Abortion Offences (WA)
Laws regulating abortion in Australia vary between different jurisdictions. In Western Australia, abortion was decriminalised in 1998. An abortion can now be obtained on request up to 20 weeks gestation and after 20 weeks gestation where two medical practitioners are in agreement. Criminal offences exist in relation to abortions that are carried out contrary to the law.
When is abortion legal?
Under Section 334 of the Health Act 1911, an abortion is legal if:
- The woman has given informed consent; or
- If the abortion is not performed, the woman will suffer serious personal, family or social consequences; or
- Serious danger to the woman’s physical or mental health will result if the abortion is not performed;
- The pregnancy poses serious danger to the woman’s physical or mental health.
If 20 weeks or more of a pregnancy have passed when the abortion occurs, it is only justified if:
- Two medical practitioners who are members of a panel appointed by the health minister have agreed that either the woman, or the unborn child, have a severe medical condition that justifies the procedure; and
- The procedure is performed in an approved facility
What is informed consent?
Informed consent means consent freely given after:
- The woman has been given adequate counselling by a medical practitioner about the medical risks of termination and the risks of carrying a pregnancy to term;
- The woman has been offered referrals to counselling about the termination and carrying the pregnancy to term by a medical practitioner;
- A medical practitioner has informed the woman that counselling will be available if she requires it after a termination or after carrying the pregnancy to term.
Consent by a minor
If a woman is under 16 and still being supported by her parents, she cannot give informed consent to abortion without a parent being notified and given the opportunity to participate in the counselling process and in consultations between the woman and her doctor about whether an abortion is to be performed.
A dependant minor may seek an order from the Children’s Court that her custodial parent/s not be informed or given the opportunity to participate in the counselling process.
Abortion by unqualified person
Section 199 of the Criminal Code Act Compilation Act contains two offences relating to abortions.
It is an offence to perform an abortion unlawfully. This is punishable by a fine of $50,000
It is an offence punishable by imprisonment for up to five years for a person who is not a medical practitioner to carry out an abortion (or attempt to do so).
Western Australia is in the process of legislating for ‘safe access zones’ around abortion clinics. In other jurisdictions, laws prohibit people from protesting against abortion within a designated area around a clinic where abortion services are offered. These laws allow staff and patients to enter and exit clinics without being harassed, approached or vilified by opponents of abortion.
The High Court of Australia has found the ‘safe access zone’ laws are valid after challenges to the constitutionality of these laws in Victoria and Tasmania were mounted. The High Court found that the laws are constitutionally sound and not a substantial interference with the implied right to freedom of political communication. The court found that ‘women seeking an abortion…are entitled to do so safely, privately and with dignity , without haranguing or molestation.’
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