December 11, 2017

Enforced solitude via buffer zones: The latest attempt to change NSW abortion law

Absolutely free to be alone: What do the mooted buffer zone laws actually hope to accomplish? PHOTO: Jake Melara

Many readers of The Catholic Weekly will be aware that, earlier this year, the New South Wales’ parliament rejected a Bill which would have removed the few legislative provisions about abortion in this State. The defeated Bill would have permitted abortion without restrictions as to stage of gestation, as to who might perform the procedure and as to where it might be performed. Thanks to a concerted effort by many good people and to a petition which attracted over 60,000 signatures our State has been spared from that Bill. Readers may not know that another campaign to change New South Wales’ law in relation to abortion is underway. In the next few months the NSW parliament is likely to debate the Summary Offences Amendment (Safe Access to reproductive Health Clinics) Bill 2017 (NSW). It is important to know about this Bill and to encourage your parliamentarians to reject it.

What is the latest Bill supposed to do?

According to the Overview this Bill aims “to provide for safe access around reproductive health clinics at which abortions are provided so as to protect the safety and well-being of, and respect the privacy and dignity of, those assessing the services provided at those premises as well as those who need to access those premises in the course of their employment.”

Protecting safety, well-being, privacy and dignity are all very laudable aims but this Bill Is not needed to provide those protections. This Bill is really about snuffing out dissent and preventing prayer and the provision of information to vulnerable women. This Bill poses a significant interference with our freedom of religion and our freedom of speech. It could apply to a very large number of places, including unlicensed facilities where dangerous abortions are performed and it makes criminals out of concerned citizens providing counselling, prayer and the provision of help to women. If our State was thinking about passing such a law now would be a very unwise time to do so as there are relevant Court cases happening across the country about the legality of similar provisions and so any similar NSW law would be susceptible to Court challenge.

What happens in New South Wales today?

New South Wales is blessed with people who give up their own time to stand in public places outside abortion clinics praying or providing information to people accessing abortion clinics about alternative services and help available to those who are pregnant unexpectedly. Many women choose to go ahead with their pregnancy when they know more about the help available. There should be much more – not less – help for women in this distressing situation. The importance of this information being provided in close proximity to abortion clinics has been recognised by the United States’ Supreme Court in a case striking down similar legislation which had impeded the ability of women to be provided with such information on approach to clinics. Privately funded services are also provided in a range of places including Sara’s Place which is directly opposite an abortion clinic in Surry Hills and may find itself to be at risk if this Bill passes.

There are already adequate existing laws in New South Wales

It is currently unlawful in New South Wales to obstruct, harass, intimidate, threaten, cause fear, to behave in an offensive manner, to assemble unlawfully or to breach the peace. There are also laws which protect privacy.

Prof Michael Quinlan speaking at the Varieties of Diversity conference on religious liberty at the University of Notre Dame, Sydney, 18 August 2016. PHOTO: Robert Hiini

A large number of places – including private homes – could fall within the Bill

This Bill provides for the creation of zones, in which a wide range of behaviour is prohibited, within a radius of 150 metres around “reproductive health clinics” where abortions are provided. It does not specify any minimum level of provision of “medical services.” It could include a very large number of locations across the State. A “reproductive health clinic” is anywhere “medical services relating to aspects of human reproduction or maternal health are provided” other than pharmacies. The Bill defines “abortion” as “the administering of a drug, or the use of an instrument or any other means, with intend to procure a miscarriage.” Given this broad definition abortion clearly includes the provision of any surgical or medical abortion or any abortifacient drug. This means that it captures the morning after pill, RU486 and any oral or other forms of contraceptive which has an abortifacient effect. Whilst abortion clinics provide some or all of these services so to do many hospitals, suburban doctors’ surgeries and women’s health clinics. Even a private home in which a woman takes the morning after pill, RU486 or any other abortifacient drugs may be caught.

Premises need not be licenced and abortions need not be legal

The definition of “reproductive health clinic” does not require those premises to be appropriately licensed or that the services they provide are lawful. Whilst it might be argued that the Bill should be interpreted as applying as lawful “reproductive health clinics” and to lawful abortions, the need for proof of such legality was rejected in the only case in Australia on the operation of such legislation. Cleary citizens should not be faced with criminal prosecuting for informing a woman that the clinic they are using is unlicensed or conducted illegal or dangerous abortions.

A wide range of activities are prohibited by many people including relatives and friends

As well as prohibiting harassment, interference, intimidation, threatening, hindering, obstructing or impeding a person from entering or leaving a reproductive health clinic, the Bill seeks to criminalise any communication that relates to abortions which “is reasonably likely to cause distress or anxiety to a person” who is entering or leaving an abortion clinic. It exempts employees and anyone providing services to a reproductive health clinic from this restriction so those who wish to encourage women to have terminations are free to do so.

Whilst most people on their way to undergo a medical procedure – particularly surgery – may be distressed or anxious, women thinking about taking an abortifacient drug or having a surgical abortion, are particularly vulnerable to feelings of distress or anxiety. This legislation does not just put people who are volunteering their time to be outside abortion clinics to provide women with information or to pray for them at risk, it puts their mums, dads, husbands, partners and friends at risk. Everyone who says or does anything which causes distress or anxiety to anyone seeking to enter or leave anywhere where abortions (as broadly defined|) are provided (other than employees or service providers) is put at risk of criminal sanction by this Bill. It is an example of an attempt by the State to control what people say and do, to prevent prayer and to prevent good Christian people from helping others.

Risk of Court challenges

Religious freedom and freedom of speech are important rights. This Bill interferes with those rights. Unfortunately, NSW does not provide any general legislative protection to religious freedoms but Australians do enjoy an implied right of freedom of political communication. Where similar legislation has been passed it is subject to Court challenge. Earlier this year the High Court heard a case brought by Bob Brown challenging Tasmanian exclusion zones which seek to prevent environmental protest. Argument included reference to the decision of the United States Supreme Court which struck down similar legislation in Massachusetts. Judgment is yet to be delivered by the High Court in that case. This Bill which may be particularly susceptible to legal challenge as it prevents free political communication by many people in many places.

Conclusion

This is a very bad Bill indeed. Please let people know about it and encourage your parliamentarians to reject it.

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