Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The United Kingdom Supreme Court unanimously held that clause 5(2)(a) of Northern Ireland’s Abortion and Safe Access Zones Act is compatible with the rights of freedom of conscience, freedom of expression, and the right of assembly under the European Convention on Human Rights. The Attorney General of Northern Ireland had challenged the Act before the Supreme Court on the grounds that clause 5(2)(a) disproportionately violated the rights of anti-abortion protesters by prohibiting and punishing with a fine of £500 any protest in the so-called “safe access zones” near clinics where abortions are performed. The Supreme Court held that the restriction on the anti-abortion protesters’ rights of freedom of conscience, freedom of expression, and right of assembly was lawful, pursued the legitimate aim of protecting women’s privacy, and was necessary in a democratic society because it was not disproportionate. The Court held that the protests of anti-abortion demonstrators are permitted outside of “safe access zones” and that the restriction safeguards the “compelling social need” to avoid interference and intrusion into the private lives of women who choose to have abortions and health care workers who perform abortions. Further, the Court held that the £500 penalty for violators of clause 5(2)(a) of the Act is not unreasonable or disproportionate.
On March 24, 2022, the Northern Ireland Assembly, which is the legislative branch of Northern Ireland, passed the Abortion Services and Safe Access Zones Act. The main objective of the law is to guarantee the right of women to access legal termination of pregnancy or abortion services. The law also aims to prevent women who want to access legal abortion services from being subjected to pressure from anti-abortion protesters who try to dissuade them from accessing these health services around clinics that perform abortions.
The law meets these objectives by creating so-called “safe access zones” near the places where legal abortion services are offered and prohibiting certain conducts in them. In particular, clause 5(2)(a) makes it an offence to do an act in a safe access zone with intent to influence a protected person, either directly or indirectly under penalty of a fine of £500. Persons protected by the regulation include patients, persons accompanying them and health personnel working in clinics providing health services to perform legal abortions.
The Attorney General for Northern Ireland submitted a question to the UK Supreme Court on whether clause 5(2)(a) of the Act would fall outside the legislative competence of the Northern Ireland Assembly under section 11(1) of the Northern Ireland Act 1998. The Attorney General argued that clause 5(2)(a) was a disproportionate interference with Articles 9 (freedom of conscience), 10 (freedom of expression), and 11 (right of assembly) of the European Convention on Human Rights (ECHR) of anti-abortion protesters.
The President of the United Kingdom Supreme Court, Lord Robert J. Reed delivered the decision of the Court, which was unanimously adopted by the rest of the judges. The main issue before the Supreme Court was whether clause 5(2)(a) of Northern Ireland’s Abortion Services and Safe Access Zones Act violated the rights to freedom of conscience, freedom of expression, and the right of assembly under the European Convention on Human Rights of anti-abortion demonstrators by prohibiting and punishing any demonstration or protest in so-called “safe access zones”.
The Attorney General for Northern Ireland had argued that clause 5(2)(a) of the Act does not provide for any reasonable excuse defense and disproportionately interferes with the right to freedom of expression (Article 10), the right to freedom of conscience (Article 9) and the right of assembly (Article 11) of the European Convention of Human Rights of anti-abortion protesters. The Attorney General considered that punishing protesters who intend to express their opposition to abortion is disproportionate. Furthermore, the Attorney General remarked that according to the Northern Ireland Act 1998, the Northern Ireland Assembly has no power to legislate laws that are incompatible with the human rights of the European Convention on Human Rights.
To begin with, the United Kingdom Supreme Court explained the background of the Abortion Services and Safe Access Zones Act. The Court considered that until recently women were prohibited from having an abortion in Northern Ireland except on two grounds: risk to the mother’s life or serious harm to the mother’s health. The Court pointed out that the situation was very different in the rest of the United Kingdom where women could have an abortion up to twenty-four weeks in accordance with the Abortion Act of 1967.
Likewise, the Supreme Court highlighted that in 2018 the Committee on the Elimination of Discrimination against Women (CEDAW) published a critical report against Northern Ireland in which it concluded that the United Kingdom violated the rights of women living in Northern Ireland. The Court also explained that the Committee made two recommendations to the United Kingdom. The first recommendation was that the United Kingdom should adopt new legislation that expands the reasons or grounds on which women may have an abortion in Northern Ireland. The second recommendation was that the United Kingdom should protect women “from harassment by anti-abortion protestors by investigating complaints and prosecuting and punishing perpetrators” [para. 70]. In addition, the Court explained that according to the CEDAW Report, there is evidence that “women’s access to legal abortion services in Northern Ireland was further impeded by the presence and actions of anti-abortion protesters stationed at entrances to public and private health facilities” [para. 80].
The Court then recalled that it was only on March 31, 2020, that Northern Ireland aligned its domestic abortion regulations with those of the United Kingdom by allowing abortion up to twenty-four weeks.
The Court then examined the content of the Abortion Services and Safe Access Zones Act. The Court held that Clause 5 prohibits certain types of conduct within safe access zones. Next, the Court stated that Clause 5(2)(a) makes it an offense “to do an act in a safe access zone with the intent of, or reckless as to whether it has the effect of influencing a protected person, whether directly or indirectly” [para. 106]. The Court explained that the Act defines a “protected person” as any person who needs access to treatment, information, or counseling in order to obtain an abortion. The Court added that accompanying persons and health personnel are also “protected persons”. The Court then considered that according to paragraph 4 of clause 5 an offense “is punishable on summary conviction by a fine not exceeding level 2 on the standard scale. The maximum punishment is therefore a fine of £500” [para. 106].
Next, the Supreme Court examined whether Clause 5(2)(a) of the Act was outside the competence of the Northern Ireland Assembly and if that rule violates the rights to freedom of expression, freedom of conscience, and the right of assembly of anti-abortion protesters.
