Thomas Cranmer: Act's Libertarianism Comes Under Scrutiny with Van Velden's Bid for Auckland's Tāmaki Seat

Act's focus on incumbent Simon O'Connor's views on abortion exposes the limits of its philosophy and raises questions of political opportunism.

Saturday saw the Act Party announce that its Deputy Leader, Brooke Van Velden would contest the National Party stronghold electorate of Tāmaki in the upcoming general election with the intention of unseating current MP Simon O’Connor, who has held the seat since 2011.

What was particularly noteworthy about the announcement was that Van Velden chose to begin her campaign by targeting O’Connor’s views on abortion.

“Over the past few years I've had a number of people in the Tāmaki electorate - especially women - say they do not feel represented by the local MP because of his anti-abortion views,” she said.

“I am pro-choice... I am pro-freedom... I want everybody in this electorate to feel like they can have choices over those fundamental rights.”

Leading with this issue seemed unusual, considering that New Zealand reformed its abortion laws in 2020 and the National Party leadership has made it abundantly clear over the past 12 months that they have no intention of revisiting the issue if they form the next government.

O’Connor was one of 51 MPs who voted against the abortion reforms three years ago. However, he faced criticism last year for a social media post in which he welcomed the overturning of the landmark US Supreme Court decision on abortion, Roe v Wade. Although O'Connor agreed to remove the post from social media at the request of his party leader, it briefly reignited the abortion debate in New Zealand.

At the time, Act Party leader David Seymour said he was confident that the reversal of Roe v Wade would not impact New Zealand’s recently reformed laws. However, he did observe that many of the MPs who voted against the bill in 2020 had left Parliament.

“If you look at it, in the last Parliament, the law passed by 68 to 51 and 26 of the MPs who voted against reforming our abortion laws and giving women choice two years ago have since left,” Seymour said.

“I think over time, New Zealand’s Parliament becomes more liberal, so I just don’t see a majority in our Parliament to tighten our laws.”

Seymour has been advocating for greater socially liberal influence over National for many years, as evidenced by his 2017 tweet that “abortion is an example where National needs a strong, socially liberal voice on their shoulder.” While National does have a strong liberal wing within its caucus, Van Velden's decision to target O’Connor, in part, for his conservative views on abortion implies that Act sees this as a key issue for their campaign.

This does, however, suggest that Seymour’s philosophy may have two shortcomings.

The first is that whilst abortion law reform was well overdue in New Zealand, there were legitimate concerns raised from many quarters about some aspects of the new law. In his speech during the third reading of the bill, National MP Alfred Ngaro observed that, “The views of the people have been heard: 25,718 submissions, 91.6 percent oppose this bill. These are not just church people, these are medical practitioners, these are health professionals that are out there in the field, and these are everyday ordinary New Zealanders who’ve taken the time to write a submission.”

National’s Agnes Loheni articulated the principal concern with the bill regarding late-term abortions as follows:

This has enabled the Minister to clumsily sidestep the real and worrying legal issues raised around this proposed legislation and, in particular, clause 11, because the debate before us isn't on the legality of abortion and whether it should be allowed. Despite the clever albeit deceitful casting of debate as one of pro- or anti-abortion, the real debate is about a radical liberalisation to the existing abortion legislation. Clause 11 of this bill, by every reading of it, states that it will allow for abortions up to the moment of birth, and no amount of the Minister blocking his ears and saying "No, it doesn't." changes this. It is a broad, ill-defined, vague section with no regard to the unborn child. There is far more definition and substance in the provision on conscientious objection in this bill than there is around clause 11.

Clause 11 is the crux of this bill. It provides no medical boundaries as to when a post 20 week child up to birth can or cannot be aborted. It merely allows for a clinically appropriate test to be applied, which itself is not defined.

Although late-term abortions constitute only a small fraction of all abortions performed, they raise many ethical and practical issues. In making their recommendations on the bill, the Law Commission consulted with practitioners, some of whom supported gestational limits. The Commission also noted that practitioners are more willing to perform terminations at earlier stages, but that there are limited numbers of clinicians who are qualified and experienced to perform late-term abortions in New Zealand.

None of these concerns, however, resonated with Seymour at all. In fact, what is abundantly clear from the bill’s passage through Parliament is that David Seymour’s libertarianism prioritises individual choice over social responsibility and the common good, with no consideration for the type of society we want to foster or the role of community and family, and without acknowledging the impact of socio-economic factors on individuals. It is, in essence, one of the traditional criticisms of libertarianism.

By contrast, Labour’s Minister William Sio acknowledged the role of the community in the abortion issue, stating, “So what’s my message to my family? What’s my message to the Samoan, Pacific, and faith communities on abortion? First, teach our people the value of life. Teach them early and teach them often. Teach them in the home to value the life of the unborn child. We cannot bend the tree when the trunk is thick and sturdy; it will resist.”

The second shortcoming in Seymour’s position on abortion is his support for Roe v Wade. The decision remained controversial for the fifty years that it remained good law primarily because it relied upon a highly activist interpretation of the US Constitution that found that restrictions on abortion violated the Due Process Clause of the Fourteenth Amendment.

Despite being a longtime advocate for women’s rights, even former US Supreme Court Justice Ruth Bader Ginsburg had reservations about the decision in Roe v Wade, feeling that it went too far. She stated that she preferred that it “had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force.”

Last year’s decision by the Supreme Court in Dobbs v Jackson Women’s Health Organisation overturned Roe and effectively ended the constitutional right to an abortion in the United States. But by doing so, it merely returned that decision to each State legislature. Whilst some States have tightened their abortion laws following the Dobbs ruling, many others have maintained the same level of access to abortion services as previously guaranteed under Roe v Wade.

The irony for Seymour is that the activist interpretation that enabled the decision in Roe v Wade is similar to the interpretation used by some Treaty of Waitangi scholars to support their current reading of the Treaty, particularly regarding co-governance. Both rely on the idea that the Constitution and the Treaty are ‘living documents’ that should be understood in the context of modern events and perspectives, even though neither expressly mentions the right to an abortion or co-governance.

Despite this, Seymour takes a vocal stance against using a similar approach when it comes to the Treaty, advocating for a more limited ‘textual’ reading that adheres to the natural meaning of the Treaty’s words. This approach is more in line with the philosophy of the conservative majority on the US Supreme Court that overturned Roe.

Since Seymour was well aware of concerns regarding some aspects of New Zealand’s abortion law reform and clearly disagrees with the activist interpretation used in Roe, it’s difficult not to conclude that the decision to run Van Velden in Tāmaki is simply political opportunism.

Supporting women’s reproductive rights does not necessarily mean supporting the most extreme elements of our recently reformed abortion laws or the judicial activism displayed in Roe v Wade.

It is possible to hold nuanced and reasoned positions on this complex issue. However, David Seymour’s brand of libertarianism appears to prioritise individual choice above all else, without considering the broader social implications or acknowledging the impact of socio-economic factors. This narrow ideology leads to a lack of consideration for the type of society we want to foster or the role of community and family. It also stands in stark contrast to his textual interpretation of the Treaty of Waitangi.

Thomas Cranmer, Lawyer with over 25 years experience in some of the world's biggest law firms. Thomas regularly blogs at https://cranmer.substack.com/