THE RECENT PROTEST outside the national maternity hospital has brought the issue of exclusion zones back into the spotlight.
During the passage of the Health (Regulation of Termination of Pregnancy) Act 2018 there were suggestions that exclusion zones, sometimes called safety or buffer zones, be provided for in legislation to protect women accessing services in premises offering terminations.
But in order to progress the legislation, it was decided to consider the issue of exclusion zones separately and while legislation on this issue was promised, no progress has yet been made on this.
The problem with drawing up legislation on exclusion zones is that there are competing rights involved.
One the one hand you have the right to freedom of expression and the right to assemble peaceably in order to protest. On the other, you have the right to access healthcare services without intimidation or harassment.
The protesters argue that their demonstration is a peaceful one and they are not causing harm and therefore any attempt to prevent this would be heavy-handed, unfair and potentially unconstitutional.
However, the rights to freely express opinions and to protest are not absolute, can be limited and can be regulated on the grounds of public order and morality.
Why create exclusion zones?
The protesters may feel they are not causing harm and are simply trying to express their views but the reality is that such demonstrations can be extremely intimidating and not just for those intending to access abortion services.
It can be quite upsetting for nervous parents in early pregnancy, children visiting newly-born siblings, couples who have received distressing diagnoses, and especially for those suffering miscarriages to be confronted with these protests and particularly with the commonly used graphic imagery.
As someone who has experienced the trauma of miscarriage, I can only imagine how much more difficult and upsetting an already traumatic experience must become when met with these protests on entering and leaving the hospital.
Minister for Health, Simon Harris told reporters after the protest that women entering the National Maternity Hospital who had or were miscarrying were being asked by protesters if they planned to murder their child.
It can also be difficult for hospital staff who may have to pass the protests every day and who may have their names taken or be approached by protesters.
No matter the intention, it is clear that such behaviour is intimidatory and constitutes harassment.
Why is new legislation necessary?
The problem is that our current laws are not suitable to regulate this kind of behaviour.
The Criminal Justice (Public Order) Act, 1994 prohibits disorderly conduct, riot, violent disorder, etc but silent or peaceful protests would not come within the remit of the Act, even if they are intimidatory.
Section 7 could potentially be used to address the display of graphic abortion imagery; it prohibits the display of material that is ‘threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned’.
But thus far this has not been used, possibly due to the difficulty in proving the breach of the peace element of the offence.
Section 10 of the Non-Fatal Offences Against the Person Act, 1997 prohibits harassment but the Act envisages persistent behaviour against a single person and so is not adequate to cover the protest scenario.
What have other jurisdictions done?
Various approaches are taken in other jurisdictions, for example in the UK, local authorities have the power to grant specific public space protection orders for premises which are affected under the Anti-Social Behaviour, Crime and Policing Act 2014.
This was first done in the London Borough of Ealing and in July 2019, the Court of Appeal dismissed a challenge to one of these orders.
The Isle of Man’s Abortion Reform Act 2019 contains a provision whereby zones will not be attached to buildings by default but will be established at health providers’ request.
In the United States, the Freedom of Access to Clinic Entrances Act (FACE), makes it an offence at federal level to use intimidation or physical force in order to prevent a person from entering a facility which provides reproductive healthcare or a place of worship.
In addition, three states and several local governments have implemented different types of ‘bubble zones’ around facilities. Some of these were later declared unconstitutional due to their vague nature but others have been upheld.
In British Columbia, the Access to Abortion Services Act was passed in 1995, following the shooting of a doctor who carried out terminations. The Act created access zones around facilities and the offices and homes of doctors and service providers. The zones around provider homes and offices are automatic while facilities must apply for zones.
Within the zones, it is an offence to engage in sidewalk interference, protesting, besetting, physical interference, and intimidation. The Act survived a number of constitutional challenges due to its narrow focus.
Many other areas of Canada have similar provisions. Five jurisdictions in Australia have enacted similar legislation and last year the High Court dismissed a challenge to zones established in Victoria and Tasmania.
The way forward?
The key element in any prospective legislation in Ireland will be to ensure that it is specific and focused – if it is too vague or broad it risks a challenge of unconstitutionality.
It is important that protest rights are only limited in circumstances where they are likely to cause distress. There is no issue with placing a limit on rights as long as this is done in the public interest and that it is proportionate.
The protesters argue that legislating for exclusion zones means destroying their rights to expression and assembly and effectively silencing their viewpoint.
However, the rights are not destroyed; protesters remain free to express their views by other means. The exclusion zone would simply be a way to protect the rights of those accessing healthcare albeit while limiting protest rights.
In a different context, we already have a similar provision in section 147 of the Electoral Act, 1992 which prohibits loitering, congregating, displaying material for the purpose of promoting the interest of a political party or candidate, within 100 metres of a polling station.
The Irish Council for Civil Liberties is currently preparing proposals on this issue and the Lawyers for Choice group has already made proposals about potential avenues for the creation of exclusion zones, including the formation of bye-laws under section 199 of the Local Government Act 2001.
The Oireachtas Library and Research Service has also prepared a detailed note on practices in other jurisdictions. It would seem the Government has all the information it needs to make a decision on this.
The Minister is set to meet opposition parties next week to discuss this issue further but unless urgent action is taken it will be impossible to introduce reforms before the impending election.
Dr Laura Cahillane is a lecturer in Constitutional law at the University of Limerick.
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