Safe Access Zones for Abortion Clinics

Abortion has historically been an extremely controversial issue. It has hit the headlines again recently across several different continents and for several different reasons.

In Europe, Ireland, one of Europe’s most socially conservative countries, held a referendum on constitutional amendments that would reverse provisions that banned abortions. That referendum passed with a 2 to 1 majority.

In the United States the recent decision of Supreme Court Justice Anthony Kennedy has reinvigorated debate about abortion laws. Justice Kennedy’s decision to resign means that President Trump has the opportunity to appoint a new, socially conservative, Justice and it is expected that his appointment will be of a Justice that supports the overturning of the US Supreme Court’s decision of Roe -v- Wade. That decision has been widely interpreted as granting women in the United States constitutional right to obtain an abortion in the first trimester of their pregnancy.

Closer to home we have recently had New South Wales Parliament pass amendments to the Public Health Act to create what are known as “safe access zones” around reproductive health clinics.

Interestingly, there is no absolute right to an abortion in NSW (a fact that is not widely known). Indeed, sections 82 to 84 of the Crimes Act make various actions “to procure a miscarriage” illegal. Sections 82 and 83, provide for prison sentences of a maximum of 10 years for a woman administering drugs to herself, or a second person administering drugs, or using any instruments on a woman to “procure a miscarriage”. Section 84 provides for a maximum sentence of five years for procuring drugs or instruments with the knowledge that they will be used to “procure a miscarriage”.

It has been left to case law to define what is a legal abortion. A decision of Justice Levine in 1971 held that an abortion was not unlawful if a doctor honestly believed on reasonable grounds that “the operation was necessary to preserve the woman involved from serious danger to her life physical or mental health which the continuance of pregnancy would entail”. That finding was expanded in 1995 to clarify that mental health included “the effects of economic or social stress that may pertain either during pregnancy or after birth”.

The Public Health Amendment (Safe Access to Reproductive Health Clinics) Bill makes it an offence to interfere with any person accessing, leaving or attempting to access or leave a reproductive health clinic within a safe access zone. A safe access zone is the premises of the reproductive health clinic, and the area within 150 m of that clinic. Interfere with includes harass, intimidate, beset, threaten, hinder, obstruct or impede by any means.

Whatever one’s position on abortion is it would seem to be less controversial that people should be allowed to enter and exit those buildings without being interfered with.

What is perhaps more problematic is the proposed amendment which prohibits making a communication reasonably likely to cause distress or anxiety relating to abortions that is able to be seen or heard within a safe zone. There is absolutely no doubt that the intent of this legislation is a good one however the words “reasonably likely to cause distress or anxiety” are words that are open to a wide variety of interpretations. They may, for example, include comments that were intended to be supportive but had the unintentional effect of causing “distress or anxiety”.

Opinion polls have shown a consistently very high support for women to be able to access safe and legal abortions. The recent amendments to the Public Health Act are in line with such sentiments. It is curious however that abortion remains “technically” illegal and that this matter has not also been addressed.

With any luck the Public Health Act amendments operate as they are intended and do not end up causing additional stress and anxiety to people who are, no matter which side of the abortion debate they stand on, undoubtedly going through a time of heightened emotional impact.