Abortion and the Law (WA)

Abortion was fully decriminalised in Western Australia in September 2023. In WA, it is now available on request up to 23 weeks gestation and after 23 weeks gestation with the agreement of the patient’s primary practitioner and another practitioner. Western Australia has also now legislated for ‘safe access zones’ around clinics that offer these services. This page deals with the laws surrounding abortion in WA.

Abortion offence

The only abortion-related offence that now exists under the Criminal Code Act Compilation Act 1913 is the offence contained in section 202MN. That provision makes it an offence for an unqualified person to perform an abortion (what is sometimes called a ‘backyard abortion’).

The offence carries a maximum penalty of seven years imprisonment.  

Abortion before 23 weeks

Under section 202MC of the Health Act 1911, an abortion is legal if it is performed by a medical practitioner on a person who is not more than 23 weeks pregnant.

Under section 202MD, an abortion is legal if it is performed by a prescribing practitioner on a person who is not more than 23 weeks pregnant by prescribing, supplying or administering an abortion drug to the person.

Abortion after 23 weeks

Under section 202ME, an abortion is legal if it is performed by a medical practitioner on a person who is more than 23 weeks pregnant if:  

• the primary practitioner believes it is appropriate in the circumstances; and
• the primary practitioner has consulted with at least one other medical practitioner who also believes it is appropriate in the circumstances.

In determining whether termination is appropriate in the circumstances, the following should be considered:

• the relevant medical circumstances
• the person’s current and future social and psychological
• professional standards and guidelines

Minors

Prior to 2023, a person aged under 16 could not consent to an abortion without a custodial parent being notified and involved in consultations between the patient and the doctor.

As the law now stands, a minor can consent to an abortion without parental involvement unless:

• the registered health practitioner considers that they do not have the capacity to consent to the procedure because they have not attained a sufficient level of understanding and intelligence to fully understand what is proposed; or
• the registered health practitioner considers that it is not possible to ascertain whether the patient has the capacity to content on their own behalf; and
• the patient agrees to a parent being involved in the decision.

Safe access zones

The Public Health Act 2016 now includes provisions ensuring safe access to abortion premises. These provisions are designed to ensure that women who are trying to access abortion services are not harassed, intimidated or discouraged from doing so by individuals who oppose the practice of abortion.

Under section 202P of the Public Health Act 2016, a person commits an offence if they engage in prohibited behaviour (such as harassment, intimation and making threats) within a safe access zone..

Under section 202Q of the Public Health Act 2016, a person commits an offence if they publish or distribute a recording of another person accessing, attempting to access, or leaving premises where abortions are performed.

Both of these offences are punishable by a fine of $12,000 or imprisonment for one year.

Responses to the changes

The changes to WA’s abortion laws have been hailed by many community organisations as bringing the state into line with the rest of Australia, though some opposition to the changes has also been voiced.

The Human Rights Law Centre (HRLC) put out a statement to the effect that Western Australia has safeguarded human rights by treating abortion as a medical procedure. The HRLC also cited the removal of barriers like mandated counselling as being likely to improve timely access to service.

Opponents of the changes criticised the amendment for altering the cut off point for obtaining abortion ‘on request’ from 20 weeks of pregnancy to 23 weeks of pregnancy without a medical reason.

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