One would imagine that the novelty of this change would be sufficiently great to overcome any early hiccups in the roll out of services. Not so. Any woman may now be free to have an abortion, but the fact that she may, at certain points, have to pass a protest by pro-life campaigners, has itself been sufficient to cause consternation.
The Together For Yes campaign was quickly out of the starting blocks to dub the protests “deplorable” and “despicable”, and to call on the Minister for Health to “urgently” create protest-free exclusion zones around abortion facilities. The call did not fall on deaf ears. Simon Harris is moving ahead swiftly with legislation to criminalise anti-abortion protest.
To put this in context, Britain passed abortion legislation in 1967, some 52 years ago, and to date only one exclusion zone has ever been put in place, at the Marie Stopes clinic in Ealing, West London, and that by the local council rather than central government. Abortion has been on the statute books in Ireland for just 13 days, and already steps are being taken to legislate for a blanket ban against protest.
Is it unreasonable to suggest that this is too soon to assess the need for such exclusion zones, or to explore alternatives to an outright ban? Protests may fizzle out. Evidence from other countries suggests that a small scale presence can be maintained outside abortion clinics for decades, but we might still ultimately decide that this is a small price to pay for living in a free society which allows both legal and safe abortion and legal and safe protest. Irish women going to England all these years certainly thought the protests there were worth enduring. Using the law so soon does feel like taking a sledgehammer to crack a nut.
The argument is that women should be free to access services to which they’re entitled without harassment or intimidation, and there’s no quarrel with that; but it would be hard to argue that things have already reached the stage in Ireland, within days, where the situation has got out of hand.
The protesters who gathered last week outside Our Lady of Lourdes hospital in Drogheda, Co Louth, after unconfirmed reports that an abortion was to be carried out there, did not even hand out leaflets, much less attempt to interfere with anyone going in and out.
There are already laws in place to deal with situations where legitimate protest breaches the public peace, or otherwise causes alarm or distress to targeted individuals. The 1994 Criminal Justice Act gives the gardai considerable powers to move on people who are causing a nuisance. In the UK last September, Home Secretary Sajid Javid ruled out extending exclusion zones around abortion clinics for that very reason, because the laws were already in place to deal with the situation. Why this sudden demand for urgent action here?
Because of their size, protests at GPs’ surgeries are certainly problematic, raising concerns about patient confidentiality; the rise in the number of GPs signing up to offer abortion pills since the New Year means that the opportunity for mischief by protesters is potentially growing by the week. There are also certain activities, such as the blocking of footpaths or entrances, which most reasonable people would regard as wrong.
But at large hospitals, people come and go constantly for all sorts of reasons, patients and visitors and staff alike, so it would be hard to argue, as the Taoiseach seemed to do last week, that women are being “impeded when they’re trying to access a medical service”. How is such an impediment to be defined?
Lawyers 4 Choice argue that the Criminal Justice Act doesn’t go far enough, and specifically want to ban behaviour which is “hurtful”, but that opens up a whole new can of worms. No doubt it doesn’t make a woman feel good to arrive at hospital for a termination to find people holding placards with pictures of dead babies, with slogans such as “Warning – Killing In Progress”; but protest cannot be criminalised because it hurts people’s feelings. Hurt feelings are an individual problem. The State’s responsibility is to ensure that you can access legal services, not to make you feel better about yourself at the time or afterwards.
Unless and until women are being specifically targeted – as was allegedly happening in Ealing – draconian new measures would surely be premature and disproportionate. More troubling still is what precedent it would set.
When former Tanaiste Joan Burton was trapped in her car in Jobstown in 2014 by angry water charges protesters, no one seriously suggested that the right to protest be removed, and that was directed against a specific individual, restricting her freedom of movement for some hours.
All sides agreed that Burton was “entitled to be there”, just as women seeking abortions are entitled to be where they are; but counsel for Paul Murphy TD, who was found not guilty on a charge of false imprisonment, told the court that protest is a “highly protected form of legitimate political and social activity protected in all modern democracies as an essential right”. Indeed, he pointed out: “The role of the gardai… includes the protection of the right to protest and those exercising that right.”
He quoted from a famous legal ruling in the UK, where non-violent protesters from the Women’s Peace Camp were excluded from land near a US nuclear base after the Ministry of Defence passed new bye laws to remove them on grounds of public order and safety.
The Court of Appeal found in the women’s favour, concluding: “Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome or at least perceived as such by others who are out of sympathy with them. Sometimes they are wrongheaded and misconceived.” That did not mean the right to protest could be ditched without “pressing social need, sufficient to justify an interference with freedom of expression”.
It’s worrying to see many of those who defended what happened in Jobstown now urge the full force of the State to be deployed against a different group of protesters, simply because they don’t agree with their cause.
The double standard is staggering. In 2013, the Irish Council for Civil Liberties (ICCL) co-signed a letter to the UN Human Rights Council which declared: “Although our individual domestic experiences stem from diverse political contexts and legal systems, we are united by our conviction that public protest is an essential component of any vibrant democracy.”
Yet the same ICCL came out this week to demand that the right to protest be removed “immediately” around abortion facilities.
Are rights now dependent on liking the persons seeking them?
Exclusion zones exist in parts of Australia, the US and Canada, where they have been deemed by the courts to represent a “reasonable impairment” on the constitutional right to protest. It may be that we come to the same conclusion, but two weeks is too soon to make such a huge judgement call.
Paul Murphy put it best when previously criticising moves by Charlie Flanagan, then Minister for Justice, to outlaw the filming of gardai on duty: “Using isolated incidents of abuse to push for legislation… represents a very cynical exploitation of that abuse in order to undermine civil liberties.” Are pro-lifers wrong to suspect the same thing is happening again?