Australian pro-lifers lose challenge to abortion clinic buffer zones

Crowds at the March for Life in Washington DC on Jan 27 2017 Credit Jeff Bruno 40 CNA The March for Life in Washington, D.C., Jan. 27, 2017. | Jeff Bruno.

Australia's high court on Wednesday threw out cases brought by pro-life activists challenging "buffer zone" laws in Victoria and Tasmania that bar any protests within 150 meters (nearly 500 feet) of a clinic or hospital that performs abortions.

In its April 10 decision, the court said that "given that the proscription leaves protesters free to conduct protests in relation to terminations outside the access zone, and that there is no evidence or other reason to accept that political protest against terminations outside the access zone is any less effective as a tool of political persuasion than protest within", the buffer zones' effect on political freedom was "negligible".

The Victorian case was brought by Kathleen Clubb, a pro-life campaigner who was fined $5,000 in 2016 for "communicating about abortion" to a woman using an abortion clinic. The same year, Graham Preston was fined $3,000 for violating Tasmania's similar buffer zone law.

Both plaintiffs argued that the laws violate their freedom of speech, since they prohibit political speech in a place where "communications on [abortion] are likely to occur and be most politically resonant."

Clubb has said that "the prohibition applies whether or not discomfort is caused, and irrespective of the political significance of the communication in the circumstances" and that the appeal asked "whether a prohibition of that kind is compatible with a constitution which protects a freedom of political communication."

Their lawyers had argued that because there are already laws in both states that protect against harassment and intimidation, the only further effect of the buffer zone laws is essentially to ban peaceful protest, and that Australia grants an implied freedom to political speech.

The court responded to the "implied freedom" argument saying that "it is no part of the implied freedom to guarantee a speaker an audience, much less a captive audience."

It added that "the limited interference with the implied freedom is not manifestly disproportionate to the objectives of the communication prohibition. The burden on the implied freedom is limited spatially, and is confined to communications about abortions. There is norestriction at all on political communications outside of safe access zones. There is no discrimination between pro-abortion and anti-abortion communications. The purpose of the prohibition justifies a limitation on the exercise of free expression within that limited area."

The governments of Victoria and Tasmania had contended that the laws are designed to allow women to access legal medical services.

The Australian Capital Territory, the Northern Territory, New South Wales, and Queensland have similar buffer zone laws.

Buffer zones are being debated elsewhere, including in the United Kingdom. British Home Secretary Sajid Javid rejected proposals for buffer zones around abortion clinics throughout England and Wales as disproportionate in a Sept. 13, 2018 decision, after finding that most abortion protests are peaceful and passive. Local jurisdictions in England and Wales are able to establish their own buffer zones.

In the United States, three states have passed buffer zone laws: Colorado, Montana, and Massachusetts.

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