Legal protection of access to abortion

Tasmania, Victoria, South Australia,[2] Australian Capital Territory, New South Wales, the Northern Territory and Queensland are the states and territories in Australia where buffer zones exist.[3] The Australian Capital Territory has a buffer zone of only 50 m that has to be approved by the ACT health minister.[4][5][6]

Tasmania was the first state or territory to enforce buffer zones. In 2013, the Tasmanian Parliament passed the Reproductive Health (Access to Terminations) Act which enforces 'access zones' of a radius of 150 metres from premises at which abortions are provided.[7] Behaviour prohibited within access zones includes: besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding a person; protests in relation to terminations that are able to be seen or heard by a person accessing a clinic; footpath interference; and intentionally recording a person accessing a clinic without their consent.[7] The laws, in particular, the recent regulations passed by the NSW parliament in June 2018, were opposed by "sidewalk counsellors" who are "known to stand outside clinics with the intention of changing the minds of women entering the clinics". [8]

In November 2015, Victoria became the second state to pass legislation to limit protests outside abortion clinics[9] and 150 metre buffer zones are now enforced. Prior to this, in 2005, the Australian Democrats proposed a law to create buffer zones around clinics in Victoria.[10] However, these attempts were unsuccessful as buffer zones were not included in Victoria's Public Health and Wellbeing Act.[11]

Several "buffer zone" laws have been enacted within Canada. Two of the country's provinces and territories have passed laws intended to protect medical facilities that provide induced abortion:

• British Columbia: 10 metre fixed buffer zone around a doctor's office, 50 metre fixed buffer zone around a hospital or clinic, and 160 metre fixed buffer zone around an abortion provider or clinic worker's home. The Access to Abortion Services Act, enacted in 1995, refers to this area as an "access zone". It prohibits protesting, sidewalk counseling, intimidation of or physical interference with abortion providers or their patients inside of this space. The provisions against protesting and sidewalk counselling were repealed on January 23, 1996, as violating the Charter of Rights and Freedoms, but were both restored in October of the same year.
• Ontario: 50 metre fixed buffer zone around clinics that perform abortions; variable buffer zones of up to 150 metres granted upon application to hospitals, pharmacies and other health facilities.[12] The Safe Access to Abortion Services Act, 2017 prohibits protesting, sidewalk counseling, intimidation, physical interference, and recording or photographing patients and employees within buffer zones.[13]

Access zone legislation has also been passed at the level of local government in Canada:

• Calgary, Alberta: fixed buffer zone which requires protesters to remain across the street from a clinic in Kensington. Established in 1991, the injunction also limits the number of pro-life demonstrators who carry signs, or pray. It was first challenged by Michael O'Malley of Campaign Life Coalition in 1997, and again in 2000, but a judge upheld it both times.[14][15][16]
• Toronto, Ontario: 500 feet fixed buffer zone around doctors' homes, 25 feet (7.6 m) fixed buffer zone around doctors' offices, 60 feet (18 m) fixed buffer zone around two clinics in the Cabbagetown and Scott districts, 30 feet (9.1 m) fixed buffer zone around another clinic, and 10-foot (3.0 m) floating buffer zone around patients and staff. The injunction was granted on August 30, 1994.[17]

The Choice on Termination of Pregnancy Act prohibits anyone from "preventing the lawful termination of a pregnancy" or "obstructing access to a facility for the termination of a pregnancy", imposing a penalty of up to ten years' imprisonment.[18]

At the federal level in the United States, the Freedom of Access to Clinic Entrances Act (FACE), makes it an offense to use intimidation or physical force – such as forming a blockade – in order to prevent a person from entering a facility which provides reproductive healthcare or a place of worship. The law also creates specific penalties for destroying, or causing damage to, either of these types of building.

California, New York, and Washington have each established their own version of FACE.[19] Other states have instituted several different kinds of measures designed to protect clinics, their employees, and patients:[20]

• 11 states make it illegal to obstruct the entrance to a clinic: California, Kansas, Maine, Maryland, Minnesota, Montana, Nevada, New York, North Carolina, Oregon and Washington.
• Six states prohibit making threats toward a clinic's staff or patients: California, Michigan, New York, North Carolina, Washington, and Wisconsin. Two states, Maine and Washington, also ban harassment by telephone.
• Four states ban property damage to a clinic: California, Oregon, New York, and Washington.
• One state, Maine, has enacted a noise regulation pertaining to activity outside of a clinic, and also made it an offense to intentionally release a substance with an unpleasant odor inside of it.
• One state, North Carolina, prohibits weapon possession during a demonstration outside of a clinic.

In the February 2003 case, Scheidler v. National Organization for Women, the Supreme Court of the United States ruled that pro-life activists could not be prosecuted under the Racketeer Influenced and Corrupt Organizations Act (RICO), a law drafted to counter organized crime, or the Hobbs Act, a law intended to address economic damages caused by extortion.[21] The Court reaffirmed this holding on February 28, 2006 in a unanimous decision, although only eight Justices participated in the ruling, because Samuel Alito had not yet been confirmed.

Supporters of such laws claim that these zones are necessary to ensure that women have access to abortion. They argue that a buffer zone helps to prevent blockading of a clinic's entrance, to protect the safety of patients and staff, and to ensure that clients do not feel intimidated, distressed, or harassed by the presence of pro-life activists.[1]

Some traditional free speech advocates such as the British Columbia Civil Liberties Association have cautiously sided in favour of narrowly defined "bubble zones" around abortion clinics on the basis that patients have a medical right to privacy when receiving confidential legal medical procedures that is compromised if protesters identify patients for the purpose of publicly shaming or intimidating them.[32][33]

The American Civil Liberties Union helped enact the Freedom of Access to Clinic Entrances Act in 1994, which guarantees pedestrian access to clinics, but does not restrict related speech activity. In Schenck v. Pro-Choice Network of Western New York, the ACLU filed briefs defending the constitutionality of a court order that prohibited defendants from protesting within 15 feet of clinic driveways and entrances in western New York.[34] The Supreme Court upheld the ACLU's position.

Some pro-choice activists have also argued that anyone convicted of anti-abortion violence should be permanently banned from protesting outside abortion clinics.[35] Professor Jacob M. Appel of New York University has argued that "much as we do not permit convicted pedophiles to teach kindergarten or convicted hijackers to board airplanes, common sense dictates that individuals who have been imprisoned for plotting violence against abortion clinics should never again be permitted anywhere near such facilities.".[35]

Those who oppose the creation of such legislation contend that "bubble zones", by limiting the ability to protest peacefully, represent an infringement upon their rights to freedom of expression and freedom of assembly.[21]