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Abortion and the Law (WA)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Laws regulating abortion in Australia vary dramatically between different states and territories. Abortion was decriminalised in Western Australia in 1998. Abortion is now available on request up to 20 weeks’ gestation and after 20 weeks gestation with the agreement of two medical practitioners.

Western Australia has not yet legislated for ‘safe access zones’ around medical clinics that offer abortion services and has been criticised for ‘lagging behind’ other states in this respect.

When is abortion legal?

Under Section 334 of the Health Act 1911, an abortion is legal if:

  • The woman has given her informed consent; or
  • The woman will suffer serious personal, family or social consequences if the abortion is not performed; or
  • Serious danger to the physical or mental health of the patient will result if the abortion is not performed;
  • The pregnancy is causing serious danger to either the physical or the mental health of the woman.

If 20 weeks or more of the woman’s pregnancy have passed when the abortion is performed, the abortion is only justified if:

  • Two medical practitioners who are members of a panel appointed by the minister have agreed that the mother, or the unborn child, have a severe medical condition that justifies the procedure; and
  • The abortion is performed in an approved facility

What is informed consent?

Informed consent means consent freely given after:

  • A medical practitioner has given the woman adequate counselling about the medical risks of termination and of carrying a pregnancy to term;
  • A medical practitioner has offered the woman referrals to counselling about matters relating to the termination and carrying the pregnancy to term;
  • A medical practitioner has informed her that counselling will be available should she require it after terminating the pregnancy or after carrying the pregnancy to term.

Consent by a minor

If a woman is below the age of 16 and still being supported by a parent or parents (a dependant minor), she cannot give informed consent to an abortion without a custodial parent being notified and given the opportunity to be involved in the counselling process and in consultations between the patient and her doctor as to whether the abortion is to be performed.

A woman who is a dependant minor may apply to the Children’s Court for an order that her custodial parent/s should not be informed or given the opportunity to participate in the counselling process. The court may make such an order and such an order is final.

Abortion by unqualified person

Under Section 199 of the Criminal Code Act Compilation Act, two offences relating to abortions still exist.

It is an offence punishable by a fine of $50,000 to perform an abortion unlawfully.
It is an offence punishable by a maximum penalty of imprisonment for five years for a person who is not a medical practitioner to perform or attempt to perform an abortion.

Law reform

Unlike many Australian jurisdictions, Western Australia has not yet legislated for ‘safe access zones’ around abortion clinics. In other jurisdictions, laws prohibit protesting against abortion within a designated area surrounding any clinic where abortion services are offered. These laws allow staff and patients entering and leaving such clinics to do so without being harassed, approached or vilified by opponents of the practice of abortion.

Safe access zone laws in Victoria and Tasmania are the subject of constitutional challenges, which are yet to be decided. The WA government is awaiting these High Court decisions before releasing a discussion paper and seeking public feedback on the introduction of safe access zones in WA. The state government has been criticised by community organisations, including the Human Rights Law Centre, for being so slow to act on this issue. It has been reported that staff and patients accessing abortion clinics in WA are often harassed and intimidated and that this behaviour has been going on for years.

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