Insight: Should buffer zones be introduced around Scotland's abortion clinics?

Alice Murray was in her third year at Edinburgh University when she discovered she was pregnant. She had no desire to have a baby at that point in her life. “I was still studying and it was not on my radar," she says.

Clear in her own mind she wanted a termination, Murray visited the city’s Chalmers Sexual Health Centre. There, staff talked her through the various options before making an appointment for a medical abortion, which involves taking two different types of pills several hours apart.

On the day of the procedure, she turned up at the Chalmers Street clinic to find members of the anti-abortion group 40 Days for Life standing on the opposite side of the road.

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40 Days for Life is a US-based organisation which holds "vigils” outside abortion clinics in Scotland twice a year: during Lent and in autumn. Those who attend carry placards and hand out leaflets, some of which have shown the image of foetuses at various stages of development.

Campaigners who are against abortion protest outside Glasgow's Queen Elizabeth Hospital. Picture: John Devlin/JPIMedia

“On the day of my appointment, there were probably six or seven protesters. It’s a small street - so that’s quite a big presence," Murray says.

“They were holding signs that said ‘Pray to End Abortion’ and ‘Come and Ask Me About My Abortions’ and they were reciting prayers together."

Murray attended her appointment alone and says the vigil made her feel more isolated. The campaigners were still there when she left. Back home, waiting for the medication to take effect, she found her mind kept returning to them.

“They made that second stage much more uncomfortable and upsetting,” she says. “But there are other people - for whom the decision to have an abortion is less straight-forward - who would have been more traumatised.”

Paul Atkin

Murray's experience is not unusual. Research conducted by the British Pregnancy Advisory Service (BPAS) found that in the last five years, there had been an anti-abortion presence at 42 clinics in England and Wales, with more than 100,000 pregnant women subject to “anti-choice harassment” in 2019 alone. In Scotland, 70 per cent of women live in health boards where vigils have taken place.

As a result of what she had been through - and out of concern for other women - Murray joined Back Off Scotland. This grassroots organisation was set up a year ago to lobby for buffer zones - areas where protesters are forbidden from standing - outside all abortion clinics .

Buffer zones already exist in Australia, Canada and a handful of English local authorities. In British Columbia, for example, there is a 10-metre fixed buffer zone round a doctor’s office, 50-metre buffer zone around a hospital or clinic and a 160-metre zone around an abortion provider or clinic worker’s home.

Back Off Scotland’s demands for similar action at clinics here appear to have the support of the Scottish government. In the recently-published Women’s Health Plan it committed to working with the NHS and local authorities to “find ways of preventing women feeling harassed when accessing abortion care due to protests or vigils”.

But the issue has become mired in arguments over the legality of buffer zones and who should be responsible for implementing them.

Back Off Scotland wants to see the Scottish government impose them nationally. The Scottish government insists action should be taken by local authorities on a case by case basis through the creation of by-laws.

Both central and local government fear any action is likely to be challenged under the European Convention of Human Rights (ECHR).

Last week, the campaigners’ distress at the current stalemate was compounded by SNP MSP John Mason. Mason, who attended a vigil outside the Queen Elizabeth University Hospital in Glasgow, insisted the anti-abortion campaigners did not "approach anyone, harass anyone, or cause alarm or distress”. He said that - while legal - abortion services were seldom “essential” or “vital”.

Mason’s views on abortion and many other things are at odds with SNP policy - and his comments frequently provoke eye-rolls from fellow MSPs. Still, the failure to tackle the vigils has reawakened questions about the influence of faith groups on Scottish politics and the emphasis placed on religious freedom of expression.

“All the churches have had a problem with the clergy and child sex abuse - not just the Catholics, but the Anglicans, the Methodists and the Baptists,” says Alistair McBay, former vice-president of the National Secular Society .

"If I pitched up at any church on a Sunday and started to ask old ladies going into the service: 'Why are you supporting a church that rapes children then covers it up?' I'm certain I would be sitting in the back of a police car in half an hour. I don’t see why the same rules shouldn’t apply to the anti-abortion protesters.”

Back Off Scotland accepts campaigners' right to speak out against abortion; they just believe they should not be targeting vulnerable women as they attend their appointments.

“We support freedom of speech and the freedom to protest. While we are all pro-choice, we understand people have different views, “ says co-founder and director Lucy Grieve. “But go to parliament, don’t stand outside clinics. It’s so inappropriate. You can’t politicise someone’s body when they are going for a legal medical procedure.”

