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
Photo: Getty
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Germany's election isn't about who will win, but who gets to join Merkel in government

Even small changes in vote share could affect who rules with the chancellor's CDU.

The leaves are falling and the ballot boxes are being given a final polish. It should be peak Wahlkampf. (Trust us Germans to have a word for "campaign" which sounds like something that should be barked by a soldier in a black-and-white film.)

Yet, instead of "peak campaign", with just days to go before polling day, we have an almost deadly dull one. Europe’s largest nation is being gripped by apathy. Even the politicians seem to have given up. Four years ago the then Social Democratic (SPD) challenger for chancellor, Peer Steinbrück, was so desperate to grab attention that he posed on a magazine front cover pulling the middle finger.

Instead Chancellor Merkel’s strategy of depoliticising the economic and social challenges Germany faces, and being endorsed as the steady mother of the nation, seems to once again be bearing fruit. Her Social Democratic contender has simply not been able to cut through.

So much so that for most voters the differences in policy agenda between Merkel’s Christian Democrats (CDU/CSU) and her main challenger Martin Schulz’s SPD are hard to detect. Not least because the SPD has spent the past four years serving under Merkel as the junior partner in a so-called "grand coalition". It doesn’t make it easy to distinguish yourself when you have just spent the last four years agreeing in cabinet.

This is dangerous and careless in an age of economic and political insecurities where voter volatility has reached new heights, and the radical right-wing AfD is forecast to get a vote share in double figures – a tally that would make it the third strongest party in the Bundestag.

It’s business as usual for Merkel who has copied the playbook that so successfully delivered three victories: picking no fights and managing expectations. Why change a winning formula? She wants to carry on chasing the political legacy of her hero Helmut Kohl by securing a fourth term in office.

Once again the "safety first" strategy is paying off. Her CDU/CSU is on course with the polls showing a solid 17 per cent lead over Martin Schulz and the SPD.

Merkel may be cruising to victory, but Germany’s proportional electoral system means that she won’t be able to govern alone. Which means the most exciting question in the German election isn’t who is going to win, but with whom is Merkel going to form another government. All eyes are on the different combinations of parties that would provide the chancellor with a new majority.

As it stands, it is very likely that for the first time ever, the Bundestag will be host to six political parties. More dauntingly, it will also be the first time since the Second World War that members of the radical right-wing will be sat in the chamber. Arguably, this political setback may be seen as a failure of moderate forces to find the right political solutions for the refugee and financial crisis – the AfD is essentially the offspring of both – but it is also part of a wider populist surge in Europe and North America.

This fragmentation of the party system in Germany will make it a challenging task for CDU/CSU to form a coalition. However, with the return of the liberal, and pretty unashamedly neo-liberal FDP, Merkel can potentially revert to a traditional centre-right ally. This would please those in her party who have been sceptical of her socio-economic move to the left, and blame her for the rise of the right-wing populists.

A report by the University of Mannheim provides us with a useful, if firmly scholarly, political version of those dating compatibility quizzes we all like to do in idle lunch hours. It finds that a coalition between the CDU/CSU and the FDP would be a natural match. They would agree on 20 out of 38 of the main policy issues in German politics. 

On which issues would coalition partners agree/disagree?

Only the other traditional “bloc coalition” between the SPD and Greens, which lifted Gerhard Schröder into the chancellery in 1998, would do better, matched on 24 issues overall. The study matches preferences on key economic, social, domestic and foreign policy of all major political parties and maps potential areas of conflict for all realistic coalition options. But polls currently show that neither of the naturally fitting centre-right or centre-left blocs would have enough seats to make a coalition work.

Which leaves three possible scenarios. The most intriguing would be the "Jamaica coalition" of the CDU, FDP and Greens (so called because the three party colours are the same as the Jamaican flag). Such an option has never been tried before at the federal level but is currently in power in Schleswig-Holstein. Alternatively, Merkel could follow the example of Saxony-Anhalt and try governing with her own CDU/CSU alongside both the SPD and the Greens. However, the new study finds that a three-way pact would be more prone to conflict and harder to negotiate than any of the two-party options.

More than two parties in a coalition would be an interesting novelty at the federal level, but disagreement on individual policy areas is expected to be considerably greater. The so-called "traffic-light-coalition" of the SPD, the Greens and the FDP would agree on 11 topics, yet disagree on 20 issues. And on top of issue-specific conflicts it would be more difficult to bridge ideological differences between parties at the different ends of the left-right dimension, as such between the SPD and FDP.

In the end it will all depend on how the numbers play out on election day this Sunday. The fact is that even minor shifts in voting behaviour from the current poll predictions would make a major difference to the options for government formation.

So, what should you look out for on election night? I would suggest keeping an eye on the liberals. What happens to the FDP’s vote share is crucial for whether they can return to their role as coalition queenmaker, after failing to jump the 5 per cent hurdle in 2013 and ending up with no seats. If the business-friendly liberals cannot deliver a majority for Merkel, the ball will be firmly back in the SPD’s court.

Gerhard Schröder used to say that a chicken is fat at the end (it makes more sense in German).

But if Schulz’s campaign does not pick up momentum in the closing hours of the campaign, and the Social Democrats' vote share collapses to around 20 per cent, its leaders will find it difficult to justify another grand coalition to SPD members.

They will likely be once again asked to endorse any grand coalition with the traditional conservative enemy in a one-member-one-vote ballot. Many inside the party fear that another four years as junior partners to the strategically astute Merkel could be the end of the road for the Social Democrats.

Florian Ranft is a senior researcher and adviser at Policy Network