New abortion laws for WA
By Sarah Stephen
PERTH — Western Australia now has the most liberal abortion laws in Australia. In the early hours of May 21, the Legislative Council voted 24 to 9 to pass the amended Davenport Bill.
Substantial sections of the law remain within the WA Criminal Code, and while the new laws remove the threat of prosecution for women who seek an abortion, doctors remain liable for hefty fines (jail terms are no longer attached).
More stringent regulations in the Health Act require that the parents of a woman under 16 be informed of her decision to have an abortion, although the daughter can apply to the Children's Court to prevent this, if there is "sufficient reason".
The new law sets a cut-off point of the 20th week of pregnancy for abortions on the basis of "informed consent" to be legal. After the 20th week, the woman must secure the agreement of two doctors, from a panel appointed by the health minister, that the health of the mother or the potential child would be endangered by continuing the pregnancy.
The doctor who provides counselling to the patient must be independent of the doctor who performs the abortion. The argument made by anti-choice MPs for this amendment was that it would prevent abortion "entrepreneurs" from providing counselling which "persuaded" women to have abortions. In fact, the amendment inserts a significant grey area into the legislation because "independent" is undefined.
During the nine-hour debate which preceded the passing of the bill, anti-choice MPs tried to introduce further amendments, including sensationalist red herrings such as an amendment to require doctors to administer anaesthetic "adequate to ensure beyond reasonable doubt that no unborn child is subject to any pain" as the result of an abortion.
Another proposal was for a 10-year jail term for doctors who perform "illegal" abortions. Labor MLC Ed Dermer moved to introduce a 48-hour "cooling off" period between counselling and the abortion procedure.
The right wing also attempted to introduce the "Trojan horse amendment" (introduced three times, unsuccessfully), which would have made doctors liable to prosecution and imprisonment if they carried out an abortion for a woman who wanted to choose the sex of her child. None of these amendments succeeded.
Under the new legislation, doctors are able to choose not to participate in performing the operation. Anti-choice ALP member Tom Stephens moved an unsuccessful motion to broaden this to allow doctors to refuse to be involved in any way with the procurement of an abortion; that is, to provide information or referrals to other doctors, clinics or hospitals.
Liberal MLC Barbara Scott introduced two motions which, if passed, would have resulted in all women being offered a "real time ultrasound image of her unborn child" and would have required doctors to inform a woman of "the effect of the abortion on her unborn child".
On May 22, the anti-choice campaign against the new laws began. In a West Australian article that day, Archbishop Barry Hickey is quoted as saying the Catholic Church would offer financial support to women who sued their doctor for failing to disclose the effects of abortion.
The legislation specifies that doctors must offer the option of counselling to women seeking abortion. Hickey's threat probably wouldn't stand up in court, but it is an attempt to exploit one of the many ambiguities in the new legislation.
The terms used frequently throughout the bill — informed consent, counselling and independence (of doctors) — are open to widely differing interpretations. This was undoubtedly the intention of the anti-choice MPs who introduced them.
In the face of widespread concern that the bill might lapse if the amendments were opposed, Cheryl Davenport (who moved the original bill to take abortion out of the WA Criminal Code) gave assurances before the upper house debate began that she would accept the amendments passed earlier by the lower house.
The Association for the Legal Right to Abortion, the Australian Medical Association and a range of medical practitioners called for the amended bill to be passed.
Despite the new bill failing to remove abortion from the WA Criminal Code, ALRA declared the outcome a "groundbreaking victory in the association's 30-year campaign for safe, legal abortion. Politicians have shown us that they respect and trust women to make responsible decisions about pregnancy and motherhood."
ALRA has called on the government to provide appropriate support for the new laws. Spokesperson Cait Calcutt said a public education campaign could counter the misleading information about abortion which is being spread by anti-choice campaigners.
While doctors at the King Edward Memorial Hospital have started performing abortions again after a three-week ban, some of the casualties of the anti-choice campaign are becoming clear. AMA state president Scott Blackwell, a vocal supporter of abortion rights, last week lost his position to Rosanna Capolingua-Host, an opponent of abortion.