Proposed Abortion Law changes in NSW

Two NSW Private Member’s Bills relating to abortion may be debated in the NSW Parliament in the next month. One in particular will completely remove any legal regulation of abortions in the State. It will also have serious consequences for religious freedom and free speech. It seems worthwhile to bring the implications of these proposals to notice.

On the general area of abortion rights and freedom of conscience, I highly recommend a paper by Professor Michael Quinlan, Dean of the University of Notre Dame Law School, Sydney, “When the State Requires Doctors to Act Against their Conscience: The Religious Freedom Implications of the Referral and the Direction Obligations of Health Practitioners in Victoria and New South Wales”, (2016) BYU L. Rev. 1237. Professor Quinlan also has a clear explanation of the law of abortion in NSW at the moment, on which the following relies.

1. Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016

This Bill was introduced into Parliament on 11 August, 2016, by Dr Mehreen Faruqi, Greens MLC. If enacted it would make sweeping changes to the law of abortion in NSW. It would allow the killing of an unborn child at any stage prior to birth. It would impose a serious burden on the religious freedom of medical practitioners who have a conscientious objection to abortion. It would also seriously impede rights of religious freedom and free speech of those who would wish to protest against abortion near abortion clinics.

(a) The current NSW law on abortion

The criminal law of NSW currently prohibits abortion, the act of killing an unborn baby. See the Crimes Act 1900 (NSW):

82 . . . Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

83 . . . Whosoever unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

84 . . . Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years.

However, the key to understanding the current law lies in the use of the word “unlawfully”. There is a plausible argument that when Parliament enacted the legislation:

 [T]he word “unlawful” was included as a shorthand means of referencing the common law exception to the proscriptions on abortion where the procedure was conducted “in good faith for the purposes only of preserving the life of the mother.” R v Bourne [1938] 1 K.B. 687, 691[1]

But in more recent years the authoritative interpretation of the provisions has been seen to be found in a direction given to the jury in the District Court decision of R v Wald (1971) 3 DCR (NSW) 25. There Judge Levine said:

“… for the operation to have been lawful in this case the accused must have had an honest belief on reasonable grounds that what they did was necessary to preserve the women involved from serious danger to their life, or physical or mental health, which the continuance of pregnancy would entail, not merely the normal dangers of pregnancy and childbirth; and that in the circumstances the danger of the operation was not out of proportion to the danger intended to be averted…. it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason  which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health .”[2]

In other words, if the mother’s life or physical or mental health are at stake, an abortion may be permitted, and apparently all the way up to birth. Note the implication of the ruling, however, that medical advice will be necessary if an offence under s 83 is alleged, of assisting in the process. But neither the ruling nor the legislation include any specific reference to the gestational age of the child. As Quinlan puts it:

Under the Wald test, the relevant danger might arise at any time during the pregnancy, and, if it did, abortion would apparently be permissible at any stage of pregnancy.[3]

There is an administrative document governing many medical facilities in NSW issued by the NSW Health Department, Pregnancy – Framework for Terminations in New South Wales Public Health Organisations (2014) which provides further guidance based on the gestational age of the baby, but there is no barrier in the criminal law of NSW to a termination occurring quite late in a pregnancy. (This may be contrasted with the UK, for example, where the law only allows abortions up to 24 weeks, and calls are being made for that limit to be lowered in light of medical technology allowing babies born at that age and younger to survive.)

(b) The impact of the 2016 Bill

(i) Abolition of legal prohibitions on abortion up to birth

The 2016 Bill, in Schedule 1, item 1.1, abolishes all statutory and common law prohibitions on abortion. In other words, it will no longer even be a possible criminal offence that someone has killed an unborn baby, right up to the moment of birth.

While the view is not always based on a religious commitment, the fact is that many believers take the view that an unborn child, from the moment of conception, is a human life worthy of the protection we afford to all humans. For Christians this can be based in the Biblical teaching that human beings are made “in the image of God” and so worthy of respect and protection (see Genesis 1:27, James 3:9), and references in the Bible to God’s care and concern for people while they are in their mother’s womb (see Jeremiah 1:5- “Before I formed you in the womb I knew you; before you came to birth I consecrated you”; Ps 139:13 “You created my inmost self, knit me together in my mother’s womb”.)

But the view that from conception there is a human life worthy of protection does not need to be taken on faith in the Biblical revelation. Increasingly the evidence of science, and the pictures produced by ultrasound, make this startlingly clear. Here’s a fairly typical quote (from this website):

Dr. Maureen Condic, Associate Professor of Neurobiology and Anatomy at the University of Utah School of Medicine, writes:

From the moment of sperm-egg fusion [the beginning of fertilization], a human zygote acts as a complete whole with all the parts of the zygote interacting in an orchestrated fashion to generate the structures and relationships required for the zygote to continue developing towards its mature state… The zygote acts immediately and decisively to initiate a program of development that will, if uninterrupted by accident, disease, or external intervention, proceed seamlessly through formation of the definitive body, birth, childhood adolescence, maturity, and aging, ending with death. This coordinated behavior is the very hallmark of an organism.

One argument in favour of abortion is that it is “just another medical procedure”. This is clearly incorrect. Of course it is a medical procedure, of course pregnancy has a huge impact on the body of the mother, but abortion is also the termination of a human life. Views will differ as to the circumstances in which it is justified to terminate one human life in  the interests of another person- but this simple fact, that a life is at stake, makes this a radically different kind of decision from the question whether one should have one’s tonsils removed.

