werry, that “there is little doubt that most abortions are performed ‘on compassionate grounds masquerading as psychiatric’” (1977, p. 204).Footnote 33

The ‘Desperate Woman’

The dominant construction of women seeking abortion, however, was that of a desperate, distressed woman in need of help from her doctor in order to parent her existing children more effectively. Bill Rowling stated that “surely it must be assumed that a woman seeking an abortion is in a state of very considerable distress”.Footnote 34 Colin Moyle declared that his duty as a Parliamentarian extended to “women in distress in these circumstances”.Footnote 35 The suggestion that women were “in distress, and sometimes in a state of shock”Footnote 36 led many to advocate “proper and constructive counselling and help”.Footnote 37

Some commentators particularised women’s distress in terms reminiscent of the 1930s abortion reform rhetoric. Richard Walls, for instance, referred to “the trauma of the pregnant 14-year-old to the distress of the 45-year-old mother of eight who has been forced to bear yet another child she did not want”.Footnote 38 One conservative legal commentator was prepared to admit that “[t]here are undoubtedly cases in which the requirements of existing families are placing intolerable strain on the emotional, physical and financial resources of parents” (Pope 1970, p. 481). David Highet worried that there was potential to exploit “women desperately requiring abortions”,Footnote 39 while Mary Batchelor warned against placing women in a situation “where they must take their lives in their hands”.Footnote 40

The construction of desperate women as deserving of abortion was supported by the argument that desperate women could not fulfil their mothering potential in their delicate state. Richard Walls also suggested that “the misery experienced by many children who, through no fault of their own, find themselves thrust into an unwanted and uncaring situation” was of just as much concern as the predicament of the mothers themselves.Footnote 41 A mother in a state of anxiety and misery was said to “jeopardise[] the psychological development of her own small children” (ALRANZ 1977, p. 22–23).

Reference to potential danger to mental health itself did not feature prominently. However, where mentioned, Parliamentarians explicitly linked the concept of danger to mental health with their perception of women seeking abortion as distressed and desperate. David Highet made clear that he was not in favour of abortion on demand, but thought that “there are cases where abortion is the backstop to avoid distress, a breakdown in mental health, or a life placed in danger”.Footnote 42 Similarly, Marilyn Waring asked fellow Parliamentarians to consider the procedural hurdles their wives or daughters “in distress, under social pressure, and with her medical or psychiatric health endangered by pregnancy” might have to face if the Bill was passed.Footnote 43

The Rejection of the ‘Rational Woman’

Feminist activists were critical of the fact that in order to obtain abortions women had to present themselves as psychologically disturbed, while this presentation itself necessarily undercut their decision to terminate their pregnancy (Molloy 1996, p. 78). One contributor to the feminist magazine Broadsheet caricatured the presentation of women as desperate, suggesting that a psychiatrist would “rarely recommend an abortion without sterilisation, which limits the type of patient for whom he will recommend a termination of pregnancy. Seven children, poor health and a drunken husband are the sort of criteria he appears to need” (Anonymous 1973, p. 5). Rather, abortion reform groups the Abortion Law Reform Association of New Zealand (ALRANZ) and the more hard-line Women’s National Abortion Action Campaign (WONAAC) advanced a presentation of women as rational and capable of making a responsible decision not to continue with a pregnancy. Feminists described women as seeking abortion “when they do not want the child they are carrying”, and argued for “the decision whether to continue [a] pregnancy [to be] a matter for the woman concerned and her doctor” (Fraser 1972, p. 6).

The feminists’ arguments found a parallel in the parliamentary speeches of Whetu Tirikatene-Sullivan, who criticised the Contraception, Sterilisation and Abortion Bill as contravening “a woman’s personal liberty, because freedom from unwanted reproduction is the very essence of women’s equality”.Footnote 44 Tirikatene-Sullivan’s proposed amendment, which would have made abortion a decision between a woman and her doctor, was unsuccessful. Her alternative construction of women seeking abortion as unable to “cope with carrying a pregnancy through to full term”,Footnote 45 and in “a dire psychological situation of crisis”,Footnote 46 is what eventually gained the most support.

