By Tania Penovic and Ronli Sifris
Introduction
On June 3rd the Health Care (Safe Access) Amendment Bill 2020 was introduced into South Australia’s House of Assembly. The aim of this Bill is to establish “health access zones”(commonly known as “safe access zones”) around abortion clinics, prohibiting anti-abortion conduct from taking place with a 150m radius of premises at which abortions are lawfully performed. If this Bill passes, it will bring South Australia in line with all other Australian jurisdictions (except for Western Australia) with respect to the protection of women seeking to access the full range of reproductive health care. Such an initiative is to be commended and supported, particularly given that in Clubb v Edwards; Preston v Avery the High Court confirmed the constitutionality of safe access zone legislation (specifically in this case the Victorian and Tasmanian laws).
In the past few weeks, there has been some discussion regarding whether the Bill should be amended so as to permit silent prayer within the health access zones. As human rights academics and researchers who have conducted in-depth research into this issue, we strongly oppose such an amendment for the reasons set out below.
Silent prayer should have no place within health access zones
Between March 2017 and December 2019, we conducted nationwide qualitative empirical research which examined the experience and impact of anti-abortion conduct outside Australian clinics and the effectiveness of safe access zone laws. As such, we are familiar with the various forms of conduct which take place outside abortion clinics and believe that silent prayer outside abortion clinics has a harmful impact on patients seeking healthcare services. It causes shame, stigmatisation and a sense of being watched which undermines privacy and dignity in the context of access to lawful medical services. Silent prayer should not be permitted within health access zones.
Unlike other picketing activity, silent prayer is not aggressive or individually targeted. But it is clear from our research that the presence of individuals engaged in silent prayer outside clinics has the effect of shaming and stigmatising women and undermining their privacy and dignity. The presence of people praying outside clinics has been described by our interviewees as deeply judgmental and distressing for women seeking access to reproductive health care services.
The distress caused to patients by such conduct was described in the following terms by Victoria Dolphin, Nurse Unit Manager at Marie Stopes in the Australian Capital Territory:
We’ve had one woman that’s come in very distressed that ‘a man was out there praying for me, I know he was praying for me.’ And I think it’s because of that self-perceived shame as well, and I think that’s the real shame about patients in this setting, is they judge themselves before they even get here. And to have to face that they feel even more judged even if they’re not approached, just from that visual.
Ms Dolphin observed that persons engaged in prayer were ‘not aggressive’ and were ‘older men’ who were ‘reading their bibles with their rosary beads.’ Their presence heightened the shame and stigmatisation experienced by women accessing abortion services.
The shaming and stigmatisation associated with such conduct was a common theme in our interviews. A general practitioner working in regional Victoria spoke of the sense of being judged and shamed in the following terms:
You only need five people, or even three people, standing there … they’re men of a particular age and I think my gosh we know that men are a symbol in many cases… of authority in our society. I think that having an older man standing there, I think they do to a degree feel that’s the whole of society that’s judging them. Especially the young ones are not so good at making those rational assessments of the true situation.
Susan Fahey, the former CEO of Women’s Legal Service Tasmania, described prayer activity occurring outside clinics as being intended to shame and stigmatise women. She elaborated as follows:
I respect people’s right to religion and other things but I reject quite strongly anyone who says praying is not intended to shame and not intended to whatever-it’s highly judgemental and it’s highly upsetting to the people who have to pass that.
Prayer and stigmatisation in the United Kingdom
Our conclusions with respect to shaming and stigmatisation are consistent with research undertaken in a number of cities in the United Kingdom: see Pam Lowe and Graeme Hayes, ‘Anti-Abortion Clinic Activism, Civil Inattention and the Problem of Gendered Harassment’, 53(2) 2019 Sociology 330-346.
Lowe and Hayes concluded that those engaged in silent prayer understand their own actions to be supportive and empathic but that their conduct undermines women’s privacy and has a stigmatising effect. They observe that ‘[w]hile their stated objective might be praying to end abortion’ their conduct outside clinics constitutes a ‘deliberate attempt to deter women from exercising their reproductive rights, further contributing to the stigmatisation of abortion’. Such conduct was experienced by women seeking abortions as harassment and was found to undermine women’s expectations of privacy in accessing lawful medical services. Lowe and Hayes observe as follows:
While it is the case that anyone could see people entering and exiting a building, anti-abortion activists who stand outside clinics are expressly there to draw attention to the building as part of their mission to bear witness. The harassment that women feel, we argue, stems from the presence of activists at clinic sites, rather than from their precise conduct…The failure by anti-abortion activists to civilly disattend directly challenges women’s expectations of privacy and confidentiality, and makes their access of a specific reproductive healthcare service material and public. Moreover, the context of abortion stigma heightens the discrediting that some women feel when seeking services.
What about freedom of religion?
The freedom to manifest one’s religion is not absolute. Under international human rights law, the freedom to manifest one’s religion may be subject to limitations prescribed by law which are necessary to pursue a legitimate aim, including the protection of the fundamental rights and freedoms of others. The presence of individuals praying outside abortion clinics undermines women’s fundamental rights. It undermines the right to privacy and dignity. It undermines their right of access to healthcare services and to the highest attainable standard of health. It sends a message of shame and stigmatisation to women accessing lawful medical services.
If South Australia is serious about protecting women’s privacy, well-being and dignity in the context of access to the full range of reproductive healthcare services, it should prohibit all forms of anti-abortion conduct outside of clinics, including silent prayer.
Both Dr Tania Penovic and Dr Ronli Sifris are Senior Lecturers at Monash Law School and members of the Castan Centre for Human Rights Law.
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This post was originally published on Castan Centre for Human Rights Law.