But this legislation, if passed, will signal that the life of an unborn baby may be taken at any stage completely at the whim of the mother. (Or, as sometimes happen, because the mother is under pressure from the father or family members.) The current law in NSW at least requires a medical practitioner to consider the seriousness of the impact of the ongoing pregnancy on the mother. While prosecutions are rare, they are not unknown [2]. The Parliamentarians of NSW must surely remember the harms caused by unrestricted private abortion arrangements. To quote a colleague:

Whatever one’s views of when life begins Parliament has a duty to protect women from unscrupulous and dangerous abortion providers.  The R v Wald test requires abortion to be performed by a doctor.  Unsafe and unsanitary abortions ought to be a criminal offence – the history of this area demands it.  The current legislation performs at least some prophylactic effect by keeping abortion within the purview of doctors and enabling their prosecution.

This change would remove the modest protection provided by the current law altogether. It will be bad for women, and bad (of course) for unborn children.

(ii) Impact on conscientious objections

The Bill, in Schedule 1, item 1.3, also imposes a requirement on medical practitioners who have a conscientious objection to performing abortions, to first notify the patient “before giving any advice on abortion or other options” (so the patient can ignore the advice, presumably), and second to:

refer the person in a timely manner to another health practitioner, in the same profession, whom the health practitioner knows or reasonably believes does not have a conscientious objection to abortion, or to a local Women’s Health NSW (WHNSW) Centre.

This provision in effect replicates the controversial Victorian provision requiring “referral” (see the Abortion Law Reform Act 2008 (Vic) s 8.) It is unclear whether the Bill here requires a formal “letter of referral”, but many Roman Catholic (and other) medical practitioners regard this requirement as making them morally complicit in the subsequent abortion.[4] At the moment the NSW administrative guidance previously noted requires a practitioner to “direct” a patient to another practitioner who will perform the procedure. Even that requirement will be objectionable to many. The point here is that anyone who can use the Internet can easily find reputable abortion providers in Australia. There should be no need, once a medical practitioner has indicated they object to the procedure, for them to do any more.

(iii) Exclusion Zones around abortion clinics

Finally, the 2016 Bill replicates another bad trend in Australia, by purporting in Schedule 2 to set up, by way of amendment to the Summary Offences Act 1988, “exclusion zones” of 150 metres around abortion clinics. This will make it a criminal offence, not just to “harass, intimidate, interfere with, impede, obstruct or threaten” anyone entering or leaving a clinic, but even to “bother” such a person! (See proposed s 11AC.) Nor must anyone “communicate disapproval of abortion by any means” which can be observed by those using the clinic- see proposed s 11AD. Sub-section 11AD(2) tells us that:

This section prohibits disapproval by any means, including disapproval communicated by graphic, oral or written means or by any other means.

It seems fairly clear that this would include the simple act of quietly praying (as has been penalized in the ACT under similar laws.) (See also my previous post on a prosecution under Victorian obscenity law of someone displaying a picture of an aborted baby for some of these issues.) There is also a prohibition on taking or publishing images of persons at abortion clinics. Finally, in what seems like a desperate attempt to recognize freedom of political speech in a minimal way, we are told that:

11AG(1) This Division does not apply so as to prohibit conduct occurring in the forecourt of, or on the footpath or road outside, Parliament House in Macquarie Street, Sydney.

For previous comment on the “buffer zones” laws in other contexts, see my blog post, “Abortion “buffer zones”, free speech and religious freedom” (Nov 5, 2015), which links to an earlier comment on overseas law by Professor Quinlan. Since that post the Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic) (No 66 of 2015) has commenced operation, inserting new Part 9A into the Public Health and Wellbeing Act 2009 (Vic) as from 2 May 2016, with similar effect to the Tasmanian legislation noted in the blog post. (See also the Termination of Pregnancy Law Reform Act 2017 (Northern Territory), which received assent on 24 April 2017 but is yet to commence.)

There has been a successful prosecution under the Tasmanian law, which rejected a number of challenges to the law on free speech and religious freedom grounds.[5] In Police v Preston [2016] TASMC (27 July 2016, Mag C J Rheinberger) Mr Graham Preston and two other protestors were charged under s 9 of the Tasmanian law after having been found holding up signs protesting against abortions outside a clinic in Hobart. The Magistrate found that a challenge on the basis of the implied freedom of political communication failed, after making a detailed analysis of the law in accordance with the McCloy schema – see paras [32] and ff. She seemed to accept the defence submission that the prohibition was a “significant” burden on their freedom of speech on a political matter- see [38]. However, when considering the purpose of the legislation, she considered the whole issue of regulation of terminations of pregnancy under Tasmanian law, rather than (as arguably should have been the case) the specific issue of the “buffer zone”- see [41]. On this point her Honour concluded that the law was a proportionate response to a problem perceived by the legislature, and that it did not entirely remove the capacity of Mr Preston and the others to express their opposition to abortion- see eg [53].

There was also a challenge on the basis of the Tasmanian religious freedom provision in s 46 of the Constitution Act 1934 (Tas). The Magistrate sensibly accepted that the motives of the protestors were indeed their religious beliefs about the sanctity of unborn life- see eg [76]-[77]. But applying the “caveat” to s 46 concerning “public order”, her Honour held that the law was a reasonable law aimed at avoiding the risk of clashes between protestors and members of the public outside clinics, and also at protecting the privacy of those attending.

