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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The investigation into Australia’s “Abu Ghraib” could neglect wider abuses in the Northern Territory

Footage from a youth detention centre in the Northern Territory capital, Darwin, may not be enough for authorities to finally address endemic discrimination in the region.

It isn’t Abu Ghraib, but you could be forgiven for making the mistake when you first see the picture of the hooded 17-year-old.

In shocking footage made available to the public for the first time on Monday night, guards at a juvenile detention centre in Darwin are seen apparently systematically abusing the teenager Dylan Voller in a horrific timelapse.

The Australian investigative series Four Corners aired CCTV footage showing guards body-slamming him to the ground, punching him in the head, violently stripping him naked, and pinning him to the ground in a hog-tie position.

It continues, piling atrocity on atrocity from when he was a 13-year-old detainee in 2010, until he is shown shackled to the chair in the already infamous photo from footage this year. It is understood that Voller has long been the object of special animosity from the guards.

Voller was not the only child suffering in the Don Dale facility over the years; tapes also showed six boys being tear-gassed in August of 2014. They had reportedly been kept in tiny isolation cells for 23 hours a day, some of them for weeks, though laws limited such confinement to 72 hours.

At the time, the press was told that there had been a riot at the prison in its maximum security cells but the newly-released footage shows a markedly different set of events. Guards had left one of the boy’s doors unlocked, and he slipped out of his cell and broke a window. Just as he appeared to be surrendering, guards took the decision to gas all six boys in the wing, five of whom were in their cells.

This situation would be shocking enough, but attitude shown by the guards – who laughed when the would-be escapee soiled himself, calling him unprintable names – has sent the whole country into an uproar.

Australia has a complicated justice system; it is technically governed by the Crown and it’s made up of both states and Territories. Policies shift wildly between them, and the Northern Territories are governed by what Australians call The Intervention, a series of paternalistic policies meant to cut back on crime and violence in Indigenous communities.

In 2007, then Prime Minister John Howard announced that pornography and alcohol would be banned for Aboriginal peoples in the Northern Territories, and welfare spending restricted by item.

Though only 3 per cent of the general population, Indigenous people make up 28 per cent of Australia’s incarcerated adult population, and 54 per cent of jailed youth nationwide. In the Northern Territories that youth number nearly doubles to 97 per cent

John Elferidge, who until yesterday was the NT Minister for Corrections, said that the trouble was due to a “lack of training”.  Adam Giles, the NT’s Chief Minister, has sacked Elferidge and personally taken over the portfolio, saying he was kept in the dark about these events Giles has pledged to appoint a permanent Inspector General for the Territory.

Prime Minister Malcolm Turnbull has called for a Royal Commission into the allegations of abuse and torture by prison workers, to be completed by early next year.

This is in itself controversial, because Turnbull has taken the decision to limit the Commission’s scope to the Don Dale facility alone – in the interest of speed and efficiency, he says – instead of investigating the whole of the Territory. Given that some of these guards have since transferred to other facilities, many people are concerned that this narrow investigation will fail to remedy the horrific problems.

Dylan Voller remains in isolation in an adult prison. Peter O’Brien, solicitor for both Voller and another of the boys, has called for his immediate release, saying that three of the guards from Don Dale are still in charge of his welfare.

It is unclear how much of this abuse is actionable. In most of Australia the statute of limitations to allege abuse by staff is three-six years. In the Northern Territories, it is a mere 28 days.

Linda Tirado is an author and activist who works in America, Australia, and the UK.