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Changes to Western Australia's
Abortion Law in 1998
By Dr Kylie Stephen
In February 1998 it was announced that two Perth doctors
were to be prosecuted under the Western Australian laws
that make abortion a crime. These were the first charges
laid against medical practitioners under those laws in Western
Australia in over 30 years. The political events that followed
this decision ultimately culminated in the passage by the
Western Australian parliament of legislation introducing
what is claimed to be the most liberal abortion law in Australia.
The legislation originated as a Private Member's Bill introduced
into the upper house of the Western Australian parliament
by Cheryl Davenport MLC (ALP). The legislation passed, with
amendments on 21st May 1998.
Abortion in Western Australia (WA): An Overview
Statutory provisions in every State and Territory (except
now Western Australia) make it a crime 'unlawfully' to administer
any poison or noxious thing, or use any instrument or other
means, with intent to procure miscarriage. The wording of
these statutory provisions is based directly on legislation
enacted in England in the nineteenth century. The crime
of 'unlawful abortion' may be committed by the pregnant
woman herself (except in the Northern Territory), by the
person performing the abortion, or by anyone else who assists.
The legal test for when an abortion is not unlawful, however,
is different in each State and Territory of Australia. Abortion
across Australia is governed by three sets of laws: First,
the laws that create the crime of 'unlawful abortion'. Secondly,
the laws that create the crime of 'child destruction.' Thirdly,
the law of homicide.
Sections 199-201 of the WA Criminal Code prohibited anything
done 'unlawfully' with intent to procure a miscarriage.
Section 259 allowed anyone to perform a surgical operation
for the 'benefit' of the patient, or 'upon an unborn child
for the preservation of the mother's life,' if the performance
of the operation was 'reasonable, having regard to the patient's
state at the time and to all the circumstances of the case,'
and provided the procedure was carried out in good faith
and with reasonable care and skill.
There were no judicial rulings explaining the meaning of
'unlawful' abortion in Western Australia and interpreting
sections 199-201 and section 259 of the Western Australian
Criminal Code in this context. It was, however, widely assumed
that the meaning of 'unlawful' abortion advanced by courts
in Queensland, adopting the legal test that applies in Victoria,
represented the legal position in Western Australia. This
legal test was set out in the landmark 1969 Menhennitt ruling
in Victoria which confirmed that abortion is legal in cases
where the woman's physical and/or mental health is at risk,
or continuation of the pregnancy will cause economic or
social suffering to the woman.
The separate crime of 'child destruction' only applies to
abortions performed late in pregnancy. It is not clear,
however, whether this crime only applies to abortions performed
very late in pregnancy, when a woman is about to go into
labour, or whether it may protect any 'viable' foetus. Section
290 of the Western Australian Criminal Code provides that
it is a crime, 'when a woman is about to be delivered of
a child,' to prevent that child from being born alive. The
penalty for violating section 290 is life imprisonment.
Comments by Murray J in the case Martin v. The Queen reflected
the opinion that section 290 potentially applies from the
twenty-fourth week of pregnancy.
The law of homicide can only apply in situations where a
child is born alive. Section 271 of the Western Australian
Criminal Code, provides that a person is deemed to have
killed a child (for the purposes of the relevant homicide
offences) when that child dies in consequence of that person's
behaviour 'before or during its birth.'
A Crime of Unlawful Abortion?
On the 10th February 1998 a decision was taken by the Belmont
police and the Director of Public Prosecutions in WA to
lay charges against two Perth doctors, Drs Victor Chan (abortionist)
and Ho Peng Lee (anaesthetist) of Nanyara Medical Group,
under section 199 of the WA Criminal Code in respect of
an allegedly unlawful abortion performed in November 1996.
The story behind the arrest of the doctor and the anaesthetist
over the performance of an abortion was complicated to say
the least. The actual abortion operation happened in November
1996. There weren't any problems with the operation, the
woman concerned simply requested that she be able to take
home the foetal matter/products so that she could bury them.
The woman took home the foetal products and put them in
the fridge. Her son came home, looked in the fridge and
asked what it was. Mum said words to the effect of "it's
a dead baby and I'm going to bury it".
Unfortunately and unbeknownst to the woman, her son went
to school and told this in 'news' time to his class. The
teacher, concerned by this tale, reported the family to
the WA police. The WA police eventually questioned the woman
during the early to middle part of 1997; they then interviewed
the counsellor and the doctors at the clinic where the abortion
was performed. At that time the police were considering
charging the woman. By December 1997, however, the police
were considering charging the counsellor, because it was
she who handed over the foetal products. The doctors, in
fact, knew nothing about that side of events. Finally, the
police decided to charge the doctors in early May - 18 months
after the actual operation happened.
