On 21 September this year, Western Australia became the final Australian jurisdiction to fully decriminalize abortion. With the passage of the Abortion Legislation Amendment Bill 2023, laws on abortion in Western Australia now include abortion ‘on demand’ up to 23 weeks gestation and abortion after 23 weeks where two doctors agree that it is appropriate. The changes have been widely applauded as overdue and as bringing the state into line with the rest of the country.
What are the new laws on abortion in WA?
The Abortion Legislation Amendment Bill 2023 has simplified the process for accessing abortion in Western Australia. It has introduced the following changes:
- Amended the gestational limit for ‘on demand’ abortion from 20 weeks to 23 weeks;
- Made it easier to access abortion services when the patient is more than 23 weeks pregnant;
- Abolished all criminal offences relating to abortion with the exception of an unqualified person performing an abortion;
- Allowed minors under 16 who have the capacity to consent to abortion procedures to do so without the involvement of a parent;
- Required medical practitioners with a conscientious objection to performing an abortion to disclose their objection to the patient and to transfer the care of the patient to a practitioner who does not have a conscientious objection;
- Introduced a substitute decision-making scheme whereby the State Administrate Tribunal (SAT) can make a decision on behalf of an adult who is not capable of giving informed consent for an abortion;
- Removed the requirement for deaths of babies that are born alive after a lawful abortion to be reported under the Coroners Act.
Second reading speech
The Bill was introduced to the Western Australian Senate by the Minister for Health, Amber-Jade Sanderson on 21 June 2023. Outlining the reasons for the amendments, the Minister highlighted the ongoing need to protect reproductive rights and to further enshrine access to abortion in WA legislation.
Ms Sanderson explained that the Bill sought to:
- remedy the issues affecting people in remote communities and on lower incomes who have difficulty accessing abortion;
- address clinical barriers to accessing abortion; and
- recognize that the care and wellbeing of the patient should be put first.
She also outlined the reasons for the individual changes.
Abortion in Western Australia prior to 23 weeks
The Minister stated that the change in the gestational period from 20 weeks to 23 weeks was reflective of clinical practice and brought Western Australia into line with other Australian jurisdictions. This change would ensure that patients do not feel they have to travel interstate to access medical care.
Abortion in Western Australia after 23 weeks
The Minister stated that the changes would make it easier for patients to access late term abortions, which are generally only sought where a serious fetal anomaly has been discovered or where there is a serious risk to the patient’s health.
The changes remove the requirement for a woman in this situation to obtain the approval of two other medical practitioners who are members of a statutory panel, as well as having the support of her original treating doctor. Instead, the new laws allow the patient to access the procedure with the support of her doctor provided that one other medical practitioner agrees that it is appropriate in the circumstances.
Abortion in Western Australia and minors
Under the old laws, a person under 16 who was still supported by a parent or guardian could not consent to an abortion without the involvement of a parent or guardian. This was out of line with other states and territories. Under the changes, a minor with sufficient maturity can consent to an abortion without their parents being notified or consulted.
Reports to the Coroner
The requirement that the coroner be notified when a baby is born alive and subsequently dies after an abortion procedure has been removed. This requirement was inappropriate as the death in this situation was the result of a successful medical procedure. The resulting investigation is likely to further traumatize the patient and their family.
Abolition of offences
The Bill repeals all existing offences relating to abortion and establishes a single criminal offence of an unqualified person performing an abortion. It also makes it clear that it is not an offence for a person to perform an abortion on themselves.
Conscientious objections
The new laws still allow practitioners to abstain from performing abortions if they have a conscientious objection. However, they make it clear that the fact that a doctor has a conscientious objection to abortion does not negate the duty to provide abortion care in an emergency.
State Administrative Tribunal
Under the old laws, an adult who did not have capacity to consent to an abortion could get an abortion only in an emergency situation. Under the new laws, an application can be made to the SAT to make a decision about an abortion on behalf of a person who lacks capacity.
Responses to the new laws on abortion in Western Australia
The changes to WA’s abortion laws have been welcomed by human rights groups and health professionals as a shift towards treating abortions as a healthcare issue.
Religious groups have voiced opposition to the changes, arguing that they reflect a growing disregard for human life. The Catholic Archbishop of Perth, Timothy Costello said, ‘Life is simply too precious to be destroyed in this way.’
In 1998, amendments were passed in WA that removed most criminal penalties for seeking and providing abortions. The Abortion Legislation Amendment Bill 2023 represents the first change to the state’s abortion laws in 25 years.
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