Exclusion Zone in Ealing, London. Source: Ealing.Gov.UK

FOLLOWING A SERIES of anti-abortion protests since Ireland’s termination of pregnancy legislation came into effect on 1 January, the issue of exclusion zones around clinics and GP practices has become a pressing issue.

On 3 January, two days after abortion services became legal in the state, a group of pro-life protesters picketed a GP practice in Galway.

Then, earlier this month and for the second time this year, anti-abortion campaigners protested outside of Our Lady of Lourdes Hospital in Drogheda, Co Louth.

This week, Minister for Health Simon Harris said the government aims to have draft exclusion zone legislation prepared by this summer.

Harris’ comments followed reports in The Times (Ireland Edition) on Monday that a US anti-abortion group plans to target women accessing services by training people to intercept them before entering hospitals and GP clinics.

Amid these protests, issues around breaches of data and misleading websites have also made headlines.

In response to Harris’s comments about exclusion zone legislation, the Pro-Life Campaign reiterated its opposition to them and described the introduction of these zones as “a disproportionate response to any risks that may exist”.

“If individuals on either side of the debate were to engage in intimidating or harassing behaviour outside abortion facilities, existing legislation is robust enough to deal with any such situation,” the group has said.

On the back of recent protests, however, pro-choice groups renewed calls for exclusion zones earlier this week in an open letter to Harris.

These protests are “undoubtedly discouraging other doctors from signing up to provide abortion care,” the letter stated, ‘not to mention the effect on women seeking safe, legal abortions here’.

So, what are form are Ireland’s exclusion zones likely to take and what acts could they prohibit?

‘Pressing issue’

There will be plenty of detail to tease out when determining the legalese of Ireland’s exclusion zone legislation over the coming months.

A Department of Health spokesperson has said that “while it was originally intended to provide for such safe access in the Health (Regulation of Termination of Pregnancy) Bill 2018, a number of legal issues were identified during the drafting process”.

The Pro-Life Campaign has consistently said that these zones are a legal non-starter and will be near-impossible to enforce.

So, let’s take a look at how other countries have dealt with that issue, starting with the UK.

Ealing in London became the first council to implement a Public Spaces Protection Order (PSPO) for the area around a local Marie Stopes clinic in the UK last April.

Under this order, a safe zone around the clinic – outlined in red above – has been designated.

Prohibited activities within this safe zone include:

Protesting – engaging in any act of approval or disapproval or attempted act of approval or disapproval of abortion services. That includes graphic, verbal or written means, as well as prayer or counselling.

Interfering – or attempting to interfere – verbally or physically with a service user or members of staff.

Intimidating or harassing – or attempting to intimidate or harass – a service user or a member of staff.

Recording or photographing a service user or members of staff at the abortion clinic or displaying text or images relating directly or indirectly to abortion.

Playing or using amplified music, voice or audio recordings.

Within the zone, images or text referencing “abortion, baby, mum, foetus, soul, kill, hell and murder” are all prohibited.

Protesting is defined within the zone – which is enforced by police and council staff – as acts of approval or disapproval relating to abortion services including graphic, verbal or written means as well as offering prayers and counselling.

If found in breach of zone rules, a person is liable for a £100 fine or £1,000 fine if found guilty in court.

Marie Stopes clinic in Ealing, London. Source: GoogleMaps

Since the exclusion zone was enacted last April, it has proven successful, according to Rachael Clarke, a public affairs and advocacy manager at British Pregnancy Advisory Service (BPAS).

Other councils in the UK considering following Ealing’s lead include Lambeth, Richmond, and Southwark in London, and Portsmouth, Birmingham, Manchester and Leeds, the Guardian newspaper reported soon after Ealing’s zone came into effect.

In September, however, Home Secretary Sajid Javid rejected calls for exclusion zones at abortion clinics throughout England and Wales.

Clarke says that while protests in the UK have levelled off slightly in the past few months, the need for a national solution in the UK remains pressing.

So far, legislation has been piecemeal and largely localised, however. Instead of rules which place abortion services under the same category as – skateboarders loitering in a public place, for instance – Clark argues in favour of national legislation.

While Ealing bans certain acts (see above) within exclusion zones, British Columbia in Canada is perhaps even clearer on the purpose of its exclusion zones.

‘Intimidation and harassment’

Exclusion zone laws have been in place in British Columbia since 1996 under its Access to Abortion Services Act. Under legislation, exclusion zones extend 10 metres from a doctor’s practice and 50 metres from the boundary of a clinic or hospital.