At para [84] her Honour said:

[84] …[T]he protest activity which is prohibited by s 9(2) of the Act clearly has the capacity to result in a disturbance to public order. Such conduct interferes with the privacy, indeed the medical privacy, of patients attending the premises at which terminations of pregnancies are conducted. The conduct has the potential to lead to some form of public disturbance…

The religious freedom defence was also rejected. It seems likely that laws of this sort will become more common, and striking the right balance of competing interests will be important (for example, is a zone of 150 metres really necessary?)

There has been an appeal of the Preston decision but no decision on the appeal has been handed down yet. Interestingly there is another case involving a different sort of “exclusion zone” currently on appeal to the High Court- a case involving former Greens leader Bob Brown and a conviction under a Tasmanian law forbidding “workplace protests”![6] This may, ironically, provide material for challenging the abortion buffer zone laws.

2. Summary Offences Amendment (Safe Access to Reproductive Health Clinics) Bill 2017

This Bill was introduced on 30 March 2017 by the Hon P G Sharpe, MLC (ALP). It is very similar to the proposals in Schedule 2 of the 2016 Bill, though it is slightly differently worded. It also goes a bit further in protection of free speech on political matters: it allows (see proposed s 11P):

the carrying out of any survey or opinion poll by or with the authority of a candidate, or the distribution of any handbill or leaflet by or with the authority of a candidate, during the course of a Commonwealth, State or local government election, referendum or plebiscite.

Summary

For anyone who takes the view that unborn human life, and women’s health, ought to be protected, these Bills are bad policy. The 2016 Bill dehumanizes unborn babies by making their interests of no account whatsoever. It opens up women seeking abortions to new risks. It also poses serious challenges to religious freedom of medical practitioners, some of whom may decide they can no longer work as such, if these are their legal obligations. Both the Bills also replicate the worst of the other Australian “buffer zone” laws criminalizing any attempt, however polite or respectful, to discuss the issue of abortion near abortion clinics. Like other such laws, there are serious questions as to whether these are not constitutionally invalid as impairing the freedom of political speech.

A number of Christian groups are supporting a petition expressing concern at these proposed laws. In a democratic society those who oppose the laws can make their views made known to members of Parliament.

[1] See M Quinlan, op cit, n 57.

[2] See the acceptance of this ruling in later decisions in K v Minister for Youth and Community Services (1982) 1 NSWLR 311, per Helsham J; CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, NSWCA as cited by Simpson J in R v Sood (Ruling No 3) [2006] NSWSC 762 at [30]. See also the final decision R v Sood [2006] NSWSC 1141 (31 October 2006) where, unusually, a doctor was found guilty of an offence against s 83 because the evidence established that she had not made even cursory inquiries as to the matters necessary to be considered under the Wald ruling.

[3] Op cit, at 1249.

[4] For discussion from a Roman Catholic perspective on how this makes a person complicit, see Quinlan, op cit, at 1266-1268.

[5] For a detailed paper on religious free speech issues, see https://works.bepress.com/neil_foster/106/ . The following comments come from pp 48-49 of that paper.

[6] See the appeal documents in Brown & Anor v. The State of Tasmania at http://www.hcourt.gov.au/cases/case_h3-2016 .

Abortion “buffer zones”, free speech and religious freedom

Governments around Australia are showing a sudden enthusiasm for introducing restricted “zones” around clinics offering abortions, in order to prevent protestors from operating in those areas. Tasmania has introduced such legislation, in the Reproductive Health (Access to Terminations) Act 2013 (Tas), s 9. An “access zone” under that law is 150 metres around a clinic, and within that area “prohibited behaviour” is defined as follows:

(a) in relation to a person, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person; or

(b) a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided; or

(c) footpath interference in relation to terminations; or

(d) intentionally recording, by any means, a person accessing or attempting to access premises at which terminations are provided without that person’s consent; or

(e) any other prescribed behaviour.

This is a very wide prohibition, covering not only violent or abusive behaviour (which of course would already be prohibited by the general law), but also making it unlawful to simply quietly hand out leaflets in a “protest” which can be said to be “in relation to” terminations, or indeed to wear a “protesting” T-shirt, however mild and inoffensive, while standing on the other side of the road from a clinic.

Similar legislation has also recently been enacted in the ACT, with the passage on 29 October 2015 through the Legislative Assembly of the Health (Patient Privacy) Amendment Act 2015 (ACT) (“HPPA”), although that legislation will apparently not commence for 6 months. In that case the “protected area” set out in s 86 of the amended Health Act 1993 is defined under s 86(2)(a) as 50 metres, which is at least somewhat more reasonable than the broad Tasmanian legislation. Under the HPPA amendments, however, the “prohibited behaviour” is even more extensively defined than in Tasmania:

prohibited behaviour, in a protected area around an approved medical facility, means any of the following:

(a) the harassment, hindering, intimidation, interference with, threatening or obstruction of a person, including by the capturing of visual data of the person, in the protected period that is intended to stop the person from—

(i)  entering the approved medical facility; or

(ii)  having or providing an abortion in the approved medical facility;

(b) an act that—

(i) can be seen or heard by anyone in the protected period; and

(ii) is intended to stop a person from—

(A) entering the approved medical facility; or

(B) having or providing an abortion in the approved medical facility; or

(c) a protest, by any means, in the protected period in relation to the provision of abortions in the approved medical facility.