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Paul Atkin doesn’t think what he does is inappropriate. He has been going along to pro-life events for years and attends the 40 Days vigils at Chalmers Street once a week.

The last time he was there, he was standing beside the woman with the “Ask Me About My Abortions” sign.

“That woman had undergone two abortions,” he says. “She told me if there had been a vigil outside her clinics, she would have run to it because she had gone in with very mixed feelings and wished there had been an alternative.”

Like Mason, Atkin denies the anti-abortion campaigners harass women. He says everyone who attends the 40 Days vigils signs up to a “statement of peace” and that images of foetuses have now been banned.

“It’s being alleged that there is harassment, that there’s a rugby scrum and screaming, but there have been vigils in Scotland for more than 10 years. If that kind of intimidation was going on, there would be a record of it somewhere, and yet the police and NHS Lothian have nothing.”

Atkin insists the point of the vigils is to pray and offer help. He says women in the most deprived parts of the country are more than twice as likely to have abortions as those in the least deprived and that this suggests they are in need of financial support. The pro-life organisation he is part of is currently helping to support a woman whose boyfriend left her, but who wants to keep her baby.

Yet for those who use and work at the clinic, the vigils feel far from benign. “It is true the protesters outside Chalmers Street don’t shout, as they do in some countries,” Murray says. ”But just because something comes across as non-violent doesn’t mean it’s not distressing. When you are walking to an appointment, you feel directly attacked. Being prayed at feels sinister and pointed.”

One of the things that angers Murray is the campaigners’ contention that the clinics organise abortions for women without checking on their welfare .

She says she was asked about domestic violence, coercion and her financial situation. Staff also explored other potential options. Only when everyone was satisfied she was making the right choice for her, was an appointment made.

“The suggestion is that a woman comes in and says: 'I want an abortion' and the staff say: 'Fine here’s your tablets,' which is not the case," says Dr Audrey Brown, a consultant gynaecologist in the NHS. "It can’t be the case because medical staff have to work within the confines of the law."

Brown says she is particularly perturbed by the 40 Days protests outside the Glasgow Royal Infirmary (GRI) because abortions carried out there tend not to be “personal choice” abortions, but later stage abortions involving foetal abnormalities.

“Where people are having to abort much-wanted pregnancies it is likely to be particularly traumatising,” she says. “But even when they are sure of their decision, it can be difficult. Some feel stigmatised, they feel ashamed and upset, so having to run the gauntlet past what at times is a large group can be intimidating.”

Though this is not the US, where abortion providers have been physically attacked, the vigils are nonetheless distressing for staff, who feel vilified. “The year before Covid, during Lent, there was a huge presence at the Queen Elizabeth - sometimes up to 50 people - and their prayers could be heard inside the building,” Brown says.

Some time ago, she took a photograph of a placard at the GRI which bore an image of a foetus and the words: “Abortion is global genocide, it’s a silent holocaust”. “It was disgusting,” she says. “To use that language is inappropriate full-stop, but I was also thinking about the people walking through the gates who came here seeking asylum because there was genocide in their home country.”

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The Scottish government agrees with Back Off Scotland in principle but has delegated responsibility for action downwards. Its lawyers say any move to centrally mandate buffer zones is likely to be judged “disproportionate” under the ECHR. But they suggested local authorities could create bylaws to tackle the vigils.

For their part, local authorities have been reluctant to take the lead because they too fear a costly legal challenge. Despite this, in the wake of the campaign, the City of Edinburgh Council voted in favour of a buffer zone outside the Chalmers Street clinic. It promised to work with the Scottish government and the Convention of Scottish Local Authorities (Cosla) to find a way forward.

More recently, though, these plans have been scuppered by separate legal advice which suggested the creation of bylaws by local authorities was also likely to clash with the ECHR, leaving all parties at an impasse.

In Westminster, the former Home Secretary, Sajid Javid, agreed with the Scottish government that centrally-mandated buffer zones would be judged disproportionate, particularly in light of the “passive” nature of activities outside of abortion clinics and the existing powers of local councils and police.

His successor Priti Patel, however, agreed to cross-party talks with senior backbenchers, and in July an amendment to the Police, Crime, Sentencing & Courts Bill was tabled in an attempt to bring automatic “buffer zones” into law. This amendment was not taken to a vote.