There is also a 160-metre fixed buffer zone around an abortion provider or clinic worker’s home.

Under the legislation, restricted activities within exclusion zones include engaging in “sidewalk interference”, protesting, physically interfering with patients, clinic staff or doctors. There is also no graphic recording allowed within these zones.

In British Columbia, a person who breaks the exclusion zone is liable to pay a fine of at least $1,000 and up to $10,000 if convicted and a probation order can issued for up to two years.

So far, Ireland’s government has been light on detail as it works to figure out how it can implement exclusion zones here and what the rules will be. The aim is clear, though, according to a department spokesperson.

“The legislation is “to allow patients, service providers, healthcare staff and members of the public to enter premises without fear of intimidation or harassment”.

Like British Columbia, Ontario’s exclusion zones are similarly covered under its Safe Access to Abortion Services Act, 2017. Similar offences are covered under this act, which sets a 50-metre zone extending from the doors of a clinic. Hospitals and clinics are also allowed apply for an extension of up to 150 metres. In Canada, exclusion zones are enforced by police officers.

Anti-abortion protesters outside Our Lady of Lourdes Hospital, Drogheda in February. Source: Ciara Wilkinson

‘Freedom of expression’

The same applies across the border in the United States – a country with a long history of abortion protest – where, in 1994, the federal government enacted the Freedom of Access to Clinic Entrances (FACE) Act.

That act prohibits intentional property damage and the use of “force or threat of force or…physical obstruction” to “injure, intimidate or interfere with” someone entering a health care facility.

Certain states prohibit specific activities such as vandalism or obstruction at clinics, while others have enacted exclusion zones around clinics.

Under the FACE Act, a first offence is punishable by a fine and/or 12 months imprisonment, and subsequent offences are punishable by a fine and/or three years imprisonment.

According to the Guttmacher Institute, a family planning NGO established in 1968, 14 states in America and the District of Columbia prohibit certain specified actions aimed at abortion providers.

Three states – Colorado, Massachusetts, Montana - have established ‘bubble zones’ around a person within a specific distance of a clinic’s entrance.

In 2014, however, the US Supreme Court struck down the Massachusetts law that placed a 35-foot buffer zone around clinic entrances when it found that the law violated freedom of expression under the First Amendment of the Constitution.

Prohibited actions in the United States Source: Guttmacher.Org

The issue of freedom of speech has also arisen in Australia where Tasmania became the first state to introduce buffer zones of 150 metres in 2013, the breaking of which is punishable by up to 12 months in prison.

Safe access zones now operate in Tasmania, Victoria, the Australian Capital Territory, the Northern Territory and New South Wales.

In 1997, the implied freedom of political communication was first set out in Australian courts.

Since then, questions have been raised about restricting communication in relation to reproductive health services. Whether or not it’s a violation of the implied freedom of political communication contained in the Constitution depends on the type of political debate actually protected by that freedom.

Nonetheless, the High Court in Australia has ruled that limits can be placed on political communication.

“If it is determined that access zone laws place a burden on political communication, it could still be found that the purpose of providing safe access to reproductive health services is a legitimate purpose ‘compatible with the maintenance of the constitutionally prescribed system of representative and responsible government,” according to the Parliament of Victoria website.

Late last year, however, Tasmania and Victoria’s ‘safe access zone’ laws were challenged by anti-abortion groups.

Unlike in the United States, Australia’s Constitution only protects “political” communication. Australia’s High Court must now decided whether or not ‘safe zone’ legislation limits political communication and whether or not these zones are justified under law.

‘National legislation’

As Ireland’s legislators grapple with the legalese necessary to introduce Ireland’s exclusion zones, Clarke of BPAS says the government has two options.

Exclusion zones can either be implemented at the request of individual clinics, hospitals or GP practices. Or the government can introduce them nationally.

“I would opt for the latter because I think your problems will simply spread and cause additional problems for officers and courts to implement buffer zones one by one,” says Clarke.

To implement exclusion zones, the government will also need its own standard measurement – 150 metres, for instance – from practice or hospital gates as well as a list of prohibited activities.

In terms of successful implementation, “all we’re talking about is passing legislation and having it enforced like any other law,” says Clarke. “I would expect any legislation to be challenged in the courts but by and large, would expect the protesters to abide by the legislation as passed.”