Again, no violence or harassment in any verbal or physical sense need occur; anything that can be called a “protest”, or any “act” which is intended to discourage a person from having an abortion, is made unlawful.

Similar proposals have been mooted, though not yet enacted, in Victoria: see “Victoria to introduce buffer zones around abortion clinics“, SBS, 2 Sept 2015.

Of course the arguments in favour of protecting women who are visiting clinics to have an abortion, from undue harassment, are very powerful. Any such procedure is already incredibly stressful. If this were any other medical procedure, there would be very little reason to allow protests designed to discourage patients from attending, to take place outside medical offices . Protests could, of course, take place outside Parliament House (as proponents of these laws have urged.) This would all be persuasive if abortion were merely, as a recent editorial in the Medical Journal of Australia put it, just like “other medical procedures”. (See De Costa & Douglas, “Abortion Law in Australia: it’s time for national consistency and decriminalisation” (2 Nov 2015) 203/9 MJA 349-350, at 350).

But abortion is, with respect to those who think otherwise, not just another medical procedure. Many religious believers take the view that a human being, a person in the image of God, is present in the womb from the moment of conception. But agree with that view or not, there seems no doubt that, on purely objective biological grounds, what is present in the womb of a pregnant woman is a human life. A termination at the very least prevents that human life flourishing into a human being. However the operation is described, it is not “just another medical procedure”.

Those who wish to mount a quiet prayer vigil, or to offer counselling, outside abortion clinics do not do so, then, simply to “protest” the fact of the operation taking place, or because they believe the procedure is wrong and ought not to be carried out in the vast bulk of cases. They do so because they believe these things, but also because they believe that a human life is at stake in each procedure, and should be preserved.

Not all believers, even those who share the view that a full person is present from conception, take the view that vigils or “protests” outside abortion clinics are a wise or loving way to further the aim of stopping abortions. But some do. In general, our law places a strong value on the right of people to make public statements about their beliefs, where they are not directly attacking or threatening others. In addition, however, the law of Australia, and international law, protects religious freedom, and arguably not only the free speech rights of protestors, but also in many cases their religious freedom rights, are under threat from, or being impaired by, the “exclusion zone” laws.

I recently posted a guest blog by Professor Michael Quinlan on some of these issues, which summarised the approach in a recent US Supreme Court decision, McCullen et al v Coakley, Attorney General of Massachusetts et al 573 US (2014), which overturned as invalid a law forbidding protests within 35 feet of an abortion clinic. The US Supreme Court, of course, has a long history of reading the First Amendment “free speech” clause of the US Bill of Rights very broadly. I want to comment briefly here on how the laws mentioned above may be treated if challenged under Australian law.

Freedom of speech arguments

In light of the US decision, and others like it, the most obvious challenge to an Australian “protest-free zone” law would be under free speech principles. In this country, though, we do not have an explicit Constitutional free speech right. (It should be noted that in Victoria, where such a “protest-free zone” is now being proposed, there is a State-based “Charter of Rights” in the Charter of Human Rights and Responsibilities Act 2006 (Vic), section 15 of which protects “freedom of expression”. But the precise operation of this provision is still in some doubt- see, for example, the decision of the Full Court of the Federal Court in Kerrison v Melbourne City Council [2014] FCAFC 130 (3 October 2014)- and since the broader Federal right is applicable across the whole of Australia, that is what will be considered here. It is ironical, however, that two of the three jurisdictions which have implemented or indicated an intention to implement these “exclusion zones”, Victoria and the ACT, are the two jurisdictions in Australia which contain explicit human rights protection, including protection of freedom of expression.)

(In an earlier version of this blog post I omitted to mention that s 48 of the Victorian Charter explicitly says that nothing in the Charter affects “any law applicable to abortion”. While it seems likely that the original purpose of this provision was to avoid the Charter being used to make arguments about the “right to life” of an unborn child, it is possible that a “protest free zone” law relating to abortion clinics may be regarded as “applicable to abortion” and hence immune from challenge under the Charter. But this would not prevent the arguments made here about freedom of speech under Commonwealth law from being applicable. Thanks to Professor Quinlan for bringing this to my attention.)

While we do not have explicit Federal free speech protection in Australia, then, we do have an “implied freedom of political communication” which was discerned to be an implication of the Constitution by the High Court in a series of decisions culminating in Lange v Australian Broadcasting Corporation [1997] HCA 25;  (1997) 189 CLR 520. The most recent decision on this implied freedom is McCloy v New South Wales [2015] HCA 34 (7 October 2015), where a majority of the Court (French CJ, Kiefel, Bell and Keane JJ) spelled out the currently authoritative approach to dealing with these issues, in the following important (though lengthy) quote:

[2] …[T]he question whether an impugned law infringes the freedom requires application of the following propositions derived from previous decisions of this Court and particularly Lange v Australian Broadcasting Corporation[1] and Coleman v Power[2]:

A. The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may “exercise a free and informed choice as electors.”[3] It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.

B. The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:

(1) Does the law effectively burden the freedom in its terms, operation or effect?

If “no”, then the law does not exceed the implied limitation and the enquiry as to validity ends.

(2) If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government[4]? This question reflects what is referred to in these reasons as “compatibility testing”.

The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.

If the answer to question 2 is “no”, then the law exceeds the implied limitation and the enquiry as to validity ends.

(3) If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object[5]? This question involves what is referred to in these reasons as “proportionality testing” to determine whether the restriction which the provision imposes on the freedom is justified.