The Court held that not every type of anti-abortion protest is protected by the European Convention on Human Rights. In this regard, the Court stated that “some of the behavior by protesters which is described in the material before the court, such as spitting at individuals, chasing them, threatening them, assaulting them, and subjecting them to verbal abuse, falls within the ambit of clause 5 but is not protected by articles 9, 10 or 11” [para. 111]. However, the Court recognized that clause 5(2)(a) could restrict some of the rights of anti-abortion demonstrators from certain types of behavior “such as holding a vigil, praying, and engaging in other non-violent demonstrations” [para. 112]. The Court held that these restrictions are legitimate and compatible with the rights recognized in the European Convention on Human Rights and, accordingly, affirmed that the law was enacted within the powers of the Northern Ireland Assembly.
First, the Court held that Clause 5(2)(a) imposes a restriction on the exercise of certain rights by means of a “law”. The Court added that “the extent of any safe access zone is precisely defined, and is a matter of public notice in accordance with the Bill” [para. 113].
Second, the Court mentioned that Clause 5(2)(a) of the Act pursues a legitimate aim. In this regard, the Court affirmed that the law guarantees that women have access to medical advice and services for the legal termination of pregnancy in conditions that respect their dignity and privacy. At the same time, the Court added that the law also aims to protect the staff working in clinics that perform abortions so that they can go to their place of work without being harassed, intimidated, threatened, or mistreated. The Court recognized that “in terms of articles 9(2), 10(2) and 11(2) of the Convention, the aims of the Bill answer to the description of ‘the prevention of disorder’ (or, in article 9(2), ‘the protection of public order’), ‘the protection of health’, and ‘the protection of the rights and freedoms of others’” [para. 114]. In addition, the Court added that Clause 5(2)(a) protects access to health care in conditions of privacy and dignity and the right to pursue employment, both of which are protected by Article 8 (right to privacy) of the European Convention on Human Rights.
Third, the Supreme Court examined whether the restriction imposed by Clause 5(2)(a) is “necessary in a democratic society”, that is, whether the restriction is proportional according to the legal standards of the European Convention on Human Rights.
In order to analyze the proportionality of Clause 5(2)(a) the Court had to decide (i) whether the ends of the rule are sufficiently important to justify a restriction on a fundamental right; (ii) whether there is a rational connection between the means chosen and the end pursued; (iii) whether there are less restrictive alternative means that achieve the ends pursued; and (iv) whether there is a fair balance between individual rights and the general interests of the community, including the rights of others.
To question (i), the Court found that the protection of the right to privacy of patients and health care workers under Article 8 of the ECHR is sufficiently important to justify restrictions on the rights of anti-abortion protesters derived from Article 9, 10 and 11 of the Convention.
To question (ii), the Court held that “the restrictions imposed by clause 5 have a rational connection to the purpose of protecting the privacy and dignity of women and staff accessing abortion facilities, and thereby promoting public health” [para. 113]. The Court affirmed that the regulation contains a rational response to a serious and severe public health problem and prevents undue intrusions from violating the privacy of women seeking a legal abortion.
To question (iii) the Court considered that the Attorney General’s argument that Clause 5 should contain a “reasonable excuse” is not valid as it would undermine the effectiveness of the law. The Court held that “if such a defence were available, protesters would claim that they were excusably ignorant of the fact that the person whom they approached was a protected person, or that they did not realise that they were within a safe access zone, notwithstanding the provisions of clause 7 relating to notification of the public” [para. 123].
To question (iv), the Court held that the restrictions in Clause 5 made a fair balance between the rights of women seeking an abortion, the right to work of health professionals, and the rights of the anti-abortion protesters. The Court emphasized that “there is a pressing social need for such restrictions to be imposed, in order to protect the rights of women seeking treatment or advice, in particular, and also in the interests of the wider community, including other patients and the staff of clinics and hospitals” [para. 154]. The Court noted that according to the evidence presented in the case, there is a very sensitive context in Northern Ireland that obstructs women from actually performing legal abortions. In addition, the Court recognized that women’s right to privacy is of particular importance and protects their right to have abortions without harassment or intimidation. At the same time, the Court noted that anti-abortion protesters may exercise their rights under Articles 9, 10, and 11 of the European Convention on Human Rights in any other place outside the “safe access zone” designated by the authority. At the same time, the Court considered it reasonable and proportionate that the penalty imposed by the law should be a fine of up to 500 pounds.
For all these reasons, the Court concluded that Clause 5(2)(a) of the Abortion Services and Safe Access Zones Act is compatible with the rights under the European Convention on Human Rights of those seeking to express their opposition to abortion services in Northern Ireland and, accordingly, that the Northern Ireland Assembly did not exceed its legislative competence.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the United Kingdom Supreme Court limits the right to freedom of expression and the right to peaceful assembly of anti-abortion activists who want to protest in the areas surrounding abortion clinics by imposing a fine of up to 500 pounds. The United Kingdom Supreme Court ruled that clause 5(2)(a) of the Northern Ireland Abortion Services Act, which prevents anti-abortion demonstrators from protesting in “safe zones areas,” is compatible with the European Convention on Human Rights. For the Court, the rule only limits the rights to freedom of expression, freedom of conscience, and the right of assembly in order to protect the privacy of women seeking abortions and health professionals at abortion clinics. The Supreme Court weighed the rights at stake against the context of systematic protests aimed at preventing women’s right to legal abortion in Northern Ireland. While the decision limits the right to freedom of speech and assembly, it does so in pursuit of protecting the right to privacy under Article 8 of the European Convention on Human Rights and only imposes a fine of £500 on those who infringe the ban within so-called “safe access zones”.
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