Yesterday, New Years Day, saw a small group of pro-life protestors conducting some form of silent vigil/protest outside the National Maternity Hospital in Dublin, an action that provoked anger from consultant obstetrician Dr. Mary Higgins:

Dr. Higgins was a prominent voice in favour of the repeal of the 8th amendment and the legalisation of abortion, so her opposition to such protests is not surprising. Nor is it particularly surprising that Senator Catherine Noone immediately reacted by declaring a ban on such protests, at least in the vicinity of facilities that carry out abortions, a “major priority” for 2020, adding that there was a “risk” that such a law might never be passed by a new Government:

It’s worth pointing out, of course, if you are in favour of such legislation, that the Government has been working on it, or at least professing to work on it, for well over 18 months. That it has not been produced and enacted suggests that it’s not quite as easy as simply passing a law, which speaks well of our constitution.

Constitutions, of course, are designed to protect the people from bad Government decisions by placing a hard limit on the things a Government can do. The Irish constitution, for example, protects the right to property, so the Government cannot simply pass a law taking homes from people who have a spare house and giving them to the homeless. Equally, the Government, as things stand, have to be very careful about interfering with the right to political protest, and speech.

Exclusion zones are a terrible idea. Saying so, by the way, is not the same thing as saying that these protests are a good idea, or that they do not traumatise people. It is a good idea, usually, when somebody says that something upsets them, to believe that they are being truthful. It does opponents of exclusion zones no good whatsoever to claim, believe, or assert that people who say they are upset by their protests are just pretending to be upset to damage the pro-life cause. They are upset by them, and they want them to stop.

That, of course, isn’t a good reason for passing a law. Lots of people are genuinely upset by lots of things. Animal lovers are upset by hunting. Busybodies are upset by smoking or vaping or drinking. Religious people are upset by blasphemy. If being upset by something was reason to ban it, very few activities would remain legal.

Indeed, many forms of protest are very upsetting to different people. It is legal, after all, to stand at the entrance to Leinster House and hold up a big sign saying “Fianna Fáil/Fine Gael/Labour are scum”. It’s not a very nice thing to do, but if it’s a peaceful protest, you have every right to tell some ambitious 23-year-old going in to work for a Senator that in your view, they are awful. Upsetting them, to some extent, is the very point of the protest. Again, that doesn’t mean it’s the right or popular thing to do, but it is a fundamental civil liberty.

Aside from all that, though, there are very good practical reasons why exclusion zones are a terrible idea.

For one thing, drafting such a law is next to impossible unless you just ban all protests outside hospitals or medical facilities. You could, in theory, limit it to medical facilities that carry out abortions, but doing so would be the equivalent of putting a giant neon sign up in front of those facilities saying “abortions done here”. There is no public list of those doctors or hospitals that carry out abortions, presumably because many of those who are doing so want to keep it hush-hush. If you ban people from doing something – in this case from standing somewhere – then you have to tell them exactly where they are not permitted to stand, which means telling them exactly who and where is carrying out abortions.

And if you do, on the other hand, ban protests outside medical facilities, what happens next time there is a nurses strike? Or the next time some rural hospital is downgraded? Do the nurses, or the locals, have to march around with their placards 500m away from their local hospital?

Because a major issue with this proposal is defining exactly what a “pro life protest” is. It seems vanishingly unlikely that the courts would uphold a ban on expressing one particular idea at one particular location, as that would be overt discrimination on political grounds. For example, if pro-choice activists wanted to hold a demonstration of support and thanks for abortion doctors outside a hospital, would that fall under the auspices of the proposed legislation? If it does not, or if strikes by nurses are not, then the Government isn’t regulating protest, so much as it is regulating the expression of a single idea. You’re then into the realm of censorship. Here is the aforementioned Professor Higgins, by the way, joining a pro-choice demonstration outside her own hospital:

All of these, by the way, are the reasons this legislation is proving so troublesome. Because even though this is a terrible idea, it remains, for Fine Gael, an absolutely vital idea. The middle class liberals who voted for repeal in overwhelming numbers, and who disdain what they see as the cruelty of pro-life demonstrations, are an absolutely key demographic for FG in the election that is almost upon us. These people feel very little affinity to Fine Gael, and are as likely to vote Green or Social Democrat as they are to re-elect Mr. Varadkar. The Taoiseach needs something to bind them to him in common cause.

Fine Gael has managed to contain the disaffection of these voters on issues like health and housing by standing firmly with them on sugar-high issues like same-sex marriage and abortion. Simon Harris might be a terrible minister for health, but his progressive credentials are impeccable. If you’re a liberal voter, then you have a health minister who hates all the right people. Raising this issue before an election, and getting voters to focus on the true enemy – religious conservatives – is a good way of winning votes.

The legislation is unnecessary, and terrible, and likely to be an absolute mess. But that’s an entirely secondary consideration right now – there’s an election on, and the path to winning means getting liberal voters all angry and self-righteous. It won’t really matter if they have to let them down gently a little further down the road.