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision[6];

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be “no” and the measure will exceed the implied limitation on legislative power.

Clearly there are many decisions ahead which will need to clarify the precise operation of these tests. But we can start by asking the question whether a 150 metre “exclusion zone” around abortion clinics is compatible with this implied limitation on the legislative power of Australian Parliaments (such as the Parliament of Tasmania).

  1. Does the law burden “political speech”? It seems fairly clear that it does. The topic of abortion is certainly a public policy issue of great contention in Australia, and from time to time different political parties have had different views on the issues.
  2. It seems likely that one could say that the purpose of the law is a legitimate one, in the sense that it aims to protect vulnerable citizens (women seeking terminations) from a harm they may suffer (being offended or feeling harassed in exercising a choice to have a termination). Perhaps one might raise a serious question about whether the “means adopted” to achieve this end are compatible with the “ordinary political processes” in Australia- we do not usually forbid public demonstrations because of the content of the material being communicated by the demonstrators. But let us assume for the moment that a 150 metre exclusion zone might just pass the test of a legitimate “means” of achieving an end.
  3. In the “proportionality” test, however, it seems strongly arguable that a wide zone of this sort will fail the test. Yes, the means adopted may be “suitable” in that they will presumably lessen the distress of those seeking terminations. But are the means adopted “necessary” in the sense that there is “no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom”? In order to achieve the laudable aim of protecting women from violent and harassing protestors, is it necessary to also prohibit those who may simply stand quietly handing out leaflets or praying? And in particular, is there a proper balance “between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom”? A complete ban on certain speech content is usually regarded as the clearest example of an unjustified interference with free speech. In a previous decision dealing with public preaching, Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 (27 February 2013), the High Court made it clear that a ban on such activities which was based on the content of what was said (rather than on traffic considerations, for example) would be invalid.

It should be noted in this context, then, that this is not simply a “free speech” case. Many who wish to protest or counsel outside abortion clinics do so on the basis of deeply held religious beliefs.

Freedom of Religion

Arguably this is another feature of the protests being held outside abortion clinics which should inform the decision of a court as to the nature of the “rights” being interfered with. Of course it has to be said that in the States, the restriction on Commonwealth legislation impairing the “free exercise” of religion imposed by s 116 of the Constitution is not binding. But in the ACT, as a Territory not a State, where one “protest zone” law has just been passed, it seems fairly clear that s 116 will be applicable, and may have a serious impact on the validity of such a law. (For discussion of the former doubts that were expressed as to whether s 116 was binding on the Territories, as opposed to the States, see my paper on “Religious Freedom in Australia” at p 8.)

In addition, as noted previously, both Victoria and the ACT have “Charters of Rights”, which include protection for religious freedom. And in Tasmania, the little-known s 46 of that State’s Constitution Act 1934 also provides explicit protection for religious freedom.

All of these religious freedom rights are, of course, subject to balancing with other rights. But at the very least the weight of both free speech rights, and religious freedom rights, especially when combined in a case like this, ought to give Parliaments cause to think very carefully before enacting geographically wide, and substantively broad, limitations on the rights of those citizens who believe they are not only helping pregnant women, but also saving the lives of their children, by polite offers of counselling and assistance outside clinics.

Finally, it is worth noting that this view, that wide “protest free zones” like that in Tasmania are probably constitutionally invalid, is also shared by one of the most recent other academic commentaries on the issue. Eleanor Jones, in “Implementing Protest-Free Zones around Abortion Clinics in Australia” (2014) 36 Sydney Law Review 169-184, expresses clear doubts about the validity of such laws, while apparently supporting their policy. She says:

Protests outside abortion clinics are poised to become the next example of political communication that is objectionable to a majority of Australians, but nonetheless protected from regulation by the freedom of political communication (at 170)…

the prospective constitutionality of the RHATA is uncertain (at 174)…

It is therefore unlikely that the provisions of the RHATA would survive in their entirety (at 182)…

there is little evidence to suggest that these protests are so frequent and unruly that access to abortion clinics is currently being disrupted to the extent that so wide an exclusion zone is necessary. (at 183)

It is true that Jones also suggests that a much narrower exclusion zone might be constitutionally valid (at one point she notes that the US Supreme Court has upheld as legitimate an exclusion zone of 4.5 metres – see p 171 n 16). But even this suggestion is made tentatively. There is real doubt here.

This makes the comments in this editorial from the Medical Journal of Australia, then, very misleading. In that opinion piece, noted previously, the authors, who are aiming to describe the law of Australia on the matter, state very clearly:

Constitutional law scholars generally agree that the Tasmanian provision can withstand any High Court challenge.

Their authority for this proposition? The article by Jones. I trust that the quotes provided above are enough to show that the claim that is made here is, to be frank, quite wrong. Jones casts serious doubts on the validity of the Tasmanian provision. The authors of the MJA piece also mis-state the operation of the test dealing with the implied freedom of political speech, referring to a “two-step” test, whereas the Jones article (written of course prior to McCloy but still valid on this point) notes that it is a “three stage test” (at 174).

Given these errors, it is perhaps not surprising to find others in that article, We are told that access of women to clinics is “often hindered by verbal and sometimes physical harassment”. Yet Jones, as noted above, suggests that this is not really a major problem in Australia. The editorial then asserts that attempts to curtail protests have failed because of the implied rights to freedom of political communication. No evidence is presented that this doctrine has so far been invoked in these cases, but if it had the so-called “solution” to the problem provided by the Tasmanian legislation would be useless, given that the Tasmanian Parliament, like all in Australia, are obliged to recognise this right.

