Abortion safe access zones challenged in High Court

October 19, 2018
Protesting for safe access zones in NSW in June. Photo: Pip Hinman

Abortion rights advocates are hoping the High Court’s findings will support laws that have assisted access to abortion clinics, after it heard a challenge to safe access zone laws over October 9-11.

Kathleen Clubb and John Graham Preston are challenging Victoria’s and Tasmania’s safe access zone laws, claiming they violate free speech.

Clubb, who is linked to the United States anti-choice group Helpers of God’s Infants, was convicted in Victoria in 2016 of communicating about abortion in a manner “reasonably likely to cause distress or anxiety” to a couple trying to enter the Melbourne Fertility Control Clinic.  

Preston was convicted after protesting within the safe access zone outside Hobart’s Specialist Gynaecology Centre.

Safe access zones have been established in Tasmania, Victoria, the ACT, the Northern Territory and New South Wales. Queensland is set to vote on a similar law as part of its abortion law reform package.

In each state and territory, the laws, which are targeted at anti-abortion campaigners, prohibit conduct likely to cause distress or anxiety in a specific area around abortion providers.

The case is significant as it centres on free speech, which is only an implied right in the Australian Constitution.

The Human Rights Law Centre provided a submission to the court strongly supporting safe access zone laws on the basis they ensure “women and clinic staff do not have to forgo their rights to safety, dignity and privacy”.

It argued “it strikes the right balance” between the freedom of political communication and the right of every woman to access abortion care without being harassed or intimidated.

The federal government, as well as state and territorial governments in NSW, Queensland, South Australia, Western Australia and the Northern Territory intervened in support of the Victorian and Tasmanian laws.

Monash University’s Castan Centre for Human Rights Law has also presented a submission to the court based on research, in the form of interviews, with Victorian health professionals to evaluate the nature and impact of the anti-abortion protests on clinics.

In its submission, the centre argued that as the conduct of anti-abortion campaigners was not an exercise in political communication, but rather “consisted of threats, intimidation and harassment”, it could not be said to be a threat to the right to freedom of speech.

It also found that safe access zones “are necessary to protect the safety, wellbeing and privacy of patients and staff”.

The centre also believes that the law did not “impermissibly burden” the implied right of political communication.

Instead, it contended that the conduct of protesters trying to prevent individuals from accessing abortion services without the limits imposed by safe access zones does “impermissibly interfere with” a patient’s right to privacy, security, the highest standard of health care and, importantly, the right to decide freely and responsibly on the number and spacing of their children.

The research showed that anti-abortion protesters operated as a barrier — physical and mental — to women accessing abortion services.

It also added a lot of strain on clinic staff, who in some cases have had to close clinics down.

The submission noted that the anti-abortion protesters’ shaming and intimidation of patient’s was aimed at delaying, if not preventing an abortion. This can have significant and adverse consequences on the patient: even a week’s delay can affect the patient’s eligibility for medical (rather than surgical) abortion.

To the extent that these laws burden the implied freedom of political communication, the Castan Centre noted that it was “appropriate” as they uphold the right of women to access a medical service over those of moral crusaders fighting a rearguard action to stop women from having bodily autonomy.

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