Explainer: Abortion Legislation Reform Bill 2023
Abortion laws in WA have remained unchanged for 25 years. They are out of step with community values, modern medical practice and abortion laws across Australia.
The Abortion Legislation Reform Bill 2023 (the Bill) proposes a new framework under the Public Health Act 2016 which, if passed, will situate abortion as healthcare in WA law and help improve access to timely and compassionate abortion care.
1. Abortion removed from the Criminal Code
The Bill removes abortion[i] from the Criminal Code, thereby completing the decriminalisation of abortion by medical practitioners and bringing WA into line with the rest of Australia. It also authorises other health practitioners to perform an abortion in specified circumstances (see below).
As other states and territories have done, the Bill creates an offence for an unqualified person to perform an abortion. A pregnant person themselves cannot be criminalised.
2. Patient autonomy respected up to 23 weeks gestation
The right of every person to make decisions about their bodies will be better respected by the removal of the requirement for patients to see two doctors and have mandatory counselling. These parts of the current law undermine patient autonomy and cause delays in accessing care, particularly for people with limited money, who live regionally and remotely, or who otherwise face systemic discrimination in the healthcare system.
The Bill would allow patients to make the decision about whether to have an abortion in consultation with their practitioner up to 23 weeks gestation. Counselling would be optional. This gestation limit is consistent with the approach in Victoria and Northern Territory (24 weeks).
3. Rights-respecting approach to abortion care after 23 weeks
The Bill would allow an abortion to be performed after 23 weeks when two doctors reasonably believe that performing an abortion is appropriate in all the circumstances. They need to take into account the patient’s relevant medical, physical, psychological and social circumstances, as well as professional standards and guidelines.
Currently people seeking abortion care after 20 weeks gestation in WA must justify their need against narrow criteria and obtain approval from their original doctor and joint authorisation from another two doctors from a six-person medical panel. This outdated law is forcing women to fly interstate to access care that they should be able to access in their home state.
Less than 1% of all abortions occur after 20 weeks gestation in WA.[ii] They are typically required in complex and distressing circumstances, such as a fatal foetal condition diagnosed at the 20-22 week scan. The drafting of this part of the Bill recognises that it is critical that patients and doctors in these situations are not rushed into hasty decisions by unduly restrictive laws. This approach broadly aligns with Victoria, Queensland and the Northern Territory.
4. Supporting abortion care by other health practitioners
The Bill would allow authorised health practitioners to prescribe,[iii] supply or administer abortion medication to patients in specified circumstances. Like doctors, they would need to comply with the existing restrictions attached to abortion medication.
These provisions will allow the WA Government to carefully broaden the range of skilled professionals who can provide abortion care beyond doctors, such as to nurse practitioners. This is an important step in improving access to abortion across WA. It aligns with the Therapeutic Goods Administration’s recent decision to allow the MS-2 Step abortion drugs to be prescribed, up to 63 days gestation, by any healthcare practitioner with appropriate qualifications and training.[iv]
There is already good evidence that nurse-led care is a safe way of improving access to early medication abortions.[v]
5. Safeguarding a patient’s right to health where doctors object
The Bill recognises that a health practitioner may conscientiously object to performing, assisting or advising a patient about having an abortion.
However, unlike the current law, the Bill would require all practitioners who refuse to provide or advise on an abortion, whether because of conscientious objection or otherwise, to respect their patient’s right to healthcare by:
· immediately disclosing any conscientious objection to their patient;
· transferring the patient’s care to a health practitioner or facility that they reasonably believe can provide abortion services or providing information approved by the Chief Health Officer to enable access to treatment elsewhere; and
· providing abortion care in an emergency.
6. Respecting a young person’s right to bodily autonomy
The Bill would repeal the current laws that mandate parental involvement when a person under 16 years seeks an abortion.
The new law would recognise the decision-making rights of young people who are assessed to have the competence to make the decision for themselves.
Where a health practitioner determines that a child is not competent or cannot ascertain competence, the new law would allow a practitioner to defer to the decision of the parent/guardian, but only where the young person agrees to this. Where a young person does not want parental involvement, or the parent/guardian is not acting in their best interests, the practitioner can apply to the Supreme Court or Family Court of WA.
7. Substitute decision-making for adults without capacity to consent – need for separate review
The current laws appear to prevent access to abortion for people without capacity to give consent, except in an emergency.
The Bill introduces a substitute decision-making scheme into WA’s Guardianship and Administration Act, in which only the State Administrative Tribunal (SAT) can make treatment decisions on behalf of a person who is unable to make “reasonable judgements” about abortion care, taking into account their wishes.
Substitute decision-making approaches are inconsistent with the human rights of people with disability.[vi] Organisations like Women With Disabilities Australia have called for supported decision-making approaches and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability will address this issue in its report in September 2023.
The lack of a supported decision-making model is an issue across WA’s Guardianship and Administration Act, including in relation to sterilisation decisions. These serious human rights concerns need to be holistically addressed as part of a separate review by the WA Government. This should be considered a priority following the Royal Commission’s report, and be done in close collaboration with people with disability and their representative organisations.
8. Data about abortions
The current duty on midwives and doctors to report every abortion to the Chief Health Officer (CHO) will be replaced by a model that empowers the CHO to request statistical or summary information about abortions. Identifying details of the patient, health practitioner and circumstances of each abortion performed will be excluded and will be exempt from disclosure under the Freedom of Information Act.
The information collected should enable the planning and evaluation of healthcare, whilst protecting the privacy of patients and health practitioners.
[i] The Bill introduces a new section 202MB in the Public Health Act defining the performance of an abortion. This is intended to be a clearer definition than that in the Health (Miscellaneous Provisions) Act 1911, and includes oral medication, surgical procedure or a combination of both.
[ii] Department of Health, Abortion Legislation – Proposal for reform in Western Australia (Discussion Paper, November 2022).
[iii] Only health practitioners who are authorised under the Medicines and Poisons Act 2014 to prescribe an abortion drug can be a prescribing practitioner.
[iv] Therapeutic Goods Administration, Amendments to restrictions for prescribing of MS-2 Step (Mifepristone and Misoprostol) (11 July 2023) at https://www.tga.gov.au/news/media-releases/.
[v] Marie Stopes Australia, Nurse-led medical termination of pregnancy in Australia: legislative scan (2022), https://resources.msiaustralia.org.au/Nurse-led-MToP-in-Australia-legislative-scan.pdf.
[vi] See Convention on the Rights of Persons with Disabilities, art 12; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Diversity, dignity, equity and best practice: a framework for supported decision-making (Research Report; The Living with Disability Research Centre, La Trobe University); Women With Disabilities Australia, WWDA submission on sexual and reproductive rights of women and girls with disability (December 2022).