On 21 September 2023, Western Australia became the final Australian jurisdiction to fully decriminalise abortion. An abortion can now be obtained on request in WA up to 23 weeks gestation and after 23 weeks gestation where two medical practitioners agree that it is appropriate. All criminal offences relating to abortion have now been abolished, except the performance of an abortion by an unqualified person.
Abortion before 23 weeks
Under 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 (section 202MC) or if it is performed by a prescribing practitioner by prescribing, supplying or administering an abortion drug to the person on a person who is not more than 23 weeks pregnant (section 202MD).
Abortion after 23 weeks
An abortion is also legal under the Health Act 1911 if it is performed by a medical practitioner on a person who is more than 23 weeks pregnant if:
- the patient’s primary practitioner believes an abortion is appropriate in the circumstances; and
- the patient’s primary practitioner has consulted with at least one other medical practitioner who also believes the procedure is appropriate in the circumstances (section 202ME).
The following factors should be considered when determining whether a termination is appropriate in the circumstances:
- the relevant medical circumstances
- the person’s current and future social and psychological
- professional standards and guidelines
In the past, a minor could not validly consent to an abortion without the involvement of one or both of their parents or guardians, except with a court order.
As the law now stands, a minor can consent to having an abortion without the involvement of a parent unless:
- Their medical practitioner considers that they do not have the capacity to consent to the procedure on their own behalf because they have not attained a sufficient level of understanding and intelligence to fully understand what is proposed; or
- Their medical practitioner considers that it is not possible to ascertain whether the young person has the capacity to content on their own behalf; and
- the patient agrees to a parent being involved in the decision.
Abortion By Unqualified Person
Under section 202MN of the Criminal Code Act Compilation Act, it is an offence, punishable by seven years imprisonment, for an unqualified person to perform an abortion.
There are no longer any other abortion-related offences in WA.
Safe access zones
The Public Health Act 2016 has now been amended to include ‘safe access zone’ provisions. These are provisions 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, it is an offence to engage in prohibited behaviour (such as intimidation, harassment or making threats) within a safe access zone.
Under section 202Q of the Public Health Act 2016, it is an offence to publish or distribute a recording of another person accessing, attempting to access, or leaving premises where abortions are performed.
Both of these offences have a maximum penalty of a fine of $12,000 or imprisonment for one year.
The changes to the law in Western Australia have been met with widespread support, but there have also been some criticisms voiced.
Human rights groups such as the Human Rights Law Centre welcomed the amendments, saying that the new laws will help to safeguard human rights in Western Australia by treating abortion as a medical procedure and removing barriers to accessing abortion.
Critics of the changes have argued that they represent a trend towards devaluing human life and that moving the boundary for ‘on request’ abortion from 20 weeks gestation to 23 weeks gestation was without justification.
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