Government finally admits: “Safe Access Zones” were never workable

The funny thing about the Government’s Friday evening revelation that they have, for all intents and purposes, abandoned the idea of legislating restrictions on the right to protest outside hospitals, surgeries, and other places where abortions are carried out, is that it came as such a shock to the Irish media, and pro-choice activists. To read the reaction to the news over the weekend, you might be forgiven for thinking that the most liberal Government in the history of the state had chosen to side with committed pro-lifers as a matter of choice, rather than the truth, which is that the proposal was always unconstitutional. The Irish Examiner, for example, didn’t take it well at all. Deputy Political Editor Elaine Loughlin was not amused:

“The quiet shelving of legislation to provide for safe access zones is yet another example of how the State fails to protect women.

It can be difficult to get angry when you have been fatigued by countless abuses, blunders and a complete lack of understanding and empathy from those in power.

From the CervicalCheck scandal, to ongoing maternity hospital restrictions, the treatment of mother and baby homes survivors and now this, women are just exhausted.

We have been cajoled, insulted and, frankly, lied to. It’s infuriating and it’s heartbreaking.”

She is correct that pro-choice activists like herself, and her newspaper, have been “lied to”, but that’s mainly because they were very eager to be lied to, and unwilling to see what was in front of their own faces. “Infuriating and heartbreaking” it may be, but surprising it should not be. Article 40.6 of Bunreacht na hEireann explicitly protects the rights of citizens to “freely express their opinions” and to “assemble peaceably and without arms”. Drafting the legislation was always going to be a legal minefield, then, for a number of reasons:

First, the “safe access zones” legislation was going to be unique – not in that it banned protests at a particular place, but because it banned protests on a particular subject. For example, it would have been an absolute mess if they had simply used – as some have suggested – the electoral law precedent which bans protests at polling stations. Under that law, you cannot protest or campaign outside a polling station on election day. Why not, then, some suggested, simply copy and paste it and ban protests outside hospitals or GP surgeries?

The answer is that such a ban would have to encompass all protests – not just protests about abortions. So, we would have had the absurd spectacle of striking doctors and nurses, seeking better pay, being banned from picketing their own places of work. A law which specifically said “you can protest pay and conditions outside a hospital, but not the practices that go on within the hospital” would have been discriminatory. How, for example, do you craft a law which bans protesting abortion, but permits protests against the covid restrictions which prevent expectant mothers from being accompanied by their spouses when in for treatment? That’s been a real hot topic, of late, and involves protests outside, or at least near, hospitals.

No, what was painted as a ban on protests in a particular place would have to, in fact, be a ban on protests about a particular subject. And that would run afoul of the constitutional protection on “freely expressing your opinion”. If one person can freely express their opinion in a particular place, and another person cannot, simply because of what their opinion is, that’s a slam dunk case of unconstitutional law-making.

Does anybody really believe that this law would not already be on the statute books if it was easy to do? This is a Government, after all, which prides itself on absolute hostility to pro-lifers, to such an extent that it is a core part of their brand. Drafting this legislation, were it possible, would be the easiest of vote-winners for them: It would guarantee, as we see with the Examiner, good media coverage. The protests in question are not massively popular with the general public, either, and the pandemic has taught us that restricting the rights of unpopular minorities is not something the public worries too much about. It is fair to assume that anybody who defends such protests is not a Government voter anyway. All of the political incentives are there to enact such legislation, illiberal and abusive though it may be.

No, this isn’t a matter of choice: It is a matter of cold, hard, reality.

The astonishing thing here, really, is that nobody warned the Government before they made this promise to pro-choice activists. They promised something they could never deliver, and now they find themselves in an absolute mess, again, over abortion. People who are pro-life, and care about it, were never going to vote for them anyway, after 2018. Now they’ve gone and alienated the hardline pro-choicers, too.

They’re on a real roll at the moment, no doubt about it.

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