Safe access zones, free speech and abortion rights

Protesters outside NSW Parliament in favour of safe zones around abortion clinics. Photo Rachel Evans

The Global Day of Action for Women's Health was on May 28. Around the world, the preceding week was punctuated by significant actions for abortion rights.

The most significant was the resounding Yes vote in the May 25 Irish referendum on removing the ban on abortion from the constitution. This gave a shot in the arm to the campaign for abortion rights in the six counties of Northern Ireland, where the anti-abortion provisions of British Offences Against the Person Act from 1861 remain in force.

Hundreds gathered in Belfast on May 28 to launch a campaign to push the British government to lift the ban on abortion there. The same day, protesters in Brisbane rallied in a push to overturn similar legislation in Queensland.

In NSW, May 28 was marked by the passage through the state's Legislative Council of a bill to protect access to abortion clinics. It is due to be debated in the Legislative Assembly (lower house) next month.

If passed, the bill will introduce stiff penalties — a $5500 fine or six months in jail or both, for a first offence and $11,000 or 12 months jail or both, for a second offence — for anyone harassing people entering medical clinics where abortions are performed.

Similar penalties would apply to anyone interfering with or obstructing anyone trying to enter the clinic, anyone trying to give literature about abortion or talk to anyone entering the clinic if it is likely to cause distress or anxiety and anyone filming or recording anyone in the vicinity of the clinic without their consent.

The legislation is designed to create a 150 metre buffer zone around the clinics and clinic entrances, to allow anyone needing to access the clinics — patients, support people and staff — to do so in privacy and without intimidation or abuse from those opposed to abortion.

Tasmania, Victoria and the ACT have similar legislation. There are moves to introduce protective legislation into Western Australia and the Queensland Law Reform Commission, due to report on modernising the state's abortion laws by the end of June, invited public comment on the issue of safe access zones among other issues.

In NSW, WA and Queensland, which have no protective legislation, groups opposed to abortion regularly set up outside clinics to try to prevent abortions by intimidating or convincing patients to change their minds. They are especially active in the 40 days of Lent, observed by some Christian traditions. (For some reason, ostensibly to do with following the person who said "Don't judge others, so you won't be judged", while other people are giving up chocolate, they give up minding their own business.)

Outside a WA clinic this year, they were distributing information with links to an organisation based in the US, And Then There Were None, that aims to end abortion "from the inside out", by convincing staff to stop providing services.

But some clinics are subjected to harassment year round. MLC Penny Sharp, who co-sponsored the NSW bill, described the behaviour, which extends from displaying distressing images and attempting to hand unwanted literature to people, to sprinkling holy water on people and calling them a "murderer".

Even quiet prayers and polite greetings, in a context where it is clear that a judgement is being made against the decision to undergo abortion, have potential to harm. At best it represents a form of observation that poses a threat to women's right to access reproductive healthcare in privacy and dignity.

While many people undergoing abortion find the decision straightforward, for others it is difficult and painful and the distress of the decision and procedure can be compounded by the scrutiny and judgement of others. In any case, it is not a form of scrutiny, stigmatisation, harassment or interference consistently meted out to men, or indeed to anyone for any other kind of healthcare.

We do not accept it for anything else, and we should not accept it for abortion care.

Opponents of the legislation (predictably, Christian Democtratic Party leader Fred Nile in the NSW Legislative Council) claim the law will impede the exercise of free speech. Free speech is an important right for progressives to defend. Historically, legislation curtailing political rights of bigots and haters has been used to attack the left.

Freedom of speech is not a right that is well codified in law in Australia. The High Court has ruled that the constitution contains an implied protection of free speech, but defines it narrowly in terms of participation in activities connected to parliamentary democracy.

But clinic safe zone legislation does nothing to stop the development of public political campaigns anywhere other than in the vicinity of the clinic. By preventing behaviour intended to stigmatise abortion, and the harassment and intimidation of people accessing clinics, such legislation can promote the privacy, dignity and safety of people needing an abortion, and the friends, family and staff who support and serve them.

Clinic safety legislation should be enacted and enforced. Whether pregnancy termination is being contemplated because a wanted pregnancy has been found to be unable to survive, because an unplanned pregnancy is unwanted, or for any of the complicated reasons that can bring a pregnant person to an abortion clinic, no one should be faced with the public shaming and humiliation that go on outside services at the moment.

In NSW and Queensland, such protective measures, if introduced, will have an immediate impact on improving the wellbeing of those who access abortion services. However, such measures alone will not be enough to improve access to abortion, while the procedure remains in the criminal codes of those states and generally inaccessible through the public hospital system.

To be safe and accessible, abortion needs to be legal and available in locations close to where people live. Last year, the NSW Legislative Council rejected a bill to remove abortion from the criminal code, while a similar bill was withdrawn from the Queensland parliament without even being debated.

The campaigns for abortion law reform in both states remain active despite these setbacks, and last week's victory in the NSW Legislative Council can only be a further motivation for the campaign to make free, safe, legal abortion accessible on demand without apology.

[Dr Kamala Emanuel is a member of the Socialist Alliance and an abortion provider active in the campaign for abortion law reform in Queensland.]

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