Improving abortion exclusion zone laws

Creating laws which fairly deal with protest and people’s right to privacy, particularly medical privacy, is complex, and nowhere more so than around abortion clinics. Here is CLA’s position.

Improving abortion exclusion zone laws

 By Tim Vines, Vice-President
of Civil Liberties Australia

Abortion clinic ‘access zones’, ‘exclusion zones’ or ‘buffer’ and ‘bubble’ zones as they are also known in the USⁱ, restrict certain behavior within a limited geographic space around health clinics that offer abortion services and/or staff and women who are approaching and entering those clinics.

Within an exclusion/access zone (typically 100-150m from a clinic)ⁱⁱ, certain forms of speech and contact are prohibited, including:

• ‘harassing, menacing, intimidating or besetting’ a woman or staff member entering the clinic;
• approaching a woman entering a clinic with the intention of passing her information which is designed to change her mind to seek an abortion
• hindering or obstructing the entrance to a clinic that provides abortion services;
• filming or recording individuals entering or leaving a clinical that provides abortion services; and
• protesting, whether silently or verbally, against abortion in general.

Since Tasmania introduced exclusion zones in the Reproductive Health (Access to Terminations) Act 2013 other States and Territories have begun to consider similar legislation. While CLA supported the introduction of access zones in Tasmania,ⁱⁱⁱ we have reservations that the Tasmanian law – and proposed legislation in other jurisdictions – as it applies to protest, is not a proportionate response and restricts free speech inconsistently with the International Convention on Civil and Political Rights (ICCPR).

CLA and legal commentators are also concerned that these laws may not be ‘appropriate and adapted’ towards a legitimate aim and, therefore, conflict with the implied constitutional right of political communication.^ivConsidering recent activity in this space in other jurisdictions, we are concerned that an overly restrictive model governing access zones is likely to be exported to other jurisdictions.

It is important to note that Article 5 of the ICCPR states: nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

That is, the right to privacy and freedom of expression cannot be played against one another so as to destroy one or both rights. Ways to reconcile them must be found. That may mean accommodating some protest.

On the basis that protest is protest, whether or not a majority of society agrees with the content of that speech, CLA has been engaging with legislators to design nuanced approaches to exclusion zones. Currently, our position on these laws is as follows:

• CLA is comfortable with laws preventing individuals from ‘harassing, menacing, intimidating or besetting’ women or staff member entering a clinic; and
• Likewise, CLA can support measures designed to prevent individuals hindering or obstructing the entrance to a clinic that provides abortion services as these actions are destructive of the rights of women to access a legal, medical procedure and to exercise medical autonomy;
• Recognising that privacy in accessing and obtaining medical services is a crucial right, CLA also supports restrictions on third-parties recording or filming women and staff without consent where such actions are intended to discourage women from seeking an abortion;^v but
• Current limitations on protesting are often made too broad,^vi with both the size of the exclusion zone and its application to both private and public property problematic. ^vii

On this final point, we note that recent, draft legislation in the ACT takes this concern on board and, rather than setting a legislative exclusion zone size (of, for example, 100 or 150 meters) adopts a more nuanced approach where the Minister must set an exclusion zone, but the size of the zone is not legislatively pre-determined. CLA worked with the member responsible for this bill.

Our view is that the Tasmanian law (and proposed laws based on the Tasmanian model) could be improved by:

• Implementing exclusion zones in non-Criminal statues (for example, the Health Act (ACT) or Health Services Act (Vic). This encourages the use of a variety of criminal and civil remedies (such as enforceable undertakings, injunctions etc…);
• To ensure the restriction on speech and protest is appropriate and adapted to the circumstances and a proportionate measures, the size of an exclusion zone should not be set by legislation but by determined by the relevant Minister or Secretary/Director-General of Health in a regulation or disallowable instrument. A maximum radius could be prescribed by the law. Benefits of this approach include:
• allowing for more refined exclusion zones which could be bounded by landmarks or public streets (thereby avoiding some of the private property problems possible under the Tasmanian law);^viii and 
• permitting additional parliamentary scrutiny of any restrictions on protest

To ensure the law was effective, it could provide that the Minister/Director-General must make an exclusion zone:if employees of the Health Facility, or their union, request on the basis that there is a genuine safety risk; or

• following an application from an individual with a relevant interest;
• following an application from a public-interest entity with a relevant interest (such as a women’s health organisation); or
• if a Court or Tribunal makes an order.

