WA's restrictive new abortion laws

The following article is abridged from a paper written by VANESSA BOSNJAK,
MARGARET KIRKBY, LEAH MASON and JENNY RYDE for Women's Abortion Action
Campaign (WAAC) analysing the new laws on abortion passed by the WA parliament
last month.

 

In its final form, the Davenport Bill proposes new sections 199 and
259 of the WA Criminal Code, replacing the old sections 199, 200, 201 (related
to abortion), plus section 259 (only partially related to abortion), which
have been repealed.

With these changes, women in WA can no longer be charged under the criminal
statutes for "unlawfully administering to herself any poison or other
noxious thing". However, since no woman in Australia has ever been charged
for having an abortion, this change merely formally recognises current
practice in abortion law.

The new section 199 bolsters the power of the medical profession over
women's bodies and lives. To be lawful now, an abortion must be performed
by a medical practitioner. This closes off the option of nurse practitioners
such as midwives learning how to perform abortions.

This new section requires an abortion to be "justified", a word which
has not previously appeared in any state/territory crimes act or criminal
code in relation to abortion.

It also creates the possibility for referral agencies and other services
to be brought under the ambit of the criminal code. Sub-section (5) specifies:
"a reference in this section to performing an abortion includes a reference
to — (a) attempting to perform an abortion; and (b) doing any act with
intent to procure an abortion".

Could "any act" include publishing a pamphlet about where you can
get an abortion? Could it include publishing a political campaign leaflet
about abortion in WA? Anti-abortionists are probably already working out
how "any act" could be interpreted to open the way for attacks on WA
women's access to abortion.

The new section 259 states: "A person is not criminally responsible
for administering, in good faith and with reasonable care and skill, surgical
or medical treatment —

(a) to another person for that other person's benefit; or

(b) to an unborn child for the preservation of the mother's life, if
the administration of the treatment is reasonable, having regard to the
patient's state at the time and to all the circumstances of the case."

The key difference between the old and new sections 259 is in the use
of the words "administering" rather than " performing"; "surgical
or medical treatment" rather than "a surgical operation"; and "to an
unborn child" rather than "upon an unborn child". Since medical technology
has advanced to the point where surgery can now be performed on a foetus
whilst in utero, the legal interpretation of this section may not be as
intended.

Changes to the health act

Davenport's bill also creates a section 334 of the WA Health Act 1911 with
a multiplicity of sub-sections outlining the circumstances in which an
abortion is "justified".

Sub-section (3) outlines four circumstances wherein an abortion is "justified",
these being: "the woman concerned has given informed consent; or the woman
concerned 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 woman concerned will result if the abortion is not performed;
or the pregnancy of the woman concerned is causing serious danger to her
physical or mental health". The word "serious", open to various interpretations,
is used three times.

Sub-section (5) defines "informed consent" to mean consent freely
given by the woman where —

(a) a medical practitioner has properly, appropriately and adequately
provided her with counselling about the medical risk of termination of
pregnancy and of carrying a pregnancy to term;

(b) a medical practitioner has offered her the opportunity of referral
to appropriate and adequate counselling about matters relating to termination
of pregnancy and carrying a pregnancy to term; and

(c) a medical practitioner has informed her that appropriate and adequate
counselling will be available to her should she wish it upon termination
of pregnancy or after carrying the pregnancy to term.

The battles which will have to be fought over the meaning of "properly,
appropriately and adequately" can only be imagined.

Of equal concern is the constant reference to both "termination of
pregnancy" and "carrying a pregnancy to term". This implies that women's
judgement cannot be trusted — that women not only need to have explained
to them the risks and complications of the operation they have chosen to
undergo, but also must have their heads filled with comparative information.

Sub-section (6) specifies that "a reference in sub-section (5) to a
medical practitioner does not include a reference to — (a) the medical
practitioner who performs the abortion; nor (b) any medical practitioner
who assists in the performance of the abortion".

This introduces a two-doctor hurdle for all WA women trying to access
abortion services. First they will have to go to a GP or family planning
doctor who is required to "properly, appropriately and adequately" explain
various things, and only then can they go to an abortion clinic!

Alternatively, clinics will have to employ a second doctor who counsels
the women when they first arrive, but does not perform or assist in the
performance of the operation. Either way, it will involve more costs and
time for WA women who want an abortion.

Further, dependence on GP's to "properly, appropriately and adequately"
explain various things to women seeking terminations may be a huge problem.
Many GP's are unfamiliar with the risks and complications of the operation,
to say nothing of those who are anti-abortion. Abortion providers and allied
health professionals in WA may need to establish their own training program
for GP's so that information about abortion is conveyed in a non-frightening
and genuinely informative manner.

This sub-section will also place further pressures on the Medicare system.
WA women will now be required to claim both the item number for termination
of pregnancy and for their visit to a GP. These additional Medicare costs
render abortion's current status as a refundable item vulnerable to attack.

If the WA parliament's judgement that abortion-providing doctors cannot
be trusted to also provide their patients with the information about the
operation before it is done was applied to all surgical procedures, the
strain on Medicare, and doctors, would be enormous. There are no grounds
to single out the abortion operation in the health act.

The most vicious amendments to the health act are left to the end.

Sub-section (7) restricts "justifiable" abortions to the 20th week
of pregnancy and requires two medical practitioners, out of a panel of
six, to approve a termination — if the woman or the foetus "has a severe
medical condition".

Late-term abortions, if approved on the criteria above, can only be
done "in a facility approved by the Minister for the purposes of this
section". Ministerial approval of late-term abortion facilities (unlike
every other day surgery service) will be a minefield, especially if the
minister is anti-abortion.

WA politicians seem to have it in for young women in particular. Sub-section
(8) states: "For the purposes of this section —

(a) ... a woman who is a dependant minor shall not be regarded as having
given informed consent unless a custodial parent of the woman has been
informed that the performance of an abortion is being considered and has
been given the opportunity to participate in a counselling process and
in consultations between the woman and her medical practitioner as to whether
the abortion is to be performed;

(b) a woman is a dependant minor if she has not reached the age of 16
years and is being supported by a custodial parent or parent; and

(c) a reference to a parent includes a reference to a legal guardian.

The next provision permits a dependent minor to “apply to the Children's
Court for an order that ... a custodial parent ... should not be given
the information and opportunity” referred to above. However, how many 15-year-old
homeless women, for example, are going to rush to the court so they don't
have to tell their parents they want an abortion?

Not liberalisation

The Davenport Bill in its new form has “clarified” the WA law on abortion,
but it has also created prohibitions on access which were not there before.
It has also created even more opportunities for anti-abortionists to attack
WA women's access.

Already, the anti-abortion groups in WA will have their legal people
poring over the new bill seeking clauses to exploit in their aim of further
restricting abortion access. Anti-abortion independent MP Phillip Pendal
is quoted in the May 22 Sydney Morning Herald that, “over time,
the legislation will become a framework to implement greater restrictions”.

This bill is being hailed by some as “the most liberal laws on abortion
in Australia”. But imposing prohibitions on access for late-term abortion
and under-16s, and the creation of a two-doctor hurdle cannot be described
as “liberalisation”.

Abortion rights activists in every other state and territory will need
to be vigilant to ensure that versions of the Davenport Bill are not introduced.

For more information, or to contribute to the discussion, contact WAAC
at PO Box A2233, Sydney South NSW 2000; phone/fax (02) 9569 3819.