Freedom to assemble peaceably and to protest peacefully are fundamental democratic rights

The View

With all the media attention focusing on climate change targets and pension age, a less-discussed aspect of the recently agreed programme for government between Fine Gael, Fianna Fail and the Green Party is the commitment to legislate for exclusion zones around hospitals where abortions are now being performed.

This isn’t exactly a new idea: Minister for Health, Simon Harris, had already stated that he was committed to bringing in exclusion zones – or no-go areas for pro-life people.

In January of this year, apparently oblivious to the irony of his statement, Harris promised to expand further the “vital” service of abortion in this country. Responding to reports of a pro-life vigil outside the National Maternity Hospital in Holles Street, the Minister, with narrowed eyes, said “how dare you?” to those taking part in the vigil.

Harris accused those at the vigil of intimidating and harassing women and their partners as well as staff. However, footage posted by a pro-abortion doctor in the hospital showed a group of people assembled peaceably outside the hospital, apparently praying, some carrying white crosses. There was no evidence that they were trying to intimidate or harass anyone, something that Garda Commissioner, Drew Harris, has confirmed in relation to pro-life vigils generally.

Consultation

Branding the individuals “anti-democratic” and “wrong”, Harris said he was committed to legislating for exclusion zones. Fine Gael’s prospective coalition partners seem to agree.

Last year the Taoiseach, Leo Varadkar, told the Dáil that, following consultation with the Attorney General, legislating for exclusion zones was legally problematic. Indeed, Harris himself said that it was not straightforward but hinted that they were looking to model the law on Britain’s recent introduction of exclusion zones.

What does Irish law say about such matters? Well, the right to freely express one’s opinion, to assemble peaceably and to form associations are rights that are considered so important in Irish law that they come under the heading ‘Fundamental Rights’ in the Irish Constitution.

A law that would impose exclusion zones would offend against all three of these rights. First, the right to freely express one’s opinion means that even if a Government minister thinks you’re ‘wrong’, you are entitled to express your wrong-headed ideas. You are even entitled by law to express your view that he might be the one who is wrong.

The rights to assemble peaceably and to protest peacefully are fundamental democratic rights, and not in any way ‘anti-democratic’, as wrongly described by the Minister. The Government’s extraordinary silence in relation to the recent Black Lives Matter protests in Dublin, despite the apparent contravention of public health advice in relation to large gatherings, suggests that our leaders will acknowledge the importance of the right to protest – provided it is the sort of protest to which they are sympathetic.

When it comes to pro-lifers, however, Harris and others of his persuasion will try to argue that their very presence outside a hospital is enough to offend against the rights of those entering the building. Ergo, they should be prevented from protesting in that area. After all, they say, the right to assemble is not an unlimited right.

But following that logic through, no one would ever be able to protest, because someone will always be offended. The fundamental rights of those who had been keeping vigil outside clinics and hospitals around the country, to express the view that babies’ lives matter too, would be trumped by the rights of the very people destroying those same children.

It would seem that the new Government will have to rely on the ‘morality’ clause in the Constitution”

The right to form associations is also fundamental to a democracy. It is the mark of a tyrannical regime that it prevents people from meeting and associating with other like-minded citizens. That is the way governments lose control: when citizens start thinking for themselves and are buoyed up by each other’s company into action.

The rights mentioned are indeed not unlimited; they are subject to considerations of public order and morality. Given that the Garda Commissioner has stated that there are no public order issues with the pro-life vigils, it would seem that the new Government will have to rely on the ‘morality’ clause in the Constitution.

How does a group of people gathered outside a clinic saying the rosary offend against public order or morality?”

The idea that public morality could demand that people should be prevented from peacefully praying outside buildings in which living babies are being dismembered is so grotesque that it is hard to believe it does not come from some dystopian fantasy. Yet this is the country in which we live.

Lastly, there is a specific provision, Article 44 of the Constitution, which says that the State shall respect and honour religion. Furthermore, freedom of conscience, and the free profession and practice of religion are, again subject to public order and morality, guaranteed to every citizen. How does a group of people gathered outside a clinic saying the rosary offend against public order or morality? And how does the idea of an exclusion zone that would prevent people from praying in certain places “respect and honour religion”?

The Constitution also states clearly that the State shall not impose any disabilities or make any discrimination on the grounds of religious profession. But unless the State were to impose a blanket ban on any kind of protest outside hospitals – in which case anyone protesting against the likes of the Cervical Check scandal or any other health scandal would also be banned – pro-life Catholics praying outside hospitals would be targeted specifically. In other words, the State would be imposing a disability on Catholics or others wishing to pray outside these hospitals on the basis of their religion.

The attack on the fundamental rights of pro-life protesters is clear enough. Less obvious, perhaps, is the wrong exclusion zones would perpetrate against women contemplating abortion. The real idea is to insulate them from anything that might cause them to question their actions, or alert them to the fact that, were they to choose differently, there would be people waiting with open arms to help and support them.

Ultimately, exclusion zones are about excluding choice. When it comes to women who have decided, perhaps with hesitation, on abortion, their choice, once chosen, must not to be changed.

Their consent, once given, cannot be allowed to be revoked.

We hear a lot of talk from the likes of Minister Simon Harris about freedom of choice, but how can you have a free choice when you don’t know all the options open to you? If you are poor and desperate and cannot see a way out, how is your choice truly free, if removing those obstacles would make you decide on another course of action?

As is always the case in law, fundamental rights are important only when the Government wants to deny them to you – when the majority is against you. The result of the referendum suggests that the wind is at the back of those pushing for exclusion zones. This makes it all the more important that, if the Government gets its way in legislation, the courts come to the defence of the pro-life minority. And to the defence of those women who, if they could see that someone cared, that someone was prepared to offer real help to them and their baby, that someone was praying for them and their baby, might choose life instead of death.