When constitutional rights are in conflict
By Jerome Veldsman
In Clubb v Edwards; Preston v Avery, a decision of the the High Court of Australia (the apex Court) on 10 April 2019, the court dealt with two substantially similar cases concerning abortion rights and freedom of speech.
By legislation, the States of Victoria and Tasmania decriminalised the termination of pregnancies by artificial means in certain circumstances. In addition, the legislation provides for the protection from hindrance of individuals at premises where terminations are available. In brief, the legislation prohibits, in respect of a person approaching or departing from such premises:
“besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding” that person; and
“communicating by any means in relation to abortions in a manner that is … reasonably likely to cause distress or anxiety” with that person,
in an an area within a radius of 150 metres of such premises.
Ms Clubb was found guilty of contravening the Victoria statute by handing out anti-abortion pamphlets in front of a fertility control clinic.
Mr Preston was found guilty of contravening the Tasmania statute by displaying anti-abortion placards in front of a specialist gynaecology centre.
Both appealed their convictions, challenging the constitutionality of the legislation on the basis of freedom of communication on governmental and political matters. The issue for determination by the High Court was whether the prohibitions on communication were justified by reference to a legitimate purpose.
The appeal was heard by six Judges (it is uncommon for an appeal to an apex Court to be heard by an even number of Judges). The six Judges produced four different opinions, with the majority dismissing the appