Should anti-abortion groups be allowed to protest outside clinics?

What happens when rights collide

On 26 September, 40 Days for Life will begin “the largest and longest internationally coordinated pro-life mobilisation in history”.   The organisation is US-based, but operates worldwide. Ostensibly it exists to organise 40 days of Christian prayer and fasting, peaceful vigil and community outreach.  It just so happens this will be directly outside nine UK abortion providers including BPAS, Marie Stopes and NHS hospitals.

In our country it is clearly legal and permissible to organise a prayer vigil.  It is also permissible to seek advice on a termination and to have one carried out, within the terms of the law.  The question arises of what happens when the exercise of the first of these impinges on the second.

40 Days states that Christ taught us that some demons can only be driven out by prayer and fasting, and that these acts will bring an end to abortion. On its website it quotes from the Book of Chronicles about wicked people being listened to from heaven, and having their sins forgiven.  However, many would say it is less God’s intervention than the actions of its 500K+ members, which have led to the specific measurable results it boasts of.  These include having closed down 24 abortion centres, 69 workers having quit their jobs, and having “saved” 5,928 babies to date worldwide.

40 Days is not a simple prayer group: it is a highly organised body that agitates to obstruct and prevent individual women seeking legal terminations.  Participants book specific timeslots over its website at the locations targeted.  There’s a code of conduct for participants, none of which prohibits displaying distressing images, or photographing or filming attendees (all of which have happened previously at 40 Day vigils in the UK).  Last week members of the anti-abortion group, Abort67, were found not guilty of public order offences for displaying large images of aborted foetuses and approaching women entering a clinic in Brighton. One complainant had apparently been raped; another was attending following a miscarriage.

Most of us would doubtless subscribe broadly to the old line (misattributed to Voltaire) that we might disagree with someone’s view, but defend their right to say it.  This suggests an acceptance that freedom of speech should be an absolute, unlimited right.  In fact, almost everywhere the right is qualified, and for very good reason. In the US, the First Amendment is limited by a series of cases such as Schenck v US (the famous quote about free speech not protecting falsely shouting fire in a theatre and causing panic). In Europe, Article 10(2) of the ECHR specifically sets out permissible limitations on freedom of expression. We can, and should, argue about the parameters: draw the precise line where you will on the incitement of violence, hate speech, child pornography etc.  It is about balancing free speech with other values and rights society wishes to defend.

What is often missing, however, is an understanding that the context is sometimes as relevant as the words themselves. I personally have no problem with “Racist Tram Woman” expressing her views about immigration on a YouTube video. I’d probably listen for a bit, switch off and feel pity that someone has so much hatred.  No harm done: she is entitled to her views and I chose to listen. However, I do have an issue when the same words are directed at specific people on public transport. Their right not to feel threatened, to a quiet journey and to not be racially abused in front of their children conflicts with her right to express her views. The place and context are highly relevant. Similarly, shout “fire” at me in a soggy English field and I’d look round and not be alarmed, but in a crowded room I can well see why your right should be restricted. 

Fortunately most people realise that just because a right exists, doesn't mean it is must be exercised it in all contexts at all times.  I don’t need the law to dictate to me that I shouldn’t make cancer jokes to someone whose mother died of cancer. I inherently see the harm in that, even if I “have the right” to do so. Like most people in society, I try to exercise my rights mindful of others.

The problem comes when a minority of people use their speech to deliberately conflict with other people’s rights. Westboro Baptist Church is famous for picketing soldiers’ funerals with “God Hates Fags” signs. They believe God is punishing America by the deaths for its “gay tolerance”.  This led in August to President Obama’s signing a federal law that prohibited protests near military funerals. A Californian law was also signed this week that prevents protests within 300 feet of all funerals (Aids victims’ families have also been targeted).  

Free speech is the absolute cornerstone of a healthy, democratic society and restrictions on it must be limited and for good reason.  The above laws attempt to balance First Amendment rights with the rights of others to privacy and dignity, in the specific very upsetting context of a funeral. They permit the Westboro Baptists to express their views, but do not allow them to do so in a particular, limited place.

With this example in mind, we return to anti-abortion groups.  I do not agree with 40 Days that a woman may possess “evil demons that must be cast out”, but if they wish to “educate about abortion” on the internet, on street corners, in newspapers or in their churches, they should feel free. If they wish to change our abortion laws, they should march, lobby and bring the issue to politicians’ attention.  They could do this far more effectively in Westminster than outside an NHS hospital in Southampton.  If they truly believe that prayer and fasting will bring an end to abortion, they are welcome to organise vigils entirely free of food in any number of venues.  They presumably need not be outside clinics for an omnipresent God to hear them.

