Why are anti-abortion protests still happening in buffer zones across Scotland?

Last year, Gillian Mackay MSP claimed victory in getting her buffer zone legislation made law - but that has not stopped countless anti-abortion protests taking place outside clinics.

When legislation was brought in last autumn banning anti-abortion protests outside healthcare clinics in Scotland, it was lauded as the political solution to stopping demonstrators “for good”.

The Bill’s passing was dubbed a victory by Gillian Mackay, the Green MSP who pushed through the legislation in Holyrood.

The Safe Access Zones Act was written to prevent protestors gathering within 200m of clinics that perform abortions.

At the time when the legislation was passed at stage three in September, Ms Mackay said: “It is organised intimidation and harassment and it is wrong.

“The protesters have heard the same testimony as I have and know all about the pain, distress and hurt that they are causing for patients and medical staff. Now, at last, we are only weeks away from stopping them for good.”

However, there is a scenario now that supporters of the Bill would not have anticipated - countless anti-abortion protests are still happening outside clinics.

Members of 40 Days for Life, which campaigns against abortion, take part in a "prayer vigil" outside the Queen Elizabeth University Hospital in Glasgow | Press Association

A 74-year-old woman was arrested and charged for allegedly breaching a buffer zone outside Queen Elizabeth University Hospital in Glasgow last month.

Police were separately called after the Scottish Family Party held protests inside buffer zones in Edinburgh and Aberdeen. The party is not deterred by the law and has vowed to carry out more demonstrations in the coming weeks.

However, no one from these subsequent protests has been arrested, and there seems to be some confusion over how the law actually works in practice.

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The groups holding these protests say they are not breaking any laws. In fact, they believe they have found a loophole.

Ms Mackay and her fellow Scottish Greens disagree, and say the law is iron clad and all of these anti-abortion protests within buffer zones are illegal. But who is right?

The wording of the law

The Abortion Services (Safe Access Zones) Act prevents anti-abortion protests from taking place within 200m of any clinic carrying out abortions in Scotland.

It is a criminal offence within these zones to act in a way that could influence people accessing these clinics, or to behave in a way that causes alarm, harassment or distress.

This can include approaching someone to persuade them not to have an abortion, surrounding someone as they enter or leave a clinic, handing out leaflets, religious preaching and silent vigils. Those breaking the law could face a fine of up to £10,000.

But the wording is a little vague - so vague the Scottish Family Party argue they are in fact allowed to protest inside these buffer zones if the clinic is closed.

They say the person they are influencing must be in the safe access zone for the purposes of receiving or facilitating an abortion, something that logically cannot happen if the clinic is shut.

Looking at the legislation, the Bill does specify the person “is in the safe access zone for the purpose of accessing, providing or facilitating the provision of abortion services at the protected premises”. This had led to some ambiguity.

Richard Lucas, leader of the Scottish Family Party, said: “The law is when the person being influenced is in the safe access zone for the purpose of accessing, providing or facilitating abortion services, which cannot happen when the clinic is closed. It is straightforward logic.”

The Scottish Family Party holding an anti-abortion protest within the buffer zone around the Chalmers Centre in Edinburgh. | Supplied

When asked if he accepts the demonstrations are upsetting regardless of the time of day, Mr Lucas said: “I don’t accept that. The people who want to see the killing of the unborn continue don’t like us.”

Why is the Scottish Family Party running protests?

The Scottish Family Party’s manifesto states: “Life is precious - all human life has intrinsic worth and the measure of a civilised society is how we treat those who are the most vulnerable.

“We affirm the value of human life in the womb. Abortion as a means of birth control is morally unjustifiable.”

The party’s manifesto also claims that “without abortion, births would exceed deaths in Scotland” and “the problem of population decline could be alleviated by restricting abortion”. It also brands “unjustified” buffer zones as an “ideological attack on freedom of expression”.

There are strong religious elements to the Scottish Family Party when you examine the organisation’s policies on marriage, education, LGBT rights and traditional family roles. Back in 2017, the party said it would “fill the void” left by the mainstream parties’ abandonment of “Judeo-Christian-inspired values of traditional western civilisation”.

The party’s administrator Niel Deepnarain says “God called him to Edinburgh” after studying Christian counselling and ministerial training at Bible college.

He also founded Unite for Education, which aims to introduce Christ-centred education in Scotland, is involved in the campaign group Christian Concern, and is connected to a Christian school in the capital.

The Scottish Family Party has also been criticised in the past for being far right. Mr Lucas was previously a member of Ukip, the pro-Brexit party formerly headed up by Nigel Farage. And both Mr Lucas and fellow party member Niall Fraser came under scrutiny for giving an interview to Patriotic Alternative, a far-right group that has been targeted by a government counter-terrorism strategy.

Regardless, the Scottish Greens insist the buffer zone law is in place 24 hours a day and therefore all of these anti-abortion protests are illegal.

The amendments considered for safe access zones

When Ms Mackay’s Bill was at stage two in the Scottish Parliament, Conservative MSP Jeremy Balfour proposed an amendment to introduce time limits which would have allowed protests to take place when the clinics were closed.