In short, the enthusiasm expressed by the authors of the MJA editorial for the Tasmanian laws (an enthusiasm which, it seems fairly clear, would not be shared by all medical practitioners in Australia) is misplaced. It is to be hoped that Australian Parliaments pay much more careful attention in future to the rights of citizens who are wanting to exercise the freedoms of speech and religion our community regards as vital.

The Legality of Exclusion Zones around abortion clinics in the US and Australia- Guest blog

US flags

I am very pleased to be able to welcome my first “guest blogger” in the person of Professor Michael Quinlan, Dean of the University of Notre Dame’s Sydney-based Law School. Michael’s note on this important issue, which is now becoming more relevant in Australia in recent years, was originally published in “On the Case”, a series of notes on legal issues produced by the UND Sydney Law School. He has kindly agreed to me re-publishing it here.

Issue 9 of On the Case discussed the recent decision of the Supreme Court of the United States (the US Supreme Court) in relation to same sex marriage in Obergefell [1] and the implications for Australia of that decision.[2] The Obergefell decision received substantial media attention in Australia [3] although the legal position in the two countries is quite different. [4]

In this edition of On the Case Professor Michael Quinlan, the Dean of The University of Notre Dame Australia, School of Law, Sydney, discusses another recent decision of the US Supreme Court, McCullen. [5] In this decision the US Supreme Court considered the legality of exclusion zones around abortion clinics. Whilst this decision did not attract media attention in Australia, as Tasmania introduced exclusion zones around abortion clinics last year [6] and other Australian States and Territories are considering doing so, [7] the approach of the US Supreme Court to this issue warrants attention.

In Brief

This decision considered the validity of a Massachusetts law which made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of any place where abortions are performed or offered other than a hospital. [8] The US Supreme Court found that law to be unconstitutional.

Background

The Massachusetts law was introduced in 2007 [9] following clashes between advocates for and opponents of abortion outside abortion clinics.

The Facts

This case was brought by a number of people who engaged in “sidewalk counselling” of women approaching abortion clinics (the Counsellors). Whilst it might be appropriate to describe some people who stand outside Massachusetts abortion clinics as protestors because they use signs or chants or face-to-face confrontation to express their religious, moral or conscientious objection to abortion, this was not the approach of the Counsellors.[10] The Counsellors provided women with information about alternatives to abortion and help in taking any of those alternatives if they wished to do so. In order to provide this counselling, the Counsellors considered that it was essential for them to maintain a caring demeanour, a calm tone and direct eye contact with women entering abortion clinics.[11] The Counsellors claimed that because the exclusion zone included the public footpaths adjacent to the clinics they were not able to approach the clinics’ entrances and driveways and that this frustrated their counselling efforts.[12]

The Counsellors argued that standing outside the exclusion zone meant that they could not distinguish patients from other passers-by and that this made it difficult for them to distribute literature to arriving patients. It also meant that where they had engaged a patient in conversation they had to stop their discussions at the border of the exclusion zone. This resulted in the Counsellors often having to raise their voices to be heard by patients within the exclusion zone which was completely contrary to the message of compassion that they wished to convey. [13] The evidence was that the result of the imposition of the exclusion zone was that the Counsellors had been far less successful in informing women of alternatives to abortion and that, as a result, far fewer women had chosen those alternatives as a result of their counselling. [14] The Counsellors argued that the Massachusetts law violated the First [15] and Fourteenth [16] Amendments to the Constitution of the United States of America (the US Constitution).

The Decision

While there were three separate judgments, the Court unanimously found that the Massachusetts law violated the First Amendment.[17] The Court referred to previous decisions which had found that the First Amendment considered that public ways and footpaths were entitled to “First Amendment protection” because they had historically been important sites for debate and discussion and leafletting.[18] The Court noted that the guiding principle of the First Amendment was that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” and that that principle applied “with full force” to footpaths and public streets.[19] This meant that the government could not prevent or prefer speech because of its content.[20] This approach did not prevent the government from imposing reasonable restrictions “on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest and that they leave open ample alternative channels for communication of the information.” [21] In other words, so long as the restrictions on free speech were not content based, reasonable restrictions might not be unconstitutional. If the laws were not content based they could be constitutional but in that case, only if they did not “burden substantially more speech than is necessary to further the government’s legitimate interests.” [22] On the other hand, if the restrictions on free speech were not content neutral they could only be constitutionally valid if they could withstand “strict scrutiny.” This is a much more rigid test and requires such laws to use the “least restrictive means of achieving a compelling state interest.” [23]

The Counsellors argued that the Massachusetts law did not fit within the permissible restrictions on free speech because it went beyond what was necessary for the legitimate purposes of the State, and because it discriminated against anti-abortion speech. They argued that this discrimination was evident because the law established an exclusion zone only around abortion clinics and so would clearly primarily affect speech concerning abortion. [24] They also argued that the Massachusetts law was not content neutral because the law exempted the employees and agents of abortion clinics. They argued that, as a consequence, speech in favour of abortion could and would occur within the exclusion zone where the Counsellors were prohibited from speaking. [25]

