The British anti-abortion movement is growing increasingly similar to its American counterpart. Rising numbers of anti-abortion groups are direct offshoots of American organisations, funded by American dollars, or employ American protest and campaign tactics.[1] One such imported tactic is the holding of anti-abortion protests directly outside medical locations, an occurrence which, in recent years, has become more and more common across the UK. [2] The range of tactics employed by these protestors to deliberately harass and intimidate people accessing abortions is astounding: they film individuals entering and leaving facilities; display graphic (and medically-inaccurate) pictures of foetuses; provide unsolicited and often misleading ‘advice’; force baby dolls into the arms of people leaving facilities; splash ‘holy water’ on people passing by; and spit at medical staff who are simply trying to enter and leave their place of work.[3]
The immense disruption caused by these protests is well documented. Indeed, the UN Committee for the Elimination of All Forms of Discrimination Against Women found that these protests have been so disruptive in Northern Ireland that they are a major factor rendering abortion access ‘virtually impossible’.[4]
Anti-abortion protesters may claim that they are trying to ‘protect women’, but studies repeatedly show that abortions simply do not cause physical or mental harm.[5] On the contrary, there is growing evidence that it is anti-abortion protests and associated stigma which take the greatest toll on patients’ health. An Australian study has linked protests outside abortion clinics with higher incidence of self-harm and attempted suicide among teenage girls,[6] while Dr Ravi Gill, a trauma specialist and Chartered Health Psychologist, has explained that exposure to anti-abortion picketing is the greatest risk factor with regard to poor mental health for women following an abortion procedure.[7]
What is being done?
Following years of campaigning by medical professionals and activists, buffer zones (also known as ‘safe access zones’) will be introduced to provide protection for individuals seeking reproductive healthcare services in England and Wales from 31st October 2024.[8]
The introduction of safe access zones represents the culmination of a long battle. The relevant legislation (Section 9 of the Public Order Act 2023) passed through Parliament back in 2023, but it was not immediately ‘commenced’ by the Home Secretary, meaning that the buffer zones did not come into law. Adding insult to injury, the previous Conservative government launched a consultation on draft guidance to police which suggested that silent prayer by protesters within buffer zones should not be interfered with. These proposals directly contradicted the decision of Parliament, which explicitly rejected an exemption for silent prayer within the legislation. Labour MP Stella Creasey thus labelled the proposals, now abandoned under the new government, a ‘democratic outrage’.[9] The commencement of the legislation by Labour’s new government will now bring England and Wales into line with similar measures already in place in Scotland and Northern Ireland.
The legislation will introduce ‘safe access zones’, encompassing any area accessible or visible to the public within 150 meters of an abortion clinic or entrance to a building or site containing an abortion clinic.[10] It will be an offence for a person within a safe access zone to (intentionally or recklessly) act in a way which either ‘influences’ a person’s decision to use or provide abortion services, ‘obstructs or impedes’ a person in accessing or providing abortion services, or ‘causes harassment, alarm or distress’ to any person in connection with a decision to access or provide abortion services.[11] Violation of these provisions could result in an unlimited fine.[12]
Are buffer zones here to stay?
Despite the enormous effort which has gone into reaching this point, the fight is not over yet. Anti-abortion groups have already pledged that they will “find a way around the buffer zone” once introduced nationally,[13] and groups such as Christian Concern have previously launched legal challenges in areas which had implemented local buffer zones in advance of the national legislation.[14] As advocates for reproductive rights, we need to understand this potential legal challenge, and how likely it would be to succeed.
From the UK Courts…
The route to challenging Section 9 of the Public Order Act 2023, the legislation behind safe access zones, would be through the Human Rights Act 1998. Parties affected by the legislation could bring the case to UK Courts by arguing that the legislation interferes with their human rights to freedom of religion, freedom of expression, and freedom of assembly (protected by Articles 9, 10 and 11 of the European Convention of Human Rights). If the UK Courts agreed that the legislation was incompatible with these rights, they would be required to re-interpret the law to make it compatible, or issue a declaration of incompatibility to pressure the Government to change the law, or remove it entirely.[15]
Fortunately, it is unlikely that the UK Courts would agree with the arguments of anti-abortion protestors, because the UK Supreme Court has already been asked to rule on safe access zones. In 2022, the Court was asked to decide whether the legislation introducing safe access zones in Northern Ireland – essentially identical to that now coming into force in England and Wales – unlawfully interfered with anti-abortion protesters’ rights to freedom of religion, assembly, and expression.[16] The Supreme Court held that while the legislation may interfere with these rights, the interference was not unlawful since it satisfied what has become known in human rights law as the test of ‘proportionality’, meaning the interference was necessary in pursuit of an accepted ‘legitimate aim’.
