Abortion clinic safe zones do not breach protesters’ rights, Supreme Court rules

A panel of seven justices concluded that a clause is not incompatible with the rights to freedom of conscience, assembly and expression of protesters.

Marie Stopes clinic demonstrations
Marie Stopes clinic demonstrations

A law in Northern Ireland which prevents anti-abortion protests from taking place directly outside clinics does not breach the rights of protesters, the UK’s highest court has ruled.

Dame Brenda King, the Attorney General for Northern Ireland, referred a clause in the Abortion Services (Safe Access Zones) Bill to the Supreme Court after it was passed by the Northern Ireland Assembly in March.

She argued the clause does not provide for a “defence of reasonable excuse” and asked the court to consider whether it is a “proportionate interference” with the rights of “those who wish to express opposition to abortion services in Northern Ireland”.

In a unanimous ruling on Wednesday, a panel of seven justices concluded that the clause is not incompatible with the rights to freedom of conscience, assembly and expression of protesters, enshrined in the European Convention of Human Rights, and therefore is not beyond Stormont’s powers.

Giving the lead ruling, the court’s president Lord Reed said: “The right of women in Northern Ireland to access abortion services has now been established in law through the processes of democracy.

“That legal right should not be obstructed or impaired by the accommodation of claims by opponents of the legislation based, some might think ironically, on the liberal values protected by the convention.

“A legal system which enabled those who had lost the political debate to undermine the legislation permitting abortion, by relying on freedom of conscience, freedom of expression and freedom of assembly, would in practice align the law with the values of the opponents of reform and deprive women of the protection of rights which have been legislatively enacted.

“The legitimate aim of the bill is to enable women to access reproductive health services without being subjected to interference, whether by means of intrusions upon their privacy and dignity or through other forms of pressure to change their minds.

“That legislative aim cannot be reconciled with the desire of the protesters to target those women at the very time and place when they are seeking to access those services.

“Equally, insofar as the aim of the bill is to ensure that the staff of reproductive health clinics are not subjected to pressure to stop working there, that aim cannot be reconciled with the desire of protesters to target those members of staff as they approach their place of work.”

The bill, which has been on hold pending the ruling, creates zones of 100 metres – with the possibility of extending them up to 150 metres depending on the location of the clinic – where protesters are not allowed to gather.

Lawyers representing the Attorney General argued at a hearing in July that the clause “fails to strike a fair balance” between the rights of protesters and the general interest of the wider community, including patients and staff at clinics.

Lord Reed said the protection of the privacy and autonomy of women, enshrined in article 8 of the convention, was of “particular importance”.

He said patients have a reasonable expectation of being able to access clinics and hospitals “without having their autonomy challenged and diminished, whether by attempts by protesters to persuade them to change their minds, or by protesters praying for the souls of foetuses with the intention or effect of provoking feelings of guilt, or by other means calculated to undermine their resolve”.

The judge referred to evidence in a 2018 report by the Royal College of Obstetricians and Gynaecologists as part of a Home Office review of anti-abortion protests near clinics, which described activities taking place on an almost daily basis and found they left patients and staff angry and upset.

Lawyers for the Attorney General also highlighted the importance of protests in contributing to public debate, but Lord Reed said protests are still possible, just restricted.

He said: “In response, it might be said that the protesters are more focused on influencing the personal decisions of individual women than on the political question of whether abortion law should be amended.

“However, insofar as the protests might be argued to contribute to a public debate about abortion, the bill does not prevent the protesters from continuing to make such a contribution.

“They can write and distribute books, articles and other texts, they can speak to individuals and groups in public forums and in any private venue that is willing to accommodate them, they can demonstrate peacefully in countless locations, they can appear on television and speak on the radio, they can post messages on social media and send emails.

“They can express their views in terms that are uninhibited, vehement and caustic.

“They can do so wherever they please, except within the immediate vicinity of hospitals and clinics where abortion services are provided.”

Regarding the size of the zones, the court concluded that a safe zone of up to 250 metres would not amount to an “unjustifiable restriction of the rights of protesters, when they remain free to protest anywhere else they please, and when the rights of the patients and staff are also taken into consideration”.

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