The Effect of Framing Abortion Availability in Terms of Desperation and Danger to Mental Health

New Zealand’s framing of availability of abortion in terms of avoiding danger to mental health means that an abortion is generally permissible only where the psychological harm attendant on a continued pregnancy outweighs the psychological harm attendant on an abortion. Studies like Professor Fergusson’s, which compare the psychological harm attendant on a continued pregnancy and that attendant on an abortion, are therefore relevant to the availability of abortion. Interestingly, studies of this sort may be less relevant in the United Kingdom, where mental health considerations assume less significance in abortion regulation because of the slightly different wording of that jurisdiction’s mental health exception.Footnote 47 Oddly, interest in abortion’s psychological consequences appears to be highest in the United States,Footnote 48 where mental health considerations are generally relevant only when an abortion is sought after “viability”.Footnote 49 This may be because health considerations appear to offer to American abortion opponents a way to undermine or challenge collaterally the final resolution on abortion regulation reached by the Supreme Court in Roe v Wade, or because health considerations can usefully disguise or authenticate underlying political, religious or moral reasons for opposing or supporting abortion.

Unlike the United States, where regulation of abortion using a ‘rights’ paradigm encourages politicisation and moralisation of the abortion regulation debate, regulation of abortion is ‘neutralised’ in the United Kingdom and New Zealand by the use of a medical regulatory paradigm. Because ‘danger to mental health’ is an explicitly medical assessment, the mental health exception entrusts to doctors, not women, the authority to decide whether an abortion is justified in any particular case, and makes access to abortion appear to be determined by ‘neutral’ clinical judgment (Sheldon 1995, p. 105). Decisions about who can access abortion therefore appear to hinge on objectively determined, empirically observable physiological or psychopathological ‘facts’. It is difficult to suggest within this model that ‘objectively determined’ medical diagnoses might be redolent with normative judgments about women’s roles, yet the history of the mental health exception suggests that women permitted to access abortion on that basis are only those deemed deserving of the indulgence.

The clinical ‘neutrality’ that the mental health exception lends to abortion regulation also effectively suppresses information suggestive of women’s gender-based disadvantage. As Becker argues, “[t]he medicalisation of human problems constitutes a type of social control that obscures the contribution larger social forces make to their development” (2005, p. 169). Framing access to abortion as an issue for medical determination, in other words, diverts attention away from the socio-political factors which contribute to the incidence of unwanted pregnancy (Sheldon 1997, p. 150). The distress that some women feel at having to carry an unwanted pregnancy is also rendered personal and pathological by application of the clinical label ‘mental ill health’. Parliamentarians’ focus on counselling for women experiencing unwanted pregnancyFootnote 50 rather than on the socio-political conditions of reproduction recalls Showalter’s claim that “[m]edical management has replaced moral management as a way of containing women’s suffering without confronting its causes” (Keywood 2000, p. 333).

Conclusion

That debate still rages over Professor Fergusson’s unexpected study results should not be surprising. The inability of the mental health exception to explain why women should still be able to access abortion even if studies like Professor Fergusson’s suggest it may potentially increase their risk of depression is the natural legacy of framing access to abortion in terms of mental health. But if Professor Fergusson’s findings seem intuitively irrelevant to the question of abortion’s continued provision, perhaps that is because they are. A critical discourse analysis of the history of abortion’s regulation reveals a continued preoccupation with the type of woman perceived to be seeking abortion, and suggests that the mental health exception is a conceptual accommodation of constructions of women seeking abortion as either selfish or desperate. But while it may have usefully achieved a generally stable consensus on abortion regulation, persisting in what the Royal Commission of Inquiry called a “psychiatric masquerade” (cited in Molloy 1996, p. 71) postpones a desirable assessment of the socio-political considerations underlying abortion regulation. Professor Fergusson’s findings are not, as Right to Life has argued, a reason to restrict access to abortion; they are, however, an excellent reason to revisit the terms of that access.