For our purposes, the most relevant points made by the Court in the 200-paragraph long judgment can be summarised here:
Safe access zones constitute a limitation, not a restriction: it was important to the Court’s reasoning that safe access zones merely impose a limitation on the location where protests can take place. They do not prevent anti-abortion groups from protesting in other public places or engaging in other forms of campaigning.[17]
Violent and abusive conduct is never acceptable: protestors who have engaged in violent or abusive conduct cannot claim that their individual rights were violated, as such conduct is not protected by Articles 9, 10 and 11.[18]
Silent prayer can constitute harassment: the Court recognised that silent prayer may be perceived as a form of ‘confrontation and harassment’, and so it was proportionate for the legislation to prohibit silent prayer within safe access zones.[19]
People have a right to access abortion: the Court considered that the right to private life (protected by Article 8 of the European Convention on Human Rights) may include the ‘right to access healthcare in conditions of privacy and dignity’. Therefore, the state has a duty to ‘enable [pregnant people] to physically access the premises where the abortion services are lawfully provided, without being hindered or harmed’.[20] This is particularly important for the proportionality test, as it means that the rights of protestors are not being interfered with simply for being annoying or inconvenient, but due to a careful balancing of competing rights chosen by a democratically elected Parliament.
There is no need for perpetual re-assessment: the Court held that any individual conviction under the legislation would be proportionate.[21] This means that the Court can approve the legislation overall, and doesn’t need to wait and conduct a new proportionality assessment every single time a person is arrested or convicted under the legislation. Legally-speaking, this is one of the most significant points in the decision.
Fortunately, the similarity of the Northern Irish legislation to that being introduced in England and Wales makes it highly unlikely that any UK Court would reach a different conclusion here.
… to the European Court
If unsuccessful in the UK Courts, anti-abortion protestors could escalate and bring a claim before the European Court of Human Rights. A win here for the anti-abortion side would put international pressure on the UK Government to change the law. Fortunately, this is also highly unlikely to succeed.
There is no authoritative ruling from the European Court to rely on here, but we can make predictions based on a doctrine known as the ‘margin of appreciation’. Under this doctrine, the European Court generally defers to the judgments of national governments and courts on questions concerning sensitive issues and the balancing of rights, provided that they remain broadly within an acceptable margin of conduct. This is especially the case where there is no clear and consistent practice across different European states on an issue.
For this reason, it is unlikely that the European Court would overturn the assessment of the UK Supreme Court – there is simply no compelling reason to do so.
In addition to this, previous decisions of the European Court also suggest that challenges targeting specific aspects of the legislation would be unsuccessful. For example, protesters could try to argue that silent prayer should not be prohibited within safe access zones. But the European Court has previously recognised that national policy regarding the exercise of religious freedoms in public (and their interaction with other individuals’ rights) is a sensitive matter, and generally grants States a wide margin of appreciation to make their own assessment.[22] It is difficult to see how the European Court would feel compelled to reverse their normal course of action here – especially given the evidence cited in the UK Supreme Court that, despite outwardly appearing more passive, silent prayer is still distressing enough to interfere with the right to access abortion.
Protestors could also try to challenge the 150m zone, seeking to reduce its size and scope, if not remove it altogether. It is true that the European Court has recognised that location can be crucial to the effectiveness of a protest, and that mere limitations on location can violate the right of freedom of assembly.[23] However, it is unlikely that the restrictions imposed by safe access zones would meet this standard. The 150m zones do not nullify the protest or hide it from public view. The zones simply prevent protests from taking place in a location proven to be particularly harmful, and to the extent necessary to protect an acutely vulnerable audience.
Conclusion
Overall, it seems unlikely that either the UK or European Courts would uphold a challenge to safe access zones based on freedom of religion, expression, or assembly. If the above analysis proves correct, we can hope that the introduction of safe access zones marks a new wave of efforts to protect the fundamental right to reproductive healthcare in the UK – efforts which are needed now more than ever.
The enforcement of safe access zones from 31st October is likely to be followed by an increase in discourse surrounding their introduction, including anti-abortion groups attempting to weaponize human rights concepts and legalistic terms to undermine the law. Even if such arguments are legally unfounded, it is vital that people who care about protecting reproductive rights can familiarise themselves with the points laid out above so that they can debunk these unsound claims when they arise.