• To ensure compatible with a Human Rights Act (if one exists in the jurisdiction), these laws should also provide that a group or individual can apply to a merits review tribunal to challenge the size and scope of the exclusion zone on the grounds that it is disproportionate. However, a tribunal should be required to consider the protection of privacy and access to healthcare as a paramount matter
• A prohibition on protesting should not extend to protests occurring on private property unless the protest would also constitute a ‘public nuisance’ (for example, if it used a PA or broadcast system). This issue can be avoided if the legislation provides for a power to set or determine an exclusion zone;
• Any law should specifically seek to empower women and women’s groups to take a lead role in the establishment of exclusion zones. It is not sufficient to leave it to police.
• States and Territories should work with groups like CLA in developing their laws; learn from other States’ experiences; and not create laws that seek to stop the martyr at the expense of the law-abiding majority.

ⁱ In the US, buffer or bubble zone laws have been imposed by some States around clinics (‘fixed zones’) and staff, women seeking abortions and even cars driving women to the centre (‘floating zones’). US buffer zones are usually very small, varying from 2 metres for a ‘floating zone’ and 10 metres for a fixed zone. While small fixed buffer zones have generally survived constitutional challenge (Hill v. Colorado 530 U.S. 703 (2000) but see McCullen v. Coakley 573 U.S. ___ (2014)), floating zones have been held to impermissibly infringe the First Amendment of the US Constitution (Schenck v. Pro-Choice Network of Western New York 519 U.S. 357 (1997)).

The US Congress also passed the Freedom of Access to Clinic Entrances Act in 1994, although this only prohibits: the use of physical force, threat of physical force, or physical obstruction to intentionally injure, intimidate, interfere with or attempt to injure, intimidate or interfere with any person who is obtaining reproductive health services or providing reproductive health services;  the use of physical force, threat of physical force, or physical obstruction to intentionally injure, intimidate, interfere with or attempt to injure, intimidate or interfere with any person who is exercising or trying to exercise their First Amendment right of religious freedom at a place of religious worship; and the intentional damage or destruction of a reproductive health care facility or a place of worship. It does not prohibit protests, handing out literature, shouting, or singing hymns.

ⁱⁱ Reproductive Health (Access to Terminations) Act 2013 (Tas), s 9(1); http://www.heraldsun.com.au/news/victoria/sex-party-mp-fiona-patten-wants-protest-exclusion-zones-around-abortion-centres/story-fni0fit3-1227206827534; http://www.canberratimes.com.au/act-news/shane-rattenbury-calls-for-abortion-clinic-exclusion-zones-to-deter-protesters-20150325-1m79br.html.

ⁱⁱⁱ http://www.abc.net.au/pm/content/2013/s3897278.htm

^iv Whether such laws are sufficiently inconsistent with the right to be valid is debatable: http://theconversation.com/tasmanian-ban-on-abortion-clinic-protests-may-not-be-constitutionally-valid-20650 but see http://theconversation.com/tasmanias-abortion-protest-law-is-probably-constitutionally-valid-20784. Given the High Court’s reluctance to support free speech in Australia – see, for example http://www.austlii.edu.au/au/cases/cth/HCA/2013/3.html – we do not expect the Tasmanian law to be struck down; however, that does not affect our view that the law as framed is a disproportionate response to protest.

^v Some level of intention/recklessness should be required as we believe the general public has a right to photograph or record events (such as interactions with police) that occur in public areas. However, CLA consistently refers to the importance of medical privacy in its statements on, for example, CCTV systems.On this point, CLA also supports the introduction of a general Tort of Privacy that would be a non-criminal tool that could be deployed against individuals and religious organisations who engaged in or encouraged flagrant breaches of a person’s privacy.

^vi Under the Tasmanian Act “a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided” that occurs within an access zone is “prohibited behaviour” (s 9(1)) (emphasis added).

^vii “Access zone” is simply defined by the Tasmanian Act as “an area within a radius of 150 metres from premises at which terminations are provided” (s9(1)). No exclusion is given to private property within an access zone.

^viii While CLA does not endorse the modern use of such provisions, the system of ‘emergency authorisations’ granting police additional powers to search and detain people during public disturbances or events such as the G20 and APEC provides a model for defining the geographic and temporal limits of an exclusion zone: see, e.g., s 87F, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).