In charging the two doctors, the WA Director of Public Prosecutions
(DPP) at the time of the incident, John McKechnie QC, took
a narrow interpretation of the law stating that abortion
would only be permitted to save a woman from imminent risk
of death. Thus, justifying the WA prosecutions, the DPP
offered the opinion that abortion is only legal in WA in
life threatening situations.
Attorney-General Peter Foss said he would use his role as
first law officer to maintain the status quo of the past
20 years, challenged by the charging of the two Perth doctors
for attempting to procure an abortion. He intervened after
hospitals and clinics cancelled abortion lists, the Australian
Nursing Federation (ANF) advised nurses to refuse involvement
in any abortions and a 24-year-old woman was treated in
a Perth casualty ward after apparently attempting to terminate
her own pregnancy. Doctors in Western Australia were subsequently
given a government indemnity against prosecution for performing
most abortions. Australian Medical Association state president
Dr Scott Blackwell welcomed the assurance, but stressed
that doctors still felt changes were needed in the law,
the strict interpretation of which meant doctors faced a
maximum of 14 years' jail for performing an abortion in
a non-life threatening situation.
The events surrounding the Doctors, however, were to be
superseded by the events in the WA Parliament to rectify
the uncertainty. It was at this point that two bills were
introduced into the Western Australian Parliament when it
resumed on March 10th 1998, one of which was said to contain
provision for Australia's most progressive abortion laws.
The Progression of the Davenport Legislation Through
Parliament
In the Legislative Council (upper house), the Davenport
Bill, which started as an abortion law repeal bill, was
passed 22 to 11 (March 19th 1998). It proposed that:
- most references to abortion
be removed from the criminal code by repealing sections
199, 200, 201. Section 259 would remain;
- regulations and conditions
on the termination of pregnancy be placed into the WA
Health Act:
- Unqualified medical practitioners
who perform terminations are liable to a $50000 fine or
2 years jail;
- Medical Practitioners
are able to justifiably perform an abortion:
- if the woman gives
her informed consent after counselling
- if she will suffer
serious personal, family, social or economic consequences
if the abortion is not performed and she gives informed
consent
- if her physical or
mental health is in serious danger if abortion is
not obtained and she gives informed consent
- if the continuation
of the pregnancy is causing serious danger to the
mental or physical health of the woman and she gives
informed consent.
- an abortion performed
after 20th week of gestation must have the approval of
two approved medical practitioners who agree that either
the mother or the foetus has a severe medical condition.
In the Legislative Assembly (lower house) the Foss Bill, which
started as an abortion law reform bill, was passed 31 to 19
(there were six abstentions, including the Premier and the
Health Minister who were not in the chamber during the vote).
Under the Foss Bill, abortion would remain within the criminal
code. Under what became known as the Foss Four Point Plan,
abortion would be legal if:
- Pregnancy is causing
serious danger to the woman's physical or mental health;
- serious danger to the
woman's physical or mental health will result if miscarriage
is not procured;
- the woman will suffer
serious personal, family or social consequences if the
miscarriage is not procured;
- the women has given her
informed consent: Informed consent existing once a doctor
who is independent of the doctor performing the abortion
has explained the medical risks of abortion and offered
to refer her for counselling.
Further, the Foss bill set out that the parents of a girl
under 16 seeking an abortion must be informed prior to the
procedure. An abortion performed after the 20th week of gestation
must have the approval of two government-approved medical
practitioners who agree that either the mother or the foetus
has a severe medical condition. Finally, doctors and nurses
can refuse to take part in performing abortions.
Activists of the Association for the Legal Right to Abortion
(WA) acknowledged that the attachment of abortion provision
to the WA Health Act was not ideal but the ALRA argued that
the Davenport bill represented a vastly better outcome for
women than the Foss bill. A deadlock ensued, however, between
the two sets of legislative proposals. Subsequently, it was
thought that the best way to get the Davenport legislation
through Parliament (lower house) and to get abortion provisions
repealed from the Criminal Code, was to adopt regulations
which would contain only part (d) of the Foss four point plan.
Part (d) specifies that procuring the miscarriage of a woman
is justified if, and only if the woman has given 'informed
consent', i.e. consent given by the woman after she has received
counselling about the consequences of an induced miscarriage.
