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17 February 2015

Debate – Abortion and protest: Do we need buffer zones?

A meeting organised by the London Legal Salon in February debated the question of whether buffer zones should be established outside abortion clinics in Britain. Here, we reproduce the speeches for and against.

Triggered by the Back Off campaign, which was launched by BPAS and other organisations in late 2014 in response to the escalation of anti-abortion activity outside healthcare centres, the debate asked whether buffer zones constituted a restriction on freedom of speech, freedom of protest, or freedom of association, and if so whether such restriction is justified.

Speaking in opposition to the question ‘do we need buffer zones?’ was Tim Stanley, a writer for Daily Telegraph and History Today and a commentator on current affairs. Speaking in favour of the argument for buffer zones was Frank Furedi, Professor of Sociology at the University of Kent and author of a number of books, including On Tolerance: A defence of moral independence. Their speeches are reproduced below.

The speeches were followed by a lively audience discussion. The podcast of the entire debate can be accessed here.

Tim Stanley

I think I’ve got guts to take on Frank Furedi on this subject! He’s a remarkable man and remarkable mind. And it surprises me and perhaps a little bit upsets me that a great spokesman for freedom of speech is on the other side on this issue.

We’re going to discuss something that is technically all about law, but let’s not ignore the context of the framing of the law, and that’s the politics. Abortion is a unique issue in how it emotionally defines the debate and how strongly people on both sides of the debate feel. I don’t see much point in running away from it – I’m pro-life, people on my side of the argument tend to regard life as beginning at conception, and that what takes place in an abortion clinic is the taking of life.

People who are pro-choice tend to regard the issue as a woman’s right to control her own reproductive system, and they see any attempt to limit that, or to cajole a woman out of taking that choice, as an assault upon a woman’s personhood and her rights as a citizen and a human being.

So there is an incredible division that is very difficult to find much accommodation in. But in a liberal democratic society such as ours, that’s exactly what we’re trying to do. We try and strike a consensus between those two groups. And the consensus until now has hitherto worked something like this. The pro-lifers have accepted that abortion is legal, and there is nothing they can do or should try and do to prevent women getting access to abortion services. Which is a big ask for people who in many ways regard abortion as a great moral sin.

On the other side, pro-choicers, as part of this give and take, have to accept the fact that there are people out there who regard this as the taking of a life. And they have to accept – within the context of what is legal, obviously – the right of pro-lifers to express their views and to exercise their own freedom of speech.

So what we’ve tried to do in the last 40 years is to create that kind of consensus within which two people with quite starkly contrasting views can get along with each other, and can have some sort of civil discourse. And the problem with the idea of the buffer zones is that it tears apart that consensus. It is one side exercising its privilege over the other, and it’s a very very dangerous idea.

Here are the four basic things that are wrong with the idea of a buffer zone. First, in legal terms it’s completely unnecessary. We already have the 1986 Public Order Act, which outlaws harassment, alarm or distress being caused to members of the public. If anyone outside an abortion clinic is involved in a protest and they do any of those things to women trying to access services, and it can be proven objectively, not subjectively, that that is what they’re doing, it’s the police’s job to arrest them, and to remove them from that site. There is no need for any kind of buffer zone.

If the clinic believes this is going on, the clinic has to make the case that this is happening. By the way, if there are any protestors associated with it, it is their responsibility also to report and distance themselves from it. There is no need to write a new law just because an old one, for strange reasons which are beyond me, is not being properly enforced. If, for example, for some reason the police were turning a blind eye to burglaries, that doesn’t mean you pass a law saying no stranger should ever be invited into anyone’s home. You don’t suddenly make up new dramatic laws to make up for the fact that there is a procedural problem with the old one. Enforce it, enforce it properly.

Second. Introducing buffer zones undermines the entire philosophical point of a protest. So when you protest something, it’s usually directed. And it’s usually directed at people, or a thing, or a place. So a counter-example would be a fox hunt. If you want to protest a fox hunt, what are you trying to do? You’re trying to draw attention to the fact that a fox hunt is happening on that day. So you’re going to be there, where the fox hunt is happening. You’re going to get media attention. And you’re going to try and persuade the people not to go on the fox hunt. Now obviously, it would make no sense to ask fox hunt protestors to have that protest just 50 miles in a northerly direction, way away
from the fox hunt. 

That’s madness, because protest – an inviolable right in my opinion, and in the opinion of British law – protest is directed at things usually. And so long as there is no blocking of access, so long as that 1986 Act is not broken, so long as there isn’t an incitement of violence, the protest should be allowed to occur where the people involved believe that is where the moral disorder is taking place.

Third. The idea that the attempt to engage women going into an abortion clinic should be curtailed altogether – so that is outside of the confines of the 1986 Act – is incredibly flawed and very very hard to enforce. So what does engagement involve? Does it involve saying ‘good morning’ to someone? Does engagement involve handing over a leaflet to someone? We’re going to have a great deal of difficulty deciding exactly what engagement is.

