ABTL Blog Post – Written by Alexia Sri Tharan. Alexia is currently studying LLB Bachelor of Laws at the London School of Economics and Political Science.
The discussion concerning abortion is complex and includes a range of perspectives. Abortion was legalised in England in 1967 through the Abortion Act 1967; however, it has been unsuccessfully challenged by “pro-life” organisations on many occasions since. The introduction of safe access zones has added further contention to the debate regarding women’s rights.
A Safe Access Zone is a designated area around abortion clinics where gatherings and activities, known to negatively impact or intimidate clinic visitors, are not allowed. The protesters’ central concern seems to be the infringement of their rights, and so the court has highlighted the importance of assessing the proportionality of conflicting human rights in the context of safe access zones. These zones, which originated in Ealing, have now been adopted nationwide in the UK, including Northern Ireland, which recently established the Abortion Services (Safe Access Zones) (Northern Ireland) Bill 2023. This milestone was significant considering the recent legalisation of abortion in Northern Ireland in 2019. However, how did the courts determine which conflicting right was balanced and proportionate?
In 2018, Ealing Council implemented a safe access zone, a hundred metre buffer zone around the Marie Stopes West London clinic. However, in Dulgheriu v LB Ealing , the Good Counsel Network (GCN), a religious organisation, challenged this decision invoking Article 9 (Freedom of thought, conscience and religion), Article 10 (Freedom of expression) and Article 11 (Freedom of assembly and association) of the Human Rights Act 1998. While the Articles in the Human Rights Act provide grounds for appeal, they are subject to exceptions and could be dismissed if they conflict with the rights and the health of others. Conversely, the GCN had been recognised for conducting vigils, offering prayers, distributing leaflets featuring foetuses, and trying to interact with clinic attendees. This was perceived as intimidation and harassment by certain women seeking services. The Court of Appeal assessed whether the GCN’s rights had been dismissed using the proportionality test, asking whether establishing a buffer zone was
essential and proportionate to safeguard the rights of women attending the clinic. The Court of Appeal ultimately rejected the appeal, acknowledging the significant emotional distress experienced by many women due to the GCN’s actions.
As mentioned earlier, Northern Ireland recently passed the Abortion Services (Safe Access Zones) (Northern Ireland) Bill. In 2022, however, before its enactment, the bill faced a challenge regarding whether it was within the legislative competence of Stormont (Northern Ireland Assembly) to criminalise prohibited activities in the zone – see [Reference by Attorney General for Northern Ireland’s Abortion Services Bill –  UKSC 32]. The decision regarding the competing rights issue and the justification of criminalisation of the prohibited activities was similar to that in the Ealing case. In this case, the Supreme Court affirmed that the rights of protesters were not being disrupted. Lord Reed held that the bill tries ‘to pursue a legitimate aim’ and that its ‘purpose is to ensure that women have access to premises at which treatment or advice concerning the lawful termination of pregnancy is provided, under conditions which respect their privacy and their dignity, thereby enabling them to access the health care they require, and promoting public health.’ He also emphasised the ‘protection of the private lives and autonomy of women.’ This decision was significant for women in Northern Ireland, as many were previously travelling to England, Scotland, or Wales for abortion services or purchasing pills from unregulated websites which could lead to severe health complications.
Why is the creation of Safe Access Zones outside clinics considered a safeguard for women’s autonomy, and is it justifiable to limit the rights of protesters? Over the past 25 years, Marie Stopes has documented instances where women faced various forms of harassment, including receiving medically incorrect information, being labelled as ‘murderers,’ encountering graphic images, and enduring physical and verbal aggression. These actions are not only harmful but also intrude upon the dignity and privacy of many women, ultimately impeding their access to healthcare. Abortion clinics often serve women and children at various life stages, each dealing with unique challenges and vulnerabilities. Regardless of individual or group ethics, the courts contend that women should have the right to private life. Moreover, the establishment of buffer zones is seen as a crucial step forward for women’s rights. The approval of the Northern Irish Bill also sets a precedent for other countries to implement similar measures that protect women’s rights proportionately to the rights of protesters.