On Thursday 2nd of April the two separate bills dealing with
abortion were passed in their respective houses of the WA
Parliament. On the 9th April 1998 the Foss Bill was ruled
out of order in the Upper House by the President on the basis
that it was too similar in content to the Davenport Bill.
This left the Davenport (Repeal) Bill as the only bill being
debated. The Davenport Bill, after endless proposed amendments
and debate, passed the Lower House on Thursday 5th May (32-
22). In the meantime, the doctors went to court on Thursday
7th May as it was only at this point the charges against them
were finally laid. The doctors elected to go to a preliminary
hearing, which was set down for November 25-27th.
The amended Repeal Bill – no longer a repeal bill but a reform
bill – returned to the Upper House on 19th May. The Acts Amendment
(Abortion) Act 1998 (WA) was passed by the Western Australian
Parliament on 21st May 1998 (in the Legislative Council 24-9).
It repealed old sections 199-201 of the Western Australian
Criminal Code and replaced them with a new section 199. That
new section provides that it is unlawful to perform an abortion
unless the abortion is performed by a medical practitioner
'in good faith and with reasonable care and skill', and the
performance of the abortion is justified under new section
334 of the Health Act 1911 (WA).
An abortion will be justified under section 334 of the Health
Act 1911 (WA) if one of four grounds have been satisfied.
The first ground essentially allows abortion on request. It
allows abortion if the pregnant woman has given 'informed
consent.' This is defined to mean 'consent freely given by
the woman' after a counselling requirement has been satisfied.
That counselling requirement demands that an independent medical
practitioner, neither the doctor who performs the abortion,
nor any doctor who assists in performing the abortion, has
done three things:
- 'properly, appropriately
and adequately' provided the pregnant woman with counselling
about the 'medical risk' of abortion and of carrying a
pregnancy to term;
- offered to refer the
pregnant woman for 'appropriate and adequate counselling'
about 'matters relating to' abortion and to carrying a
pregnancy to term; and
- informed the pregnant
woman that 'appropriate and adequate counselling' will
be available to her should she wish it after the abortion
is performed or after she carries the pregnancy to term
If the pregnant woman is aged under 16 and is being supported
by a parent or guardian, she will not be regarded as having
given informed consent unless that person has been told about
the proposed abortion, and that person 'has been given the
opportunity to participate in counselling process consultations
between the woman and her medical practitioner as to whether
the abortion is to be performed.'
The other three grounds under which an abortion is permitted
are more restrictive than the first, but do not impose any
legal requirement that the pregnant woman be offered counselling.
The second ground is that the pregnant woman 'will suffer
serious personal, family or social consequences' if the abortion
is not performed. The third ground is that 'serious danger
to the physical or mental health' of the pregnant woman will
result if the abortion is not performed. The fourth ground
is that the pregnant woman's pregnancy 'is causing serious
danger to her mental health.'
Any one of these four grounds will only legally justify an
abortion performed up to 20 weeks of pregnancy. After that
time, an abortion cannot be performed lawfully unless two
doctors agree that 'the mother or the unborn child' has a
'severe medical condition [that] justifies the procedure.'
These two doctors must be members of a panel of at least six
doctors appointed for this purpose by the Minister. Additionally,
a late term abortion must be performed in a facility approved
for these purposes by the Minister.
The new law explicitly provides that no 'person, hospital,
health institution, other institution or service' is under
a duty to participate in the performance of any abortion.
Importantly, the new legislation also changes the legal consequences
of performing an unlawful abortion. The most onerous penalty
is imposed on abortionists who are not medical practitioners.
They will be liable to imprisonment for five years, unless
their behaviour comes within the terms of new section 259
of the Criminal Code. That section replaces the defence in
the old section 259, discussed above. It is identical to that
old section except that it now refers to 'surgical or medical
treatment' rather than just 'surgical treatment'.
Doctors who perform abortions otherwise than in accordance
with the new Western Australian law will no longer be liable
to imprisonment: a fine of $50 000 is imposed. Women seeking
or obtaining abortions are no longer subject to any legal
sanction in Western Australia.
The Western Australian legislative reforms additionally require
the Western Australian Health Minister to conduct a review
of 'the operation and effectiveness' of these new abortion
provisions three years after the new legislation comes into
effect.
Neither section 290 of the Western Australian Criminal Code,
on the crime of 'child destruction' nor section 271 on the
law of homicide were amended in the recent legislative changes
to the abortion laws in that State.
