By Sarah Stephen
PERTH — State MP Cheryl Davenport's private member's bill to remove abortion from the WA Criminal Code, which passed through the upper house last month, was finally passed by the lower house on May 7. It remains the Davenport bill in name only, however.
Numerous amendments put by anti-choice MPs to delay the bill's passage, make it unworkable or cause a conflict between the two houses of parliament so that the bill would lapse — have severely diluted its content. The amendments that were passed include:
- Only section 201, which deals with penalties for women, has been removed from the criminal code. Sections 199, 200 and 259 remain, which means that while women can no longer be prosecuted for having an abortion, doctors performing abortions can still be charged with an offence and sent to jail.
- The doctor involved in counselling the woman must be independent from the person who performs the abortion. This raises (and leaves unanswered) many questions: Is a family doctor who refers a woman to a clinic independent? Is the Family Planning Association independent? Are two doctors who are members of the Australian Medical Association (AMA) independent of each other?
- The parents or guardians of women under 16 years old requiring an abortion must be told before the operation is performed, although a dependant minor may apply to the Children's Court to stop parents or guardians from being told.
- After 20 weeks gestation, two government-approved doctors must agree that the abortion is justified on the grounds of the medical condition of the woman or the foetus. An amendment adding that foetal abnormalities must be "incompatible with life" was defeated on the basis that it was considered inappropriate to stipulate which circumstances were permissible and which weren't.
Because doctors would still be liable to prosecution under the amended legislation, many may be reluctant to perform abortions, causing the already limited access to the service to be reduced further.
The King Edward Memorial Hospital's gynaecology director, Dr Harry Cohen, said it was disappointing that abortion remained in the criminal code, but the amended bill was probably workable.
As a result of the bill's passage in the lower house, WA doctors are considering lifting their ban on abortions, placed on May 1, but only for abortions required for genetic reasons. The ban on other abortions will not be lifted until the amended bill passes the upper house.
The AMA's state president, Scott Blackwell, said the changes to the legislation should be acceptable to the medical profession, but it was up to doctors to decide when to resume abortion services.
The amended bill returns to the upper house for debate on May 19.
On May 6, Davenport reiterated that she would not accept amendments to her bill which re-inserted abortion provisions into the criminal code. That, she said, would change the nature and intention of her bill.
Nevertheless, Davenport is coming under increasing pressure from other MPs to accept the amended bill rather than have to deal with a completely new bill.
If the upper house rejects the lower house amendments, the bill will go to a "conference of managers" composed of representatives from both houses. This group will be mandated by parliament to thrash the issue out until they come to a consensus. If they cannot, the bill will be scrapped and a new one drafted.
Drs Victor Chan and Hoh Peng Lee, whose charging in mid-February brought the issue of WA's abortion laws to national attention, appeared before a magistrate on May 7. The doctors' lawyers successfully requested that the case be heard later in the year. On November 25-27, a judge will decide whether the case should be heard or dismissed.
Trisha Reimers, an activist in the repeal campaign, told Green Left Weekly: "The issue has dropped out of the public eye here. A lot of people are very confused about what is actually happening and that's taken the heat off the politicians to repeal the laws.
"What's been glaringly absent is any sort of public campaign for repeal. There's been plenty of meetings with pro-choice MPs, briefing papers to help guide debate, letter campaigns to 'wavering' MPs. But, unlike the recent maritime union defence campaign, where hundreds and hundreds of people from many different backgrounds joined the picket line on the wharf in Fremantle and forced the government and Patrick Stevedores to back down, the pro-choice movement hasn't mobilised the widespread community support for women's right to choose, so we are in a much weaker position than we need to be."