Safe-access zones at abortion clinics pass constitutional muster

B.C. law on which Alberta’s is modelled has withstood challenges, Joyce Arthur writes.

There’s been much misinformation in the debate over Bill 9, the proposed safe-access zone law to protect Alberta’s abortion clinics. Surprisingly, those who oppose the bill seem unaware that British Columbia has enforced a very similar law since 1995 and it’s been held to be constitutional.

Since the Alberta law was closely adapted from B.C.’s law, we can be confident it will also meet Charter scrutiny. In fact, based on the legal soundness of the B.C. law, similar laws have recently been passed in Newfoundland and Labrador, Quebec, and Ontario.

Safe-access zone laws do infringe on free speech, but it’s not a blanket restriction. Protesters are free to protest anywhere except within a narrow zone around facilities that provide abortion. This is called a “time, place and manner restriction.” Also, a key part of our Charter of Rights and Freedoms, Section 1, allows fundamental rights like freedom of expression to be limited in a reasonable manner to protect other rights.

The B.C. Court of Appeal ruled in 2008 (R. v. Spratt, 2008 BCCA 340) that the Access to Abortion Services Act is constitutional because women’s right to access a necessary medical treatment in an atmosphere of privacy, safety, and dignity takes precedence over freedom of expression in that specific context. When the protesters appealed to the Supreme Court of Canada, it declined to take the case, meaning the law stands as constitutional.

The B.C. law has successfully deterred protesters and protected people at clinics for 23 years. After the law passed in 1995, protesters stopped coming to one clinic, while at another clinic, protesters had to stand across the street and could no longer approach or identify patients entering the clinic. B.C. clinics have reported that the law continues to work very well.

Safe-access zones are important because they ensure the safety and privacy of providers, staff, and patients as they come and go from the facility. The zones protect the right to access health-care services and safeguard patients’ health by reducing the risk of complications from emotional distress (caused by the protesters) just before undergoing a medical procedure. Further, the zones foster community peace by reducing neighbourhood nuisance and noise and other hazards, and limiting the risk of violence and vandalism.

Some opposed to the Alberta bill claim that existing laws against assault and harassment should be used instead. This won’t work because it requires people to press charges and testify in court. Women going to a clinic for a procedure as private and stigmatized as abortion virtually never pursue criminal charges.

Second, it’s not just criminal activities that pose a problem — the mere presence of protesters causes anxiety, fear, and confidentiality concerns for patients. Given the sustained and intrusive nature of anti-choice protests outside Alberta clinics, women and transgender people deserve the ongoing protection and privacy that only a safeaccess zone law can provide.

An amendment to the Alberta bill allows the 50-metre facility zone to be expanded to 150 metres if needed. This is justifiable and is already established practice in other jurisdictions. The Morgentaler Clinic in Toronto has had a 150-metre private injunction for decades. Ontario’s law allows facilities to apply for up to 150-metre zones if required.

In Australia, four states have passed laws with 150-metre zones. Legal experts said this distance is reasonable because staff were often followed to local shops and subjected to verbal abuse, and women and their support persons were followed to and from their cars and public transport.

Alberta’s NDP government should be congratulated for its courage in bringing forward this valuable bill, despite the misinformation from people who oppose abortion rights and want to make access as difficult as possible. The refusal of UCP members to debate the bill in the legislature and their disgraceful walkouts are an insult to everyone who voted for them, but especially to the women of Alberta whose rights and safety are being disrespected.