The majority first considered whether the Massachusetts law was content based and concluded that it was not. They noted that the law did not refer to the content of any speech and so was not directed to preventing anti-abortion speech. The majority also found that the State had a legitimate interest in ensuring public safety, preventing large crowds gathering, impeding access and obstructing footpaths and that these problems would arise no matter what was said within close proximity to an abortion clinic. [26] The majority rejected the Counsellors’ argument that the Massachusetts law discriminated against free speech based on its content by providing for an exception for employees and agents of clinics who were permitted to pass in and out of the exclusion zone. This was because, they found that, the exception for employees and agents was necessary and there was no evidence that any speech in favour of abortion took place inside the exclusion zones was authorised by clinics. [27] As the majority found that the Massachusetts law was not content based it found that it was not necessary for it to be subject to strict scrutiny. [28]

Having found that the Massachusetts law was not content based and not subject to strict scrutiny [29] the majority then considered whether the law burdened substantially more speech than was necessary to further the government’s legitimate interests. [30] While the majority accepted that the State had a legitimate interest in attempting to prevent the deliberate obstruction of clinic entrances and the harassment and intimidation of patients and clinic staff, the majority noted that these concerns were addressed in other unchallenged provisions of the law [31] in addition to other criminal laws against assault, breach of the peace, trespass and vandalism. [32] The result for the majority was that the Massachusetts law did burden substantially more speech than was necessary to further the government’s legitimate interests. This was because by excluding all non-exempt individuals [33] from the buffer zones, the law unnecessarily “[swept] in innocent individuals and their speech.” [34] The law made it more difficult for people, like the Councillors, to engage in conversations at a normal proximity and volume or to hand out leaflets. The majority thus considered that the Massachusetts law unconstitutionally impeded free speech and was invalid. Targeted injunctive relief focussed on precise individuals and precise conduct at a particular clinic experiencing safety and access problems was preferable and would not breach the US Constitution. [35]

While Justices Scalia [36] and Alito agreed with the majority that the Massachusetts law offended the First Amendment they were critical of the majority’s approach because, in their view, the Massachusetts law was specifically targeted at supressing anti-abortion speech and should have been subject to the strict scrutiny test. [37] In Justice Scalia’s opinion the Massachusetts law was content based because it imposed a blanket prohibition on speech in an area where anti-abortion messages would be most effective. [38] He rejected the notion that, in these circumstances, the purpose of the legislation could properly be determined by reference to its stated objects. [39] Justice Scalia was also scathing of the majority’s approach to the exempt persons provision of the law. He had no doubt that abortion clinic employees or agents would often speak in favour of abortion and seek to counter the speech of people, like the Councillors, within the exclusion zone and that they would do so within the scope of their employment. [40] Justice Scalia found that:

Protecting people from speech that they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks.[41]

The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to “protect” prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks. The provision is thus unconstitutional root and branch and cannot be saved, as the majority suggests, by limiting its application to the single facility that has experienced the safety and access problems to which it is quite obviously not addressed. I concur only in the judgment that the statute is unconstitutional under the First Amendment.

Similarly Justice Alito found that the effect of the law was to silence the Councillors and other critics of the relevant abortion clinic while the clinic remained able to authorise its employee and agents to speak in favour of the clinic and its work. 42 He described this as “blatant view point discrimination.” [43] He also found that the other features of the law meant that even if the exemption for employees and agents were excised it would not be a content neutral law. [44]

Implications of this Case

The Australian Constitution is very different to the US Constitution so that the legal issues considered in McCullen do not arise in the same way in Australia. That is because Australia does not afford freedom of speech the same level of Constitutional protection and has no equivalent to the First Amendment. The approach taken by the US Supreme Court in this case is, however, of particular interest in Australia in light of the exclusion zone created by The Reproductive (Acceptance to Terminations) Act 2014 (Tasmania) and the proposed exclusion zones under consideration in other Australian states and Territories [45] as it raises for consideration whether it is necessary and appropriate to interfere with freedom of speech around abortion clinics at all. If policy determines that State government interference with free speech is warranted near abortion clinics, this case raises the question of the appropriate breadth and scope of such interference.

During the Tasmanian State elections in March last year a lone protestor, 58-year-old Graham Preston, was arrested after holding two placards quoting from the Universal Declaration of Human Rights and handing out leaflets while standing within the mandated exclusion zone outside an abortion clinic in central Hobart. [46] The Tasmanian Director of Public Prosecutions dropped the charges in September last year and was ordered to pay costs. Mr Preston was not re-arrested when he protested in the same way after leaving court. [47] However Mr Preston and a number of other individuals have subsequently been arrested for other alleged violations of the exclusion zone. [48]

In Australia, the State and Federal Constitutions tend to be more concerned about issues relating to trade and good governance than human rights. Section 46 of the Tasmanian Constitution is an exception. It guarantees freedom of conscience and freedom of religion and may allow protestors to raise such issues in their defence in future prosecutions. The enforcement of such exclusion zones in Australia, particularly during election campaigns, may also raise freedom of political communication issues under ss 7 and 24 of the Commonwealth Constitution. [49]


