Máiréad Enright

The Health (Regulation of Termination of Pregnancy) Act 2018 (HRPTA) makes no provision for exclusion zones to prevent protests at locations where abortions are provided. However, exclusion zone legislation is expected to be introduced this year. This note explains some options for reform.

Exclusion zones are also called safe access zones, safety zones, or buffer zones. They are designed to criminalise behaviour outside healthcare premises which is intended to, or is likely to, deter people from accessing abortion, undermine their privacy, or prevent them from entering the premises at all. United Nations bodies have recommended that states should take measures to prevent violence, harassment and obstruction of women seeking access to termination of pregnancy services and facilities.

Exclusion zone laws usually designate the dimensions of an area (e.g. 100 metres from a clinic entrance in all directions) within which certain behaviours are forbidden. Relevant behaviour may include protest, display of graphic images, attempted on-street pregnancy counselling, “vigils”, recording people entering a building, surveilling a building or its staff, approaching people trying to enter a building or blocking their way, or public prayer.

Exclusion zone laws are in effect in parts of Canada (at provincial and local government level), parts of Australia and some of the United States. The Isle of Man’s new abortion legislation (not yet in force) also provides for safety zones.

In the UK, in a widely-criticised decision, the Home Secretary recently declined to legislate for exclusion zones, despite ample evidence of the impact of clinic protest on women. Instead, local authorities have narrow, time-limited powers to grant public space protection orders in respect of individual affected clinics under the Anti-Social Behaviour, Crime and Policing Act 2014. This was first done in the London Borough of Ealing.

Jurisdictions tend to introduce exclusion zone legislation where other approaches prove inadequate to protect legal rights to access healthcare. In New Zealand (which has a more conservative abortion law than Ireland) the Law Commission explains that it has not recommended exclusion zones for this reason. At the moment, there is no specialised Irish law which can effectively tackle protest outside buildings where abortion services are provided.

The Criminal Justice (Public Order) Act 1994 is not an effective means of preventing anti-choice obstruction of access to care.  Section 7, which regulates display of offensive material has already proven ineffective to address display of graphic abortion imagery outside maternity hospitals. Other provisions under the Act are targeted at violent or provocative behaviour, and so are unlikely to catch more restrained activities – for example, silent or polite protest – which may nonetheless be hurtful, obstructive and intimidating. The law on harassment is only useful to catch repeated targeting of one individual by another. So, while it might be useful to doctors or employees who encounter the same protestor every day, will not be helpful where a patient is targetted during one or two visits to the same healthcare premises. Some years ago, the IFPA obtained an injunction against militant anti-abortion protestors, and Canadian courts have granted injunctions in similar cases. Injunctions are reactive, not proactive measures – they are granted in response to past behaviour – and the test for obtaining a permanent injunction is reasonably demanding. And, even if injunctions can be obtained in individual cases, this route is obviously expensive and burdensome. The number of affected locations (especially given the role of primary care providers in the provision of services and the potential for protest at their homes) and the number of potential protestors may also pose challenges. Arguably the law on nuisance could be also used to control some kinds of ongoing loud or disturbing protest, but again this is a limited avenue. Finally, a garda may issue a verbal or written behaviour warning under the Criminal Justice Act 2006 if one person subjects another to behaviour which causes or is likely to cause “significant or persistent alarm, distress, fear or intimidation”. This is the first step in applying for a temporary civil anti-social behaviour order, if the behaviour persists.

Many policy-makers think that the key issue here, as the Taoiseach has recently acknowledged, is the balance to be struck between protecting access to premises (and service provision, given the deterrent effect of protests) and protecting freedom of protest, assembly, political expression and perhaps religion in public space. It is generally accepted that the right to freedom of protest can be restricted in the interests of public order and morality, including to protect the rights of others (see e.g. Van den Dungen v. Netherlands). The point is not that some viewpoints must be silenced, but that some methods of expressing those viewpoints cannot be permitted.