Besides, it has long been understood in our legal system that public highways and byways, that common land and pavements, are places where people are free to express themselves. And you equally, of course, are entirely free to ignore them. But we still, in daily discourse, have engagement. It might well be very nice to ban that kind of engagement come election time, because under the principle of the buffer zone law we could for instance deny UKIP the right to canvas – some people might quite like that, I don’t know. But it doesn’t seem like a very fair restriction on people’s liberties to me. And again it’s going to be hard to judge, it’s unnecessary, and again, we still have the 1986 Act which could simply be enforced.

Fourth. It is entirely possible, as BPAS has complained, that there are individual protestors who do bad things. For instance, there are some I believe who use cameras. They insist they use cameras in order to record themselves, to protect themselves against attack; but nonetheless, that’s an invasion of privacy, again, police should be involved and that should be stopped.

But think about it. Are you going to write law that curtails an entire group’s freedom of expression because of the bad behaviour of one or two people within it? So if on a Sunday afternoon someone ignores the sign in a park that says ‘don’t walk on the grass’ and walks on it, what do you do? You throw that individual out for walking on the grass. You don’t clamp a curfew down and ban everyone from the park.

So to sum up. I think all these objections seem to me perfectly logical, and they all come back to the point that we’re had this consensus for a long time, and the law is there to make sure that consensus takes place in a peaceful context. Why is BPAS doing this? It is doing this because it wishes to use the law in order to advantage itself and to advantage its own clinics, and that absolutely cannot be the right thing to do.

I’ll just add one final thing. I have myself been on prolife vigils outside abortion clinics, and I can tell you that nine times out of ten it is eight little old ladies saying the rosary, while one policeman walks around nervously, not quite sure why he’s there. You do it for two hours, then it gets too cold and you give up and go to the pub. This is completely unnecessary.

Frank Furedi

The question I’m trying to deal with is how do you reconcile people’s freedom to assemble, which is really what we’re talking about, their right to protest, which are all very precious rights, with the ability of women to exercise the choice that they make and gain access to a medical treatment, and with the service provider to provide their duty of care to that individual. How do you reconcile those two elements?

It seems to me what we’re interested in is finding the greatest possible scope for allowing people the right to assemble freely, the greatest possible scope to allowing people their greatest possible right to free speech and to enjoy their democratic rights, with the right of a clinic to exist as a clinic. Because that’s what we’re talking about. The only reason why the issue has come up is not because BPAS is trying to privilege its arguments, or trying to gain publicity: it’s because it just wants to get on with the fact that it wants to run a service, in circumstances where if it’s unable to immunise itself from people who are intimidating people who are walking in there, it couldn’t really function.

I think the law issue is quite irrelevant here, because nobody as far as I’m concerned is arguing for the enactment of a law, I don’t think that’s the issue, I don’t think BPAS is arguing for a law in Parliament. Nor are legal issues of particular concern because in this domain, the idea that if BPAS can prove, or if somebody can prove, that somebody’s being intimidated it’s not a very big help. Because it’s an after-the-event conclusion, by which time the woman who has been intimidated has not been able to access her abortion. So it’s not going to help her to know, after she’s given birth to a child she doesn’t want to know, that the court has ruled in her favour. And it’s precisely because of the after-the-event character of the way that the law works in relation to this that what BPAS is rightly concerned with is the moment of entry, and the right of entry.

I just want to begin with a few general principles. The first important point that I argue about free speech, certainly as a libertarian, is that free speech is absolute, it’s non-negotiable, and I’m quite happy for anybody from Holocaust deniers to whatever your persuasion is to have total freedom of speech. I have always argued for that. I don’t think the issue in this case is the freedom of Abort 67 to say what it wants to do, or to express what it wants to do.

From this standpoint I’m just as concerned about the free speech of Abort 67 or any of my political opponents as I am about my own freedom of speech. I say that not for instrumental reasons, not because it’s pragmatic, but because I recognise that the freedom of speech is indivisible. And it’s only through learning from what people argue against your own case, it’s only through the discussion and debate that occurs, that real progressive ideas can be clarified and gain force. So I’ve got every incentive to protect pro-life people’s free speech 120 per cent without any kind of discussion. The issue at stake here in relation to this is not freedom of speech, it’s freedom of assembly. That’s what we’re talking about.

Freedom of assembly and free speech are two different things. Free speech is logically prior to the freedom of assembly. Freedom of assembly is a secondary right that’s been recognised in both legal and philosophical terms, of which there’s a derivative right to protest. The right to protest actually emerges from the freedom of assembly. Most people understand that freedom of assembly can never be absolute. It is usually subject to some form of time, place, and manner of restriction. In other words, is the freedom of assembly compatible with the normal activities that are being carried out at any particular time? That’s generally understood.