Lothian Conservative MSP Jeremy Balfour expressed concerns over the proposed abortion buffer zone law

However, he did not move his proposals and did not bring them forward at stage three, and therefore this was not included in the final Act.

Mr Balfour worked as an assistant minister in an Edinburgh Baptist church after studying for a theology degree, and ultimately abstained from the final vote on passing Ms Mackay’s Bill.

Ms Mackay said the fact these amendments were not included means the law is in force 24 hours a day.

She said: “Amendments were considered by the health, social care and sport committee at stage two, which would have had the effect of limiting the time period during which safe access zones applied and allowing protests at times when clinics were closed.

“After scrutiny from the committee, these amendments were not moved and were rightly not included in the Act.”

She also branded the Scottish Family Party “extremists”, adding: “Like most laws, buffer zones apply all day, every day. This was made clear throughout the scrutiny and passing of my Act.

Gillian Mackay MSP

“There should always be consequences for people who set out to harass patients and staff.

“Everyone has the right to access healthcare without harassment. Nobody should be forced to pass extremist groups trying to intimidate them and casting judgement on them for their choices.”

Mr Lucas said this assessment was “embarrassing” as it showed Ms Mackay does not understand how her own law works.

The official positions on abortion buffer zones legislation

So how exactly does it work in practice?

The Scottish Government told The Scotsman access zones are in operation 24 hours a day. However, the Government added decisions on enforcement and whether or not the law has been breached are, in the first instance, a matter for Police Scotland and are decided on individual circumstances.

In a statement, a Government spokeswoman said: “Safe access zones are designed to safeguard a woman’s right to access healthcare and to dignity and respect when they need it most.

“For any particular activity to be an offence, it must, for example, be capable of influencing someone’s decision to access or provide abortion services, or impede someone’s access to such services.

“An act carried out which has an impact within the zone when a clinic is closed, but which could continue to have that impact once services are open, could give rise to an offence.

The Scottish Family Party holding an anti-abortion protest within a buffer zone in Castlegate, Aberdeen. | Supplied

“However, this will always be a matter for enforcement agencies and will depend on all the facts and circumstances of the case.”

It is a position that has given some credence to the loophole surrounding night-time protests.

Police Scotland was twice approached by The Scotsman for comment, and asked to explain how officers police buffer zones and respond to complaints of protests within buffer zones.

However, on both occasions Police Scotland declined to comment and said it was a matter for the Government and not them - despite the Government telling The Scotsman it will “always be a matter” for police.

The other abortion protest groups

Other organised groups have vowed to avoid buffer zones when staging their anti-abortion protests.

The organisation 40 Days of Life is carrying out protests in Glasgow to coincide with Lent, but have said the group will not break the buffer zone laws and will stay outside the 200m cut-off boundary.

The group was founded in Texas in 2004 after a Planned Parenthood facility opened in the state, and in subsequent years has carried out nationwide prayer vigils outside abortion clinics and expanded into other countries, including the UK.

The organisation is funded by “a combination of donor contributions and application fees”, but also from “generous benefactors” in the US.

It is difficult to know how some of the other anti-abortion groups like the Scottish Family Party are funded.

The Scottish Family Party has only had one publicly-declared donation - a £8,000 donation made in 2021 by Philip Marten Holden. Mr Holden has stood for election in the Edinburgh area numerous times for the Scottish Family Party.

The Electoral Commission told The Scotsman the reporting threshold for political parties was £7,500, or £1,500 if the donor had already made a donation in excess of £11,180 in the same calendar year. These rates were upped to £11,180 and £2,230 at the start of last year.

Beyond that, the party accepts donations and membership fees online using PayPal and GoCardless.

But whether or not a time limit applies to buffer zones is not the only area where there has been confusion since the law came into effect.

US Vice-President JD Vance. | Jim Watson/Getty Images

The ‘shocking’ US intervention

Perhaps the most notable case was comments made by US vice-president JD Vance in a speech at the Munich Security Conference last month.

The Republican claimed Scots had been told private prayer in their own homes was against the law if they lived within a buffer zone, and were being encouraged to report people who were guilty of “thought crimes”.

"I wish I could say that this was a fluke, a one-off, crazy example of a badly written law being enacted against a single person,” Mr Vance said.

"But no. This last October, just a few months ago, the Scottish Government began distributing letters to citizens whose houses lay within so-called safe access zones, warning them that even private prayer within their own homes may amount to breaking the law."

However, the legislation does not ban private prayer within homes, regardless of whether they are within a buffer zone.

Ms Mackay responded at the time to describe Mr Vance’s claims as "nonsense", adding: "This is shocking and shameless misinformation from VP Vance, who is either very badly informed about what my Act has done or he is knowingly misrepresenting it.”

At the time, the Scottish Greens had demanded First Minister John Swinney ask the White House for an official apology for the “mistruths” spoken by Mr Vance. Mr Swinney declined, saying the matter should be left to Prime Minister Sir Keir Starmer.

The one certifiable conclusion appears to be that abortion clinics - and the enforcement of buffer zones - will remain a key social battleground in the months ahead.