Author
Susie Lambert is a final-year law undergraduate at the University of Cambridge, where her areas of interest include human rights law, criminal law, and criminal procedure. She has previously worked with the Justice Accountability Coalition, and intends to practise as a human rights lawyer.
Bibliography
Legislation
Human Rights Act 1998
Public Order Act 2023
Cases
Latsi v Italy, Application no. 30814/06 (ECtHR (Grand Chamber), 18 February 2011)
Leyla Sahin v Turkey, Application no. 44774/98, (ECtHR (Grand Chamber), 10 November 2005)
Re Abortion Services (Safe Access Zones: Northern Ireland) Bill [2022] UKSC 32
SAS v France, Application no. 43835/11 (ECtHR (Grand Chamber), 1 July 2014)
Saska v Hungary, Application no. 58050/08 (ECtHR, 27 November 2012)
Secondary sources
ANSIRH, “The Turnaway Study”, University of California San Francisco, 2022. Available at: https://ansirh.org/research/ongoing/turnaway-study
Campbell, D. “Women still being harassed at abortion clinics despite buffer zone law”, The Guardian, 2023. Available at: https://www.theguardian.com/world/2023/oct/18/women-harassed-abortion-clinics-england-wales-buffer-zone-law
Das, S. “’Extreme’ US anti-abortion group ramps up lobbying in Westminster”, The Guardian, 2024. Available at: https://www.theguardian.com/world/2024/apr/06/extreme-us-anti-abortion-group-ramps-up-lobbying-in-westminster
Home Office, “Protection zones around abortion clinics in place by October”, 2024. Available at: https://www.gov.uk/government/news/protection-zones-around-abortion-clinics-in-place-by-october#:~:text=Safe%20access%20buffer%20zones%20will%20make%20it%20illegal%20for%20anyone,or%20working%20at%20these%20premises
Sifris, R. and Penovic, T. "Anti-abortion protest and the effectiveness of Victoria's safe access zones: an analysis" (2018) 44 Monash University Law Review 317
Savin, J. “The abortion ‘buffer zone’ battle: it’s been a year … so why is it still raging on?”, Cosmopolitan, 2024. Available at: https://www.cosmopolitan.com/uk/reports/a45997293/abortion-buffer-zones-uk/
Endnotes
[1] https://www.theguardian.com/world/2024/apr/06/extreme-us-anti-abortion-group-ramps-up-lobbying-in-westminster
[3] Re Abortion Services (Safe Access Zones: Northern Ireland) Bill [2022] UKSC 32, paragraphs [80], [83], and [84]
[4] CEDAW Report at 20, from Re Abortion Services at [81]
[6] R Sifris and T Penovic, "Anti-abortion protest and the effectiveness of Victoria's safe access zones: an analysis" (2018) 44 Monash University Law Review 317, 325-328
[8] https://www.gov.uk/government/news/protection-zones-around-abortion-clinics-in-place-by-october#:~:text=Safe%20access%20buffer%20zones%20will%20make%20it%20illegal%20for%20anyone,or%20working%20at%20these%20premises
[9] https://www.instagram.com/stellacreasy/p/C-uqk8iI5Vi/?locale=%E4%BB%A3%E5%8A%9E%E5%AE%89%E9%81%93%E5%B0%94%E6%95%99%E8%81%8C%E8%AF%81%E8%81%94%E7%B3%BB%7B%E5%A8%81%E4%BF%A1%2BTG%2F%E9%A3%9E%E6%9C%BA%3A%40buth2788%7DHHIpP%3F%3F%3F%3F%3F%3F%D1%A7%3F%3F%C6%BECgAe8&hl=en&img_index=2
[10] POA 2023, Section 9(2)
[11] POA 2023, Section 9(1)
[12] POA 2023, Section 9(4)
[14] https://www.theguardian.com/world/2023/oct/18/women-harassed-abortion-clinics-england-wales-buffer-zone-law
[15] HRA 1998, Sections 3 and 4
[16] Abortion Services (Safe Access Zones: Northern Ireland) Bill [2022] UKSC 32
[17] Ibid, [132]
[18] Ibid, [54] and [111]
[19] Ibid, [88]
[20] Ibid, [115]
[21] Ibid, [35]
[22] See Leyla Sahin v Turkey, Application no. 44774/98, (ECtHR (Grand Chamber), 10 November 2005), Latsi v Italy, Application no. 30814/06 (ECtHR (Grand Chamber), 18 February 2011), and SAS v France, Application no. 43835/11 (ECtHR (Grand Chamber), 1 July 2014)
[23] Saska v Hungary, Application no. 58050/08 (ECtHR, 27 November 2012)
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