While all this was going on, existing anti-social behaviour powers were used to create buffer zones in Ealing, Richmond and Manchester.

These powers allow councils to use Public Spaces Protection Orders (PSPOs) - a sort of place-based ASBO - to ban certain activities in a certain location on the grounds they are detrimental to life in the area.

At first, PSPOs were used mostly used to ban rough sleeping and begging, but pro-choice campaigners soon recognised their potential as a mechanism to prevent anti-abortion vigils being held outside clinics.

The first buffer zone was created around a Marie Stopes clinic in Ealing - where anti-abortion protesters had been gathering for years.

“Their behaviour might not look like traditional anti-social disorder but it’s about the context and intention,” says Rachael Clarke, head of public affairs and policy at BPAS, the biggest provider of abortions in England and Wales.

“They intend to dissuade and deter women from accessing care to which they are legally entitled and they do it by standing immediately outside the clinic.”

In 2015, around 20 women came together to set up the pro-choice group Sister Supporter. They staged counter-protests, standing in a line with their backs to the Ealing clinic, creating a physical barrier to shield clinic users from protesters.

Sister Supporter also launched a petition which gathered 3,593 signatures. As a result, in April 2018, Ealing Council used a PSPO to create a 330ft exclusion zone - forcing both groups off the land.

Predictably, the matter did not end there. One of the anti-abortion campaigners, Alina Dulgheria, backed by the Catholic Good Counsel Network - fought the decision on the grounds that her rights to assembly, religion, thought, expression and reception of information were being violated.

Her challenge was rejected by both the High Court and the Court of Appeal, and the Supreme Court has refused to hear the case. Dulgheria is now taking her challenge to the European Court of Human Rights, but the buffer zone has been reinstated.

There are no PSPOs in Scotland, and Back Off Scotland does not want to up the ante outside clinics with its own counter protests. But Clarke - who sat through the English court cases - believes what happened in Ealing shows there is no reason by-law legislation could not be used.

“The argument [at the High Court and the Court of Appeal] was not around whether or not the PSPO was an appropriate mechanism but whether or not buffer zones were a proportionate response to the issue,” she says.

“The courts have been really clear that they *are* proportionate in terms of articles five, 10 and 11 [of the Human Rights Act] - the right to gather, freedom of speech and freedom of religious expression. Dulgheria’s challenge has been dismissed on all grounds twice.”

A potential approach in Scotland might be an extension of group dispersal orders. At the moment, police can use group dispersal orders to force those engaged in anti-social behaviour to leave a specified area for 48 hours. If the time limit of group dispersal orders were extended to six weeks, they could perhaps be used to tackle the 40 Days vigils.

While welcoming the actions of Ealing, Richmond and Manchester, BPAS and Back Off Scotland would still prefer to see the UK and Scottish governments take action nationally to ensure consistency across the country.

“It takes so long and requires so much evidence and local will to get this stuff through councils,” Clarke says.

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For those who support buffer zones, progress is frustratingly slow. Some however are looking at the rise of anti-vaxxers as a potential catalyst for change.

Since coronavirus vaccines began being rolled out to 12-15-year-olds in England and Wales, protesters have been standing outside schools, handing out leaflets and sometimes even filming pupils.

Last week, Labour MP Stella Creasy called for buffer zones to be established and said the arguments were similar to those around abortion clinics.

It is understood the Scottish government was already looking beyond abortion clinics - to protests in other contexts such as assisted dying - to see if there were any approaches that might be applied. Could the threat posed by anti-vaxxers lead to greater legal protections around the right to access all healthcare facilities?

Clarke is not so sure. “I think there’s a risk that with the anti-vaxxers you could get tied up in knots,” she says. “There’s less evidence, it’s less long term, it’s often less obvious who is going in for vaccinations and who is going for something else, you wade into a lot bigger free speech and targeting issues.

“At the same time, the more people who realise there are groups of people who think standing outside clinics to try to dissuade people from accessing medical care the better.”

Meanwhile, Back Off Scotland wants the Scottish government to have the courage of its convictions. “I think the fact they aren’t moving more rapidly is a total abdication of responsibility,” Grieve says. “I don’t understand how we can try to be world-leading on women’s health - as the appointment of a women’s health minister alludes to - and then jump ship because of the risk of legal challenge.”

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