They are, of course, however highly disingenuous about their intentions.  They are groups that seek to bring about the end of abortion by influencing individuals in the difficult and sometimes deeply traumatic position of an unwanted pregnancy. They protest in front of clinics. It is hard to view their actions as not being direct intimidation. Their aims are quite transparent: to scare women off from having terminations and to close down services offering them.

We are faced again with a balancing act. There’s the wider social interest in protecting free speech, and the two sets of individual conflicting rights: the protestors who want to impose their personal values; and the rights of potentially vulnerable women to have privacy, access entirely legal services, and not feel threatened. A law that moves their vigils away from the doors of clinics undoubtedly involves a limited restriction on free speech. The protestors are still free to express their views, just not in a specific context, where it is likely to deliberately impinge on the rights of others. As such I’m clear where the balance rests for me, just as I’m clear that US-style anti-abortion tactics are here to stay in this country.

Pro-life protestor in the US. Credit: Getty Images
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Q&A: Would Brexit really move “the Jungle” to Dover?

The 2003 Le Touquet treaty was negotiated outside the EU.

What is David Cameron’s most recent claim about Britain leaving the EU?

The Prime Minister is claiming that Brexit could result in France ending the agreement by which British immigration officials carry out checks on those seeking to enter the UK in France.  

More specifically, Cameron thinks that a vote to leave the EU would give the French government an excuse to revoke the Le Touquet treaty of 2003, and that this would cause refugee camps akin to the Calais “Jungle” to spring up along the English south coast.

What’s the Le Touquet treaty?

In February 2003, Tony Blair went to the northern French resort of Le Touquet to try and persuade President Jacques Chirac to support British and American military action in Iraq. (He failed). 

Blair and Chirac hogged the headlines, but on the summit’s sidelines, Home Secretary David Blunkett and his French counterpart, an ambitious young politician named Nicolas Sarkozy, negotiated a treaty establishing juxtaposed controls at each country’s sea ports.

This agreement meant that British border police could set up and run immigration checkpoints at Calais – effectively moving the British border there from Dover. The treaty also enabled French border police to carry out checks in Dover.

British border police had already been operating at French Eurostar terminals since 2001, and manning the French entrance to the Eurotunnel since 1994.

What’s all this got to do with the EU?

Technically, nothing. The Le Touquet treaty is a bilateral agreement between the UK and France. Both countries happen to be member states of the EU, but the negotiations took place outside of the EU’s auspices.

That's why eurosceptics have reacted with such fury today. Arron Banks, the co-founder of Leave.EU, said the Prime Minister was “resorting to scaremongering”, while Ukip’s migration spokesperson, in a surprising role-reversal, said that Cameron’s argument was “based on fear, negativity, and a falsehood”.

Cameron’s claim appears to be that Brexit would represent such a profound shift in the UK’s relationship with other European states that it could offer France an excuse to end the agreement reached at Le Touquet. That is debatable, but any suggestion that the treaty would instantly become void in the event of a vote to leave is untrue.

Does France actually want to revoke the treaty?

Local politicians in Calais, and in particular the town’s mayor, have been arguing for months that the treaty should be abandoned. Le Monde has also criticised it. The current French Interior Minister, Bernard Cazeneuve, hinted today that he agreed, saying that a British vote to leave “will always result in countermeasures”.

On the BBC's Today programme this morning, Rob Whiteman, a former head of the UK Border Agency, said that it was “almost certain” that the treaty would end if the UK left the EU. He said that France has benefited less from the deal than it expected:

“I think at the time the French felt there would be an upside for them, in that if it was clear that people could not easily get to Britain it would stop Sangatte building up again. The camp was closed. But history has shown that not to be the case. The French authorities still have a huge amount of pressure on their side.”

That said, the French government receives money from the British to help police Calais and its camps, and various French officials have acknowledged that their ports would receive even more traffic if refugees and migrants believed that it was easier to travel  to the UK than before.

If the treaty ended, would “the Jungle” just move to Dover?

There’s little doubt that because of linguistic and familial ties, and perhaps the perception that the UK is more welcoming than France, many refugees and migrants would come to the UK as quickly as they could to claim asylum here.

Whiteman also said on Today that since the 2003 agreement, the annual number of asylum claims in the UK had declined from 80,000 to around 30,000. So the UK could expect a significant spike in claims if the treaty were to end.

But the British asylum process makes it unlikely that anything like “the Jungle” would spring up. Instead, those claiming asylum would be dispersed around the country or, if authorities are worried they would flee, held in an immigration detention centre.

Why is Cameron saying this now?

This looks suspiciously like one of the Tories' election strategist Lynton Crosby’s dead cats. That is, in an effort to distract his critics from the detail of the renegotiation, the PM has provoked a row about migrants and refugees. Cameron is clearly keen to move the debate on from the minutiae of different European agreements to bigger questions about security and terrorism. Though getting bogged down in competing interpretations of a treaty from 2003 may not be the best way to move onto that broader terrain.