Abortion access and free speech

July 5, 2018
Pro-choice activists protest 'pro-life-ers' during a rally for abortion rights in Brisbane in 2010.

The same week the NSW parliament passed legislation to protect access to abortion services, images of clinic harassment in Brisbane went viral and Queensland Deputy Premier Jackie Trad pledged to introduce similar protection in Queensland when abortion law is reformed later this year.

As if to underscore the value of these laws, within days of the passing of the NSW legislation, the partner of one of my patients (in a clinic in Victoria) told me how glad he was there were no protesters outside the clinic, saying his partner would not have been able to come in for her appointment had protesters been there.

Green Left Weekly reported on the NSW legislation, welcoming it as a victory for reproductive rights for women (and anyone with a uterus). One of the articles was run as a Socialist Alliance comment piece.

By contrast, Socialist Alternative ran an article by Emma Norton in its newspaper Red Flag arguing it was not a victory for women but an attack on democratic rights to free speech and protest.

Norton cautioned that the new law could be used to criminalise legitimate protest outside abortion services and that the same arguments used to prevent bigots from setting up outside abortion clinics could be used to justify legislation to limit protest rights for progressives.

A subsequent article by Daniel Lopez in Red Flag put a counter-position in favour of clinic protection laws.

As a contribution to the discussion, this article argues for legislation to protect access to abortion services. I will address the specifics of the NSW legislation and broader issues regarding the state and its role in attacking and defending women's rights.

Safe access zones

The NSW legislation establishes safe access zones in and around abortion services, where certain activities are banned. In the premises, and in the zone 150 metres from the building or entrance, it is generally prohibited to interfere with someone entering or leaving, cause or potentially cause distress to someone in the safe zone and to film or photograph anyone there or distribute images of anyone filmed or photographed there without their permission.

Norton claimed the NSW legislation could be used to criminalise healthcare workers’ legitimate protests outside services where abortions are carried out.

Even if this were the case, the loss of a hypothetical or infrequently used right, which most workers in abortion services will never or seldom try to exercise, would have to be weighed up against the real-world daily need for access to services, unimpeded by bigots whose aim is to use stigma, shame and humiliation to invade the privacy of patients and attempt to prevent them from using the services they want or need.

As it happens, the NSW law has exemptions in most sections, either for employees or others providing services in the clinics (in the case of communicating about abortion or capturing images), or for anyone with a reasonable excuse to block a footpath or film.

The only section of the legislation without an exemption is the section prohibiting harassment, besetting and other forms of “interfering” with people entering or leaving.

It is hard to imagine the very people who spend their working lives ensuring women can be provided with abortion services and support in the face of real harassment, would set up protests that could be construed as hindering access to services, or that there would not be a way to make clear they were about making access to abortion services sustainable.

The fact that my response to Norton’s criticism of the legislation is framed in such hypothetical terms points to the most important problem with her argument: it fails to recognise the significance of clinic harassment as a factor impeding women’s access to abortion. She sets up a hypothetical scenario against the real-world need of women for the defence of our rights.

It would be naïve to assume the law could never be used against legitimate protest, but the outcome would not be predetermined. There would be enough in the framing and intent of the legislation and the wider community acceptance of the purpose of the law, to mount a defence.

Bigots cry foul

On the other hand, the new law has put the bigots on the back foot. It has been received by abortion rights campaigners and anti-abortionists alike as an endorsement of pro-choice sentiment, a vindication of women’s right to abortion services and a signal that the community is no longer willing to accept the organised stigmatisation of abortion.

The bigots are crying foul, complaining their freedom of speech has been limited. Much of what they are calling “freedom of speech” is the opportunity to throw toy foetuses (or “holy water” or leaflets), show images of foetuses with false claims about their gestation, claim falsely that abortion is harmful and generally intrude with unwelcome, unsolicited moralism and scrutiny.

The law specifically exempts activities within churches, outside parliament, or in conjunction with an election campaign. Although this reflects a narrow conception of freedom of political communication, it is clear that the airwaves and billboards, streets, cyberspace and churches will still be able to host competing ideas about reproductive rights, personhood and the protection of life.

What is being restricted is the right to engage in coercive behaviour that, in practice, limits women’s safe access to abortion.

Calling out to strangers “God hates the hands that shed his blood”, “baby-killer”, “murderer” or “please don’t terminate your baby” may be speech. But it’s not just speech.

Context is everything. In the context of the anti-abortion campaigns of stigmatisation and vilification designed to prevent women from accessing abortion — whether through shame and humiliation, the threat of making their identity public or other forms of harassment and coercion — it is a violation of the right to privacy, to access safe healthcare with dignity, and, in the worst instances, it prevents women from getting the healthcare they need.

In Queensland, abortion rights group ProChoice Qld has been organising members of the community to escort women past the anti-abortion bigots protesting outside four Brisbane abortion clinics. Such escorting has a long history in Australia, Canada, the US and beyond. It can play a role in organising pro-choice action and building political campaigns for abortion rights. But ultimately, most clinic staff, patients and escorts would prefer the harassment would end, rather than to continue to organise the safe passage of patients into the clinics.

Neoliberal governments have been attacking workers and our rights to organise, and we need to defend ourselves from those attacks.

But Norton’s argument against safe zones rests on the absurd notion that we cannot demand the state support our rights — in this case to access health care without harrassment. She misses the signifiance of the new law as one more step in the direction of winning abortion access in NSW, and the ripple effects it will have on securing abortion rights in other states. 

Abortion does need to be free and legal to be fully accessible and this is yet to be attained.

But it also needs to be safe — not only to be provided by appropriately trained practitioners in properly-run facilities, but also to be provided with guarantees of privacy and dignity.

What the state currently does not do is uphold the right of women to access healthcare in private, without stigmatisation, humiliation and harassment. This new legislation is a step in that direction.

[Kamala Emanuel is an abortion provider. She has worked in abortion clinics in NSW, Tasmania, Western Australia, Victoria and Queensland, and been involved in campaigns for abortion rights in NSW, Tasmania and Queensland.]

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