by Thomas Mitchell
In September last year, the Abortion Services (Safe Access Zones) (Scotland) Act 2024 came into effect. This Act establishes safe zones of 200 metres in all directions around clinics offering abortion services, within which special protections apply to patients and staff accessing the clinic. The purpose is to prevent anyone from stopping women and girls from getting abortions, or from trying to make them change their minds. A similar law came into effect in England and Wales shortly after, on 31st October, as Section 9 of the Public Order Act 2023. These Acts are largely in response to pro-life protests around clinics, which can be intimidating to those seeking abortion services.
In both cases, there are three ways of breaking the law: influencing a person’s decision, impeding their access, and causing them distress. The latter two are to be expected from a law with this purpose, criminalising obstruction, harassment, and abuse. The first, however, is more interesting. The aim is to ensure that the decision to have (or to not have) an abortion is entirely a woman’s own, so the implicit assumption is that any influence from others reduces the extent to which it is their own.
But this assumption is a mistake and is counterproductive to the intentions of the lawmakers.
There are many kinds of influence which make another’s choice less free. Obvious examples include manipulation, trickery, deception, pressure, coercion, and intimidation. These tactics are ways of taking away another’s choice, sometimes without them even realising. Presumably, it was these kinds of influence that the lawmakers had in mind with their legislation.
However, there are also many ways of influencing someone that do not take the choice away from them and can even empower them to make a decision that is more their own. By this, I mean a decision that reflects their values and aligns with their aims; one which, with hindsight, they are likely to consider a good decision. This is hardly a precise account of what makes a choice autonomous or free, but should suffice for current purposes. Educating, informing, advising, encouraging, playing devil’s advocate with the options, or even just acting as a sounding board for someone considering their decision, are examples of this more positive, freeing type of influence. Under the new legislation, these would also be prohibited within the safe zones.
Imagine the following case. Suppose that a person considering an abortion has a conversation about it with her partner, the father. It is likely that he might say various things that would have an impact on her decision. For instance, he might assure her that, should she continue the pregnancy and give birth, he would do all he could to support her and be a good parent. But he might also mention that his financial situation is just as precarious as hers and so money would be extremely tight. These are relevant factors that might sway her decision. Or again, suppose that she talks to an experienced friend or relative who has children and has also had an abortion, who provides her with useful information about her decision. For example, she may be told about the various discomforts of continued pregnancy and the needs of a newborn child, as well as details of the abortion procedure. She is likely to take such things into consideration in deciding what to do. If such conversations happen to occur within the boundaries of a safe zone (though not when she is actually accessing abortion services, for which there is an exemption), then her interlocutor violates the law. Yet surely, neither of these are the kinds of interactions that ought to be criminalised. More generally, if a pregnant woman asks anyone for information, or advice, or an opinion within the zone and gets it, then the law has been broken. Unwanted advice may often be problematic, but, crucially, neither Act distinguishes between solicited and unsolicited advice.
The broader point is this. Reasonable people take into consideration all the factors they deem relevant when making an important decision. Not only do those relevant factors influence their decision, they make the decision freer and more their own. These relevant factors may have been brought to their attention by other people. By outlawing influence within safe zones, the Acts therefore risk reducing the ability of women to make their own choices, contrary to its supposed purpose.
Perhaps because of problems like this, several exceptions are highlighted in the legislation. As briefly mentioned above, someone accompanying a patient trying to access abortion services is exempted, as is anyone providing or facilitating those services or providing other health care. But this does not cover cases such as those mentioned above. There are no exceptions for those who will be deeply affected by the woman’s decision, such as her partner or her family, nor generally for those whose advice she seeks.
The Acts undoubtedly aim to get rid of the ‘bad’ influences – anything that takes a woman’s choice away from her. But the lawmakers have been too heavy-handed, legislating against the ‘good’ influences as well. Ultimately, whether someone is arrested depends on the interpretation of a police officer and not the intention of a lawmaker. Whether anyone will actually be arrested and even prosecuted for answering a woman’s questions, for giving her advice that she has asked for, or for having an honest conversation about her options, time will tell. This disturbing possibility, however, has been left wide open.
Some may wonder why this is relevant, when what is actually happening is intimidation and abuse. Protesters outside abortion clinics are not usually giving information impartially or restricting themselves to responding to requests for advice. Why be so concerned about outlawing influences that enhance freedom when the real-life cases do anything but? The answer is threefold. First, these problematic influences are adequately covered by the other two clauses of the Acts. If ‘influence’ is just intended to mean impeding access or causing distress, then why include the first clause at all? Whether they realised it or not, those who wrote the law targeted more than just the intimidating protesters. Second, circumstances change and laws will not always be used as their makers intended, which is why wording is so important. Maybe right now the main way in which women and girls are influenced around abortion clinics is by harassment and intimidation, but maybe (and hopefully) more positive and freeing forms of influence will come to the fore in future. These Acts would still criminalise those kinds of influence, when they should be encouraged to replace influences that reduce freedom.
Thirdly and finally, part of my purpose here has been to highlight the problems associated with legislating for influence more generally. The cases I have mentioned above may seem unlikely, but that does not undermine the point they illustrate. Whether the salient matter is abortion or some other important choice, it is far too crude to simply criminalise influence and expect that to make people’s decisions more autonomous. If lawmakers want to ensure that someone’s choice is really their own, they need to be more careful and precise about what they are targeting. Being free of influence does not entail being more free.
If such an Act just establishes safe zones of 200 metres and nothing more I think it is proportionate. The purpose of such Act is to safe the public order and also the patient’s privacy. It does not break the freedom of speach or another human rights essentially. It is similar like the laws prohibiting the promotion of the funeral home services in the hospital areas. Or the laws prohibiting the protests or gathering around the building of courts. Therefore I think the proportionality is essential, i. e. the Act shall have the legitimate aim and the ways how to achieve this aim shall breach the rights only if it is necessary.