When Repeal Is Not Really Repeal
In the immediate aftermath of the parliamentary debates, the
new legislation was hailed in the media as the most liberal
abortion law in Australia. Doctors announced that while the
legislation isn't exactly what they wanted, they could live
with it. It was seen as ultimately better for WA women in
that it removed abortion from the criminal statutes and, whilst
regulations are still there in a Health Act, they do not carry
with them the penalties/threats to women and doctors and other
health workers which it being in the criminal statutes does.
The changes, however, did not go without some criticism. The
negative side to having mention of abortion in the Health
Act regulations was seen to be that it still singled out this
procedure which only women need access to, and did not treat
it like any other medical procedure. In essence then, the
Bill was not an abortion-on-demand outcome nor was it the
"most liberal laws" in Australia as claimed. Rather it was
a massive set back for the view that abortion is a woman's
right to choose.
While it should be acknowledged that amendments to the bill
were so substantive that the historic repeal bill originally
moved by Cheryl Davenport and carried with an overwhelming
majority (22 to 11) in the early stages of Parliamentary debate
in mid-March 1998, is now unrecognisable, it has been suggested,
that the Davenport Bill was never really a true repeal bill.
While it proposed a partial repeal of the provisions in the
WA Criminal Code which relate to abortion, that is, Sections
199, 200 and 201, it also proposed from the very beginning
to leave Section 259 (which also partly relates to abortion)
in the Criminal Code.
Five specific points can be made in relation to the new abortion
legislation in Western Australia.
First, the new Section 199 of WA Criminal Code could be seen
in effect to bolster the power of the medical profession over
women's bodies and lives. The proposed new Section 199 of
the WA Criminal Code closes off the possibility of nurse practitioners
such as midwives learning how to perform abortions. Further,
sub-section 6 of the new Section 334 to the WA Health Act
introduces a two-doctor hurdle for all WA women who are trying
to access abortion services. Women will have to go to presumably
a local GP or a family planning doctor who is required to
"properly, appropriately and adequately" explain the procedure
and advise of the option of counselling before they can go
to a clinic. Or clinics will have to employ a second/third
doctor who sees the women when they first arrive at the clinic
and who does not perform the abortion and does not assist
in the abortion. The 'two doctor hurdle' reinforces the medical
profession's power over women's bodies and lives and the power
of the state over women's bodies and lives by determining
the material conditions under which women will have access
to abortion services It reinforces the medical monopoly on
abortion services.
Secondly, in complete contradiction of the above analysis
of the new Section 199, however, the new Section 259 offers
a possible defence for anyone who performs "surgical or medical
treatment...to an unborn child for the preservation of the
mother's life'. Because the proposed new Section 259 talks
of "a person" not "a medical practitioner" it possibly offers
a defence to anyone who "administers...surgical or medical
treatment to an unborn child for the preservation of the mother's
life"/performs an abortion, provided "administering" also
means "performing".
Thirdly, key differences between the old Section 259 and the
new Section 259 is the use of the word "administering" rather
than "performing"; the use of the words "surgical or medical
treatment" rather than "a surgical operation"; and the use
of the words "to an unborn child" rather than "upon an unborn
child". This has led to concern that further manipulation
by anti-abortion activists could take place in relation to
the words "surgical or medical treatment.... to an unborn
child". They could suggest that performing surgery on a foetus
to save the foetus at the expense of the woman is just as
possibly meant by the legislation as the performance of abortion.
Fourthly, it is noteworthy that the new legislation requires
an abortion to be "justified", a word which so far has not
appeared in any State/Territory Crimes Act or Criminal Code
in relation to abortion. The Davenport Bill's consequential
amendments to the WA Health Act 1911 to outline the circumstances
in which 'informed consent' takes place pose key problems
for women. The key provision for 'informed consent', subsection
5 (a) defines "informed consent" as being where " 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". This may
also allow manipulation of the legal language by anti-abortionists
over the meaning of the words "properly, appropriately and
adequately"
The fifth and final point of the new legislation relates to
sub-section 7 of new Section 334 of the WA Health Act 1911
which restricts "justifiable" abortions to the 20th week of
pregnancy and, after that, two medical practitioners have
to approve a termination and it can only be if the woman or
the foetus "has a severe medical condition". Of equal concern
is the fact that performance of a late term abortion, if approved
as 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 (rather than simply complying
with any other day surgery legislation for example) should
prove to be difficult, especially when the Minister is known
to be opposed to abortion.