So for example, while I completely support the right of Occupy to have freedom of assembly in front of St Paul’s Cathedral for one day or two days, I do have serious objections to them spending the next eight months there and not allowing people access to St Paul’s Cathedral.

Freedom of assembly is always contingent in every democracy and will always be contingent – it’s never been an absolute right, for the simple reason that your freedom of assembly will ipso facto often contradict my freedom of assembly, my ability to carry out certain functions in a normal, everyday way. It’s always been recognised as a contingent freedom, and it’s always been based on the fact that we have to allow people to exercise their normal activities and limit the possibility of them infringing and stepping on the feet of those individuals.

Let’s look at the specifics of the Back Off campaign. The Back Off campaign aims to constrain a very specific form of action, which is the attempt to prevent women from exercising the choice that they have made. It’s not about leaflets, it’s not about placards – as far as BPAS is concerned, they have even be prepared to defend the right of pro-life campaigners to show graphic images of fetuses. They’ve always been open to the idea of allowing them to have free access to television to show these things; there’s always been a very liberal approach towards the speech elements.

The Back Off campaign is really about a very specific thing. It’s really about not the freedom of speech, nor is it about freedom of protest, because Abort 67 can protest as much as they would like. It’s about an attempt to restrict Abort 67’s right to assemble to any place of its choosing. In other words it’s really about the freedom of assembly of Abort 67, to simply be where it wants to be at any particular time. The reason for that is because in this way, what you’re trying to do is to limit the ability of Abort 67 to interfere and intimidate patients from accessing services through the clinic. That’s what it’s all about. It’s about stopping the intimidation of individuals.

You might say, ‘well, their free speech is your intimidation’, but actually you don’t need a PhD in the finer studies of psychology to know that when people are harassing you with cameras as you are going into a clinic, it’s not exactly an intimidation-free environment. It seems to me that Abort 67 is actually a very interesting case because unlike most sections of the pro-life movement, for whom I have the utmost respect, Abort 67 actually avoids having a debate on substantive issues.

Abort 67 are not particularly engaged with the arguments for example that women have to consider when they weigh up making choices about the course of their pregnancy. They’re not particularly interested in the distinctions that people have to live with and the tensions that they experience in the course of that. That’s not really what they’re concerned with.

In fact, unlike BPAS, which is concerned with these kind of issues, Abort 67 is not particularly interested in the whole domain of moral dilemmas, the whole domain of moral choices. There is no moral equivalency between the two sides. Because what you’ve got here is BPAS, for whom choice is paramount, and for whom it’s not really important what the outcome of that choice is, it doesn’t really matter if you want an abortion or not as long as you have the right to make that choice, and you’ve got Abort 67, for whom the idea of a choice, the idea of exercising your moral autonomy, is an annihilation of their identity.  There is no symmetrical relationship here.

It seems to me that under those circumstances, what you have is a situation where it’s not about debate, and Abort 67 says they’re not about debating, they’re not about even protesting, what they argue is they want to stop women from entering the clinic. And they’re quite explicit; to their credit they’re quite upfront about it.

One last point. I’ve got no problem with people trying to intimidate other people in the service of a good cause. As a former radical I have been on picket lines and I’ve tried to stop scabs from going into work. I’ve organised student strikes and I’ve helped people shut down universities and prevent people coming into the rooms, and the reason why I did that was because I thought it was morally right. I thought the cause that I fought for was well worth using force, and using intimidation. That’s really what it was.

But I never deceived myself nor the public by saying that what was at issue was my freedom of assembly, that was at issue was my freedom of speech, that somehow tried to recast the act of intimidation in a very different kind of language of freedoms, that is really something that is entirely absent from here.

The reason why this is really important is because intimidation in some cases is all right. But you do cross the line when you try and intimidate patients who are having access to a clinical service. You do cross the line where, instead of arguing about the choice that women have made, you try to prevent them from exercising the choice that those individuals have made. Because under those circumstances, you forget what every civilised society has always understood: which is that the way that patients are, what we think of as patient status, is very different to anybody else.

Not because they are weak or vulnerable, but because we presume that every patient, man or woman, entering a hospital or clinic needs to have certain protections that we don’t afford everybody else. They need to have confidentiality – you don’t have confidentiality when you go to a supermarket, you don’t have confidentiality when you go into a factory, but we do recognise that patients entering clinics are entitled to confidentiality.

We also recognise that patients, unlike anybody else, need to be immunised from the pressures and the tensions and the intimidation that is quite acceptable in other domains of social experience. Which is why we always, in every civilised society, make a distinction between what a patient is and what a normal human being is.

I don’t think it’s an accident that what Abort 67 tries to do is actually define people’s status as patients out of existence. Because from their perspective, the people that are entering that clinic are not patients in search of a medical service, they are simply sinners and murderers and as far as they are concerned, from that standpoint they are entitled to do whatever they want. Which is fine, but it’s got nothing to do with any discussion of freedom in any of its forms.

Listen to the podcast of the debate here. See the Back Off campaign website here.