Abortion and safe access zones

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Image by mikecogh, used under licence CC BY-SA 2.0

In September 2021, Clare Bailey MLA introduced the Abortion Services (Safe Access Zones) Bill to the Assembly. The Bill passed Second Stage on 12 October 2021 and would require the Department of Health to create safe access zones around clinics providing lawful abortions, or related information, advice or counselling.

This blog post considers safe access zones in more detail. What exactly is a safe access zone? Where do they exist across the world? What human rights do they engage, and how can proportionate balances be struck between competing human rights in this context?

What is a safe access zone?

A safe access zone is an area on or around premises offering abortion, or related premises. Within the zone, most forms of assembly, protest and recording are banned. Safe access zones are sometimes also referred to as ‘bubble zones’ or ‘buffer zones’.

The precise detail of what is banned varies from place to place. In general, it is not permitted to:

  • Impede or obstruct access to the premises in question
  • Protest against abortion
  • Directly counsel, argue with or harass people who may be attempting to enter the premises
  • Record anyone entering or exiting the premises

Most safe access zones are fixed zones, covering a specific area around the footprint of the clinic. Some zones, however, are referred to as ‘floating’ zones. In these zones, once a person gets within a certain distance of premises, they cannot be approached or engaged with. Most other forms of expression and protest, however, remain lawful.

Safe access zones across the world

Safe access zones are permitted under existing legislation in several jurisdictions across the world.

In England and Wales, several councils have used powers under Part 4 of the 2014 Anti-social Behaviour, Crime and Policing Act to create safe access zones in their districts. On the Isle of Man, the Tynwald passed the Abortion Reform Act in 2019. As well as expanding legal access to abortion, the Act permits the creation of safe access zones.

Further afield, safe access zones also exist in Australia, Canada and the United States.

Within Australia, safe access zone legislation exists in five states and two territories. Similarly in Canada, safe access zones are permitted in six of the country’s provinces. In the United States, several states have established floating zones outside abortion clinics, and the federal Freedom of Access to Clinic Entrances (FACE) Act 1994 creates specific criminal offences relating to preventing or interfering with access to reproductive health services.

Safe access zones and human rights

Creating and maintaining safe access zones requires balancing multiple human rights, which compete in this context. On one hand, people accessing premises to deliver or receive services claim a right to privacy. This privacy must be balanced with the rights of free expression, association and religion claimed by those who would protest against these services.

The specific rights involved in Northern Ireland are Article 8 of the European Convention on Human Rights – establishing a right to privacy – and Articles 9, 10 and 11 which establish rights to religion, expression and association. (The European Convention on Human Rights is given effect in the UK by the 1998 Human Rights Act.)

Articles 8, 9, 10 and 11 create ‘qualified rights.’ This means that these rights can be lawfully limited, in order to protect others’ human rights or the wider public interest. If the police knock on your door, your Article 8 right to privacy doesn’t allow you to refuse them entry (provided they have a lawful search warrant, where this is required). Similarly, Article 10 rights to freedom of expression can be limited in cases of hate speech.

In practice, authorities creating and maintaining safe access zones must balance these competing rights. This can be seen in a recent legal challenge to a safe access zone created by Ealing Council in London. In this case, the High Court in England and Wales found that the Ealing safe access zone interfered with the Article 9, 10 and 11 rights of protesters, but was ultimately lawful. (The Court of Appeal later upheld this ruling.) From the High Court ruling:

I am satisfied that the Article 8 rights of such users of the Centre were engaged on the facts of this case. [. . .] In the circumstances of this case, I do not doubt that there has been a significant interference with the rights of activists under Article 9, 10 and 11. I do not underestimate the seriousness of taking steps which are bound to conflict with that special degree of protection afforded to expressions of opinion which are made in the course of a debate on matters of public interest. Nevertheless I am satisfied that [Ealing Council] was entitled to conclude on the entirety of the evidence and information available to it that the making of this [safe access zone] was a necessary step in a democratic society.

The challenge to the Ealing safe access zone is being taken to the European Court of Human Rights, and is ongoing at the time of writing. The Court has previously upheld safe access zones in a 1995 judgment; however, the specific facts of the Ealing case are distinct from this, so the outcome of this appeal will be instructive.

Outside of Northern Ireland human rights law, other jurisdictions have considered safe access zones in terms of the human rights which apply in those places:

  • In Australia, there is no explicit constitutional right to privacy or freedom of expression or association (although Article 116 of the Constitution does establish freedom of religion). Historically, domestic legislation and case law has created and balanced rights to privacy and expression or association, below the level of the constitution.

In 2019, the High Court of Australia considered a challenge to safe access zones in Victoria and Tasmania. That Court ultimately found the safe access zones to be lawful, as they infringed free speech only to ‘serve the purpose of protecting the safety, wellbeing, privacy and dignity of persons accessing premises where terminations are provided.’

  • In Canada, limited and implicit rights to privacy are created in sections 7 and 8 of the Charter of Rights and Freedoms. Freedom of religion, association and expression is established in section 2.

In 2008, an appeal against a safe access zone law was heard by the Supreme Court, and then the Court of Appeal of British Columbia. Both Courts upheld the safe access zone, with the Court of Appeal stating ‘the objective of the [Access to Abortion Services] Act justifies the limited infringement of freedom of expression in the circumstances.’

  • In the United States, the 1st Amendment to the Constitution enshrines freedoms of religion, expression and association. There is no explicit right to privacy in the US Constitution, but limited and implicit protections of privacy are contained in the 3rd, 4th, 9th and 14th (The constitutional right to abortion in the United States is actually located primarily within a woman’s right to privacy, under the 14th Amendment.)

In considering safe access zones, US Supreme Court has established a test for their lawfulness in a 1994 case:

…the governing standard is whether the injunction’s challenged provisions [i.e. a safe access zone] burden no more speech than necessary to serve a significant government interest.

Since this point, the Court has applied this test when considering safe access zone laws in several states.

As detailed, there is no explicit right to privacy in the US Constitution, and the 1st Amendment grants broad freedom of expression, association and religion. Given this, the US Supreme Court has been quite restrictive in what it allows from safe access zone legislation. ‘Floating zones’ rather than fixed zones are preferred, and restrictions on protest must be clearly limited and necessary.

In each of the jurisdictions considered, case law has balanced the rights to privacy held by people accessing premises, with rights to expression, association and religion held by those who would protest. Although the precise nature and definition of the rights will vary from place to place, all jurisdictions considered have found safe access zone legislation to be permissible, where it strikes a proportionate balance between these competing rights.

Several considerations have arisen for the courts when seeking to strike these balances, including: what purpose does the safe access zone legislation seek to serve? How does it interfere with any human rights, in doing this? And is this interference proportionate to achieving the purpose desired? Abortion and related matters are subject to intense litigation, so the proportionality of any balance struck is always likely to be subject to scrutiny.