BY SARAH STEPHEN
On February 4, 1998, doctors Victor Chan and Ho Peng Lee from the Nanyara abortion clinic were charged under Western Australia's criminal code with performing an abortion, and faced up to 14 years' jail.
The shock move by WA police sparked an intense campaign by pro- and anti-choice groups over the following three months, resulting in substantial changes to WA legislation. Penalties were largely removed from the criminal code, except for a maximum $50,000 fine for the performance of an abortion by someone not qualified as a medical practitioner.
In place of the criminalisation of abortion, conditions were set out in the health act which defined the circumstances under which an abortion would be considered legal. These included:
The requirement that a woman receive medical counselling from a doctor unconnected with the practitioner who would perform the abortion.
The requirement that a dependent minor (16 years or under) give a custodial parent the opportunity to be involved in the counselling process. An application to the Children's Court could have this requirement overridden.
If a woman is 20 weeks' pregnant, two out of six doctors appointed by the health minister must agree that the woman or the foetus has a severe medical condition which would justify the abortion. The abortion must be performed in a facility approved by the minister.
The Acts Amendment (Abortion) Act 1998 came into effect on May 26, 1998. The new legislation required that the health department conduct a review of the operation and effectiveness of the new laws after three years. The review was completed on June 17, 2002. It received 123 submissions.
The review found that the legislation was working adequately and should be retained in its current form. In the four years since the new laws were passed, 29,000 abortions have been carried out, around 8300 per year — a similar number to previous years.
The review noted that GPs were commonly confused about their obligations when it came to providing counselling to fulfil the requirement for informed consent as defined in the health act. Many were interpreting the requirement as mandatory psychological counselling provided by a specialist counsellor.
A submission by the Association for the Legal Right to Abortion stated: "ALRA has anecdotal evidence that about half of women attending clinics do not have a good experience going to GPs for the 'informed consent'. A small minority ... report going to GPs who take their money and refuse to refer the patient onwards because of the doctor's personal and moral views ... It is expensive and time consuming to go to a GP first, and there can be delays of two weeks to get an appointment. Many women are made to feel guilty by the GPs."
ALRA president Margot Boetcher told Â鶹´«Ã½ Weekly: "We are compiling a list of doctors who refuse to [provide informed consent]. One woman had to go to five doctors before she got the informed consent form completed. ALRA certainly sees the legislative requirement for women to go first to GPs as an unnecessary hurdle, expensive and difficult."
ALRA recommended the removal of the requirement to receive counselling from a doctor other than the one who will perform the abortion.
The review did not endorse this recommendation. It did, however, find that the requirement which precluded the GP providing counselling from assisting with anaesthetic procedures placed a significant burden on medical practitioners in isolated and rural areas. It recommended that doctors' knowledge of legislation be monitored and that the role of specially trained nurses in medical risk counselling be considered, in order to allow more options for people in rural and remote communities.
The review noted that between May 1998 and March 2002, of the 362 dependent minors who had abortions, there were 26 applications to the Children's Court to overrule the need to involve the parents in a young woman's decision to have an abortion. All of those applications were approved. The reasons for the applications ranged from fears of violence and retribution to cultural and religious reasons.
The review noted: "Concerns were raised that although the Children's Court procedures were working well for urban-dwelling dependent minors, this may not be the case for all rural and regional areas ... It is particularly difficult for dependent minors in far north Western Australia to make timely applications, where the magistrates visit only once every four weeks".
The review noted that the future appointment of an unsympathetic magistrate could have a disastrous impact on young women's lives.
ALRA's submission argued: "Abortion providers have informed us that girls under 16 years are sometimes extremely vulnerable to pressure against their own, independent choice to terminate if they have to have a parent involved in the counselling or decision-making. Some girls fear violence and even death from different cultural pressures. Since GPs already have ethical guidelines for dealing with minors, ALRA considers that [relevant Â鶹´«Ã½] of the Act are unnecessarily prescriptive and discriminatory."
The review's recommendation was simply that "the attorney-general be invited to review the appropriateness of the Children's Court to hear applications", particularly because of the disadvantage to minors in rural and remote areas.