The legal question, on this framing, is essentially whether the exclusion zone is a proportionate means of achieving the government’s aims. The balance to be struck is sometimes controversial. The Australian High Court is expected to give judgment soon on the constitutionality of exclusion zones in Tasmania and Victoria. By and large, however, as the Center for Reproductive Rights has noted, courts have upheld measures of this kind. The recent English High Court decision in Dulgheriu v. Ealing  suggests that issues to consider in striking the balance may include:

• The forms of harm and intimidation which anti-abortion activism may cause to people seeking to access abortion services, doctors, employees and others accessing, passing by or living near the healthcare facility. These issues have been considered by the European Court of Human rights in Annen v. Germany (2015) and (2018), (unfortunately with an emphasis on doctors’ rights rather than on the rights of both doctors and patients).
• The size and location of the zone e.g. within 150 m of the entrance to a doctor’s home. Some U.S. states employ ‘bubble zones’  or ‘floating’ buffer zones, where the distance is calculated from an individual, such as a staff member or a patient. Bubble zones may be used instead of or in addition to exclusion zones. In the Isle of Man, safety zones will not be attached to buildings by default, but will be established at health providers’ request.
• The specific activities to be prohibited within the zone.  An exclusion zone which, for example, prohibits simply standing on the street near a healthcare facility where abortions are carried out would probably be too broad. (This was one reason why the Massachusetts Freedom of Access to Clinic Entrances Act was struck down by the US Supreme Court in McCullen v. Coakley for violation of the U.S. constitutions very broad freedom of speech guarantees. More narrowly-drawn buffer zones were upheld in  Hill v. Colorado; Madsen v. Women’s Health and Schneck v. Pro-Choice Network.) In principle,  an exclusion zone could apply to both anti-abortion activity and pro-choice counter-protests.
• Whether the operation of the zone will be reviewed regularly.
• Whether those who would wish to engage in protest, or in conversation with service users will have an alternative effective means of exercising their freedom of expression. In R v. Spratt, the British Columbia Court of Appeal accepted that an exclusion zone is not invalid simply because it captures some forms of peaceful anti-abortion protest, or deprives anti-abortion activists of a captive audience.
• Whether the state can use less restrictive methods than an exclusion zone; for example criminalising individuals’ actions, or protecting locations which are at particular risk rather than imposing exclusion zones at all relevant premises. (This was another reason why the Massachusetts buffer zone law was struck down in McCullen v. Coakley.)
• The powers and practical capacity of An Garda Síochána and other security personnel to enforce those zones (e.g. arrest as a last resort).

Instead of exclusion zones, some jurisdictions provide for tailored individual offences of obstructing access to abortion, or obstructing access to premises where abortion is provided. These include South Africa (s. 10(c) of the Choice, Termination of Pregnancy Act), France (under the Public Health Code) and some US states. US law is quite varied and ranges from broader prohibitions on intimidating or noisy behaviour outside clinics, to narrower bans on directly blocking entry to a clinic. While these measures provide more space for protest, they may be inadequate to protect pregnant people. We have already seen, from garda refusal or inability to enforce s. 7 of the Criminal Justice (Public Order) Act against the Irish Centre for Bioethical Reform, which displayed graphic foetal imagery on the streets and in front of maternity hospitals during the referendum, that offences which depend on evaluation of individual behaviour and intentions may be difficult to enforce, especially in politically contested contexts. They may also be also an inadequate response to organised anti-abortion activism, whereby when one activist is punished, another can simply take their place. A safe access zone, by contrast, lends clarity and certainty to the question of demonstrations and activism at health facilities. Individual offences of obstructing access to abortion may be useful for other purposes, but are not a real substitute for an exclusion zone.

Legal protections of this kind for people needing to access abortion and their doctors are both permissible and necessary. The policy decision facing the Oireachtas now is about how substantial those protections should be. In July, we in Lawyers for Choice recommended that the Oireachtas provide for exclusion zones. Some of our academic members have previously written in support of exclusion zones along Australian lines. Prohibited activities should not be confined to acts of violence, ‘obscenity’ or efforts to directly obstruct access to a healthcare facility by impeding individuals’ free movement, but should also include any threatening behaviour likely to intimidate or distress potential service users or disrupt employees’ working conditions. Protection should extend to those inside the facility, who can hear and see activities outside. The law should be drafted to take account of the likelihood of causing distress to those hearing or seeing the offending behaviour, irrespective of the anti-abortion activist’s stated intentions.

• This article first appeared on the Lawyers for Choice website.