Abortion rights advocates are hoping the High Court鈥檚 findings will support laws that have assisted access to abortion clinics, after it heard a challenge to safe access zone laws over October 9-11.
Kathleen Clubb and John Graham Preston are challenging Victoria鈥檚 and Tasmania鈥檚 safe access zone laws, claiming they violate free speech.
Clubb, who is linked to the United States anti-choice group Helpers of God鈥檚 Infants, was convicted in Victoria in 2016 of communicating about abortion in a manner 鈥渞easonably likely to cause distress or anxiety鈥 to a couple trying to enter the Melbourne Fertility Control Clinic. 聽
Preston was convicted after protesting within the safe access zone outside Hobart鈥檚 Specialist Gynaecology Centre.
Safe access zones have been established in Tasmania, Victoria, the ACT, the Northern Territory and New South Wales. Queensland is set to vote on a similar law as part of its abortion law reform package.
In each state and territory, the laws, which are targeted at anti-abortion campaigners, prohibit conduct likely to cause distress or anxiety in a specific area around abortion providers.
The case is significant as it centres on free speech, which is only an implied right in the Australian Constitution.
The Human Rights Law Centre provided a to the court strongly supporting safe access zone laws on the basis they ensure 鈥渨omen and clinic staff do not have to forgo their rights to safety, dignity and privacy鈥.
It argued 鈥渋t strikes the right balance鈥 between the freedom of political communication and the right of every woman to access abortion care without being harassed or intimidated.
The federal government, as well as state and territorial governments in NSW, Queensland, South Australia, Western Australia and the Northern Territory intervened in support of the Victorian and Tasmanian laws.
Monash University鈥檚 Castan Centre for Human Rights Law has also presented a to the court based on research, in the form of interviews, with Victorian health professionals to evaluate the nature and impact of the anti-abortion protests on clinics.
In its submission, the centre argued that as the conduct of anti-abortion campaigners was not an exercise in political communication, but rather 鈥渃onsisted of threats, intimidation and harassment鈥, it could not be said to be a threat to the right to freedom of speech.
It also found that safe access zones 鈥渁re necessary聽to protect the safety, wellbeing and privacy of patients and staff鈥.
The centre also believes that the law did not 鈥渋mpermissibly burden鈥 the implied right of political communication.
Instead, it contended that the conduct of protesters trying to prevent individuals from accessing abortion services without the limits imposed by safe access zones does 鈥渋mpermissibly interfere with鈥 a patient鈥檚 right to privacy, security, the highest standard of health care and, importantly, the right to decide freely and responsibly on the number and spacing of their children.
The research showed that anti-abortion protesters operated as a barrier 鈥 physical and mental 鈥 to women accessing abortion services.
It also added a lot of strain on clinic staff, who in some cases have had to close clinics down.
The submission noted that the anti-abortion protesters鈥 shaming and intimidation of patient鈥檚 was aimed at delaying, if not preventing an abortion. This can have significant and adverse consequences on the patient: even a week鈥檚 delay can affect the patient鈥檚 eligibility for medical (rather than surgical) abortion.
To the extent that these laws burden the implied freedom of political communication, the Castan Centre noted that it was 鈥渁ppropriate鈥 as they uphold the right of women to access a medical service over those of moral crusaders fighting a rearguard action to stop women from having bodily autonomy.