The review noted that, between May 1998 and March 2002, there were 107 abortions carried out after 20 weeks of pregnancy, 0.37% of the total number of abortions performed over that period of time. No abortions were approved for social or psychiatric reasons; in fact, five such applications were denied.
Family Planning WA's submission recommended that the legislation be clarified to allow access after 20 weeks for exceptional social or mental health circumstances, e.g., domestic violence, suicidal intent, late diagnosis of pregnancy or very young women.
In its submission, ALRA's warned that this "is an area where an anti-abortion [health] minister could be a disaster for women". The shadow health minister, Liberal MLA Mike Board, voted against changing WA's abortion laws in 1998.
"It would only take the appointment of anti-abortion doctors to the panel to restrict or stop women accessing abortions post-20 weeks", the ALRA submission continued. "Currently there are problems for providers defining the 20-week limit because of the error rate of at least 10 days in diagnosing gestation with ultrasound, which leaves a grey area legally."
The King Edward Memorial Hospital (KEMH) has found that many issues influence women seeking late-term abortions, including domestic violence, sexual assault, relationship breakdown, mental health issues, ambivalence, misdiagnosis of pregnancy, poverty and incorrect information.
ALRA's submission argued that "if women seek abortion after the mid-trimester, their situation must be extreme, and therefore should be supported by public health service providers... If the minister cannot agree to post-20 week abortions being provided to all women who seek them, then the public health system should offer assistance to women to travel to a destination where such procedures are available."
ALRA recommended that the section of the health act restricting access to abortion after 20 weeks be deleted. The health department's review recommended no changes.
While there are still hurdles and restrictions built into the 1998 legislation which are of substantial concern to supporters of choice, and which the departmental review did not recommend significant changes to, a positive consequence of the clearer legal situation has been the expansion of abortion services.
According to Boetcher, more doctors are happy to perform abortions since the new laws were introduced in 1998. There are now three free-standing clinics in Perth. (There were previously two.) Marie Stopes International, a UK-based sexual and reproductive health foundation, now runs the Midland clinic, set up in 1976 and run by Dr John Charters until his death in 2001.
Dr Victor Chan runs the Nanyara clinic, which has also been operating since 1976. The Rivervale Women's Centre is a new service which began in May 2001.
In addition, there are "several other doctors performing abortions, so there is no shortage of services in Perth", Boetcher explained. "I believe that about 40 doctors have submitted notification forms in the past four years, so there is plenty of choice."
Abortions are also performed in country hospitals such as Port Hedland, Derby and Geraldton. However, according to Boetcher, they can be very expensive as doctors "charge what they want".
Boetcher explained that "KEMH will do [abortions] if a patient has no money, but many hospital staff — nurses and doctors — won't work in the area". KEMH refers most requests to the free-standing clinics, due to the advantage of greater anonymity and speed of being dealt with.
Nanyara will perform abortions until 14 weeks, although 99% are done before 12 weeks. Marie Stopes International will perform abortions up to 18 weeks, and Rivervale Women's Centre up to 16 weeks. Boetcher explained that doctors perform abortions according to their competence, training and habit.
"Nanyara does most abortions, while Marie Stopes is struggling to keep anaesthetists and doctors, and Rivervale Women's Centre depends on providing a variety of services. The anaesthetists are the problem, as their services are so expensive. One wanted $200 per abortion!", said Boetcher.
Dr Alanagh Gilbert does some sessions at the Marie Stopes clinic. Boetcher explained: "She [Gilbert] will do abortions up to 20 weeks, and gets furious with KEMH doctors for refusing to do post-20 week [abortions] if a woman wants one. Even if it's close, like 20 plus one day, [KEMH] won't.
"KEMH performs post-20 week abortions only for foetal abnormality." Boetcher pointed out that "they are in fact not following the letter or the intent of the law, which includes 'severe medical condition of the woman'".
Some women have gone to David Grundmann in Brisbane for post-20 week abortions. There are also clinics in Adelaide, Sydney and Melbourne which will do them, however, Adelaide has a two-month residency clause which stops interstate clients.
From Â鶹´«Ã½ Weekly, October 23, 2002.
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