Perhaps an unrealistic expectation has also been created whereby
for under 16 year olds a "custodial parent" has to be informed
and, the custodial parent has to be "given the opportunity
to participate in a counselling process and in consultations
between the woman and her medical practitioner". Young women
under the age of 16 may find it difficult to discuss the abortion
with their parents. While the new legislation permits a dependant
minor to "apply to the Children's Court for an order that...a
custodial parent...should not be given the information" that
the minor is seeking a termination of pregnancy, this is an
even unlikelier scenario than the first, and therefore an
obstacle to abortion provision for young women
The Pro Choice Campaign: Offence or Defence?
So how did this attempt to 'repeal' abortion legislation in
WA turn into the 'reform' of that legislation only? There
is many a lesson to be learned from the conduct of, and in
the strategies and tactics adopted, during the debate in Western
Australia.
The pro-choice movement saw it as an 'historic' win for women
of Australia, and the pro-choice movement of Australia, as
it was the first time they had gone on the offensive in any
state and been successful! Every other time they had wins
these wins were in defeating an attack or in reacting to an
attack. Later, however, reservations were expressed about
the idea that the pro-choice movement should actively campaign
for the repeal of abortion laws on the basis that while repeal
is desirable, entering into an 'offensive' attack on the legislation
can be risky. You could always end up with something far worse.
A prominent abortion activist in WA, Margaret Kirkby, argued
that activists had campaigned for several years by stating
that 'abortion is illegal' in Western Australia and that the
only legal defence was for "the preservation of the mother's
life. She does not agree with that assessment of the law on
abortion in WA as it stood before the Davenport Bill.
Kirkby suggested that the campaign for 'repeal' failed because
the pro-choice movement accepted the terms of argument/debate
put forward by the DPP that:
- the law was untested
and uncertain;
- that abortion was only
legal when the woman's life was in danger;
- majority of WA abortions
would in fact be illegal – if tested
This did not allow the pro-choice movement to raise the question
of why abortion should be singled out in a specific piece
of legislation anyway? Further, she argued that whilst the
practice of the law may differ from what the 'letter of the
law' in the provisions in the Health Act/Criminal Code, the
nature of the debate and the campaign in WA places a great
deal of pressure on activists and providers to ensure no opportunities
are opened up for further attacks and that those new laws
are followed to the "t".
Natasha Cica argues instead that the legal situation in WA
pre-Davenport was uncertain. The law in WA had never actually
been tested. There certainly was a long period where there
was some kind of formal or informal policy of not prosecuting
providers or women under the old WA abortion laws. That 'policy'
was not, however, of any legal force. It could have changed
at any moment - and it did, for whatever reason, when the
DPP announced he would go ahead and charge the two doctors
at the beginning of this year. Indeed the Gender Bias Taskforce
Report, had stated that the position in WA was at best ambiguous
(paragraph 91 page 196 of the report: "the current situation
creates uncertainty and the real fear that at any time abortion
services currently available could be curtailed"). In light
of this, the position by the ALRA in not taking Crown Law
or the DPP to task on their legal interpretation was a well
founded position. The DPP exploited the fact that there had
been no judicial clarification of the law in that State by
asserting that, in his view, abortion was only lawful to save
the life of the pregnant woman. The DPP's opinion was in turn
picked up uncritically by the media and presented as 'the
law.' This acted to make anti-choice arguments look more established
and legitimate. This illustrates how confusion about what
the law actually says can be used to undermine pro-choice
arguments in the debate for legislative change. On this basis
the WA repeal debate turned into the WA reform bill as the
result of activities by anti-choice activists.
Conclusion
The Davenport Bill in its new form has, apparently, not "clarified"
the law on abortion in WA at all, but perhaps it has created
even more opportunities than there were before for anti-abortionists
to attack WA women's access to abortion. It is no wonder that
the anti-abortion politician from WA, Phillip Pendal (an Independent)
is quoted in the Sydney Morning Herald on 22/5/98 as saying,
"over time, the legislation would become a framework to implement
greater restrictions'.
The case against Drs Victor Chan and Ho Peng Lee of Nanyara
Medical Group was heard at on Thursday 30th July 1998 at the
Perth Central Law Courts. The charges against doctors Chan
and Lee for the procurement of an abortion in November 1996
were dropped by the WA Director of Public Prosecutions several
months after the new laws had been adopted. This concluded
the saga that began with the doctors being charged in May
1998, causing a crisis in abortion provision and eventually
leading to the new abortion legislation in WA. |