Obergefell et al v Hodges, Director, Ohio Department of Health et al 576 US ___(2015) (Obergefell)
2 Michael Quinlan, “The Supreme Court of the United States decides that all states of the United States must permit and recognise same sex marriage” On the Case: Issue 9 The University of Notre Dame Australia http://www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-9
3 See e.g. Michael Koziol, “Love Wins: World celebrates US Supreme Court decision legalising gay marriage” Sydney Morning Herald June 27, 2015: http://www.smh.com.au/world/lovewins-world-celebrates-us-supreme-court-decision-legalising-gay-marriage-20150626-ghz4tx.html#ixzz3fvplgpCm
4 Quinlan n2 above
McCullen et al v Coakley, Attorney General of Massachusetts et al 573 US (2014) (McCullum).
The Reproductive (Acceptance to Terminations) Act 2014 (Tasmania) s9(2) creates an exclusion zone with a 150 metre radius of premises where terminations are conducted .Within this zone people are prohibited from protesting and other similar behaviour.in relation to terminations.
7 e.g in NSW the Greens MLC, Mehreen Faruqi, has introduced into the NSW Legislative Council the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2015 which, among other things, seeks to “establish exclusion zones in order to prohibit certain behaviour near premises at which abortions are performed.” The Sex Party has introduced the Public Health and Wellbeing Amendment (Safe Access) Bill 2015 which seeks to establish exclusion zones in Victoria around abortion clinics and other locations providing advice, mediation and treatment in relation to reproductive health. In early September 2015 the Victorian government announced that it would support this legislation. The draft legislation makes it illegal to “interfere with” a footpath within 150 metres of an abortion clinic and to communicate in a manner which may be seen or heard by a person seeking to access abortion clinics or other reproductive health services. In this way conversations, prayers, providing leaflets or advertising which can be seen or heard from a clinic will be criminalised. See Monica Doumit “It’s OK to pray, but not in Victoria” The Catholic Weekly Vol 73 No 4792 13 September 2015, 11 and Morgan Begg “150 metre protest exclusion zones coming to Victoria” 1 September, 2015 Freedom of speech http://freedomwatch.ipa.org.au/tag/exclusion-zones/. Similar exclusion zones have also been proposed in the Australian Capital Territory. See Morgan Begg, “Exclusion zone proposals show fundamental misunderstanding of freedom” 2 April 2015 Freedom of speech http://freedomwatch.ipa.org.au/tag/exclusion-zones/
Reproductive Health Care Facilities Act s120E1/2(a), (b) Mass.Gen Laws.
9 Amending an Act passed in 2000 10 McCullen Roberts CJ 4
11 Ibid 5
12 Ibid 19-20
13 Ibid 20
14 Eg one Counsellor’s uncontradicted evidence was that prior to 2007 about 100 women had chosen alternatives to abortion as a consequence of her counselling outside Massachusetts abortion clinics but none had done so since: ibid 20
15 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
16 Section 1.”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
17 Chief Justice Roberts delivered the Court’s opinion and Ginsburg, Breyer, Sotomayor and Kagan JJ joined in that opinion.This opinion will be referred to as “the majority opinion.” Justice Scalia filed an opinion concurring with the judgment of Robert CJ and Kennedy and Thomas JJ joined in Scalia J’s decision. Justice Alito filed a separate opinion concurring with the judgment of the Court.
18 McCullen Roberts CJ 8 referencing United States v Grace 461 US 171, 180 (1983) and 21; Scalia J 5
19 McCullen Roberts CJ 9 referencing Police Dept of Chicago v Mosley 408 US 92, 95 (1972).
20 McCullen Roberts CJ 9 referencing Erznoznik v Jacksonville 422 US 205,209 (1975).
21 McCullen Roberts CJ 9 referencing Ward v Rock Against Racism 491 US 781, 791 (1989) (Ward) (quoting Clark Community for Creative Non-Violence 468 US 288, 293 (1984).1975)
22 McCullen Roberts CJ 19 referencing Ward 799
23 McCullen Roberts CJ 10 referencing United States v Playboy Entertainment Group Inc 529 US 803, 813 (2000)
24 Brief for Petitioners 23 referenced in McCullen Roberts CJ 11
25 McCullen Roberts CJ 15
26 Ibid 13
27 ibid 17
28 Ibid 18
29 Ibid 18
30 See n22 above
31 McCullen Roberts CJ 23 referring to ch 266 s120E1/2 ( e) Mass.Gen Laws which creates a criminal offence for “[a]ny [person who knowingly obstructs, detains, hinders, impedes or blocks another person’s entry to or exit from a reproductive health care facility.”
32 McCullen Roberts CJ 25
33 This refers to exemptions for clinic workers etc
34 McCullen Roberts CJ 25
35 ibid
36 With whom Kennedy and Thomas JJ concurred
37 McCullen Scalia J 7,13 and Alito J 1-3
38 McCullen Scalia J 5
39 Ibid 6-7
40 Ibid 10-13
41 ibid 9
42 McCullen Alito J 2
43 Ibid 2
44 Ibid 3
45 See n6 above
46 “Brisbane man charged over anti-abortion protest in Hobart” http://www.abc.net.au/news/2014-03-04/brisbane-man-charged-over-anti-abortion-protest-in-hobart/5297756?section=qld
47 “Hobart abortion clinic protest charges dropped” http://www.abc.net.au/news/2014-09-04/police-drop-charges-over-abortion-clinic-protest/5719298
48 Edith Bevan, “Anti-abortion campaigner Graeme Preston arrested again for protesting outside clinic” http://www.abc.net.au/news/2015-04-14/anti-abortion-campaigner-graeme-preston-arrested/6392214
49 See Nationwide New Pty Ltd v Wills (1992)177 CLR 1 per Deane and Toohey [69]-[74] and Australian Capital Television Pty Ltd v Commonwealth.Electoral Commission (2004) 220 CLR 181 per Mason CJ 137-146, Dean and Toohey JJ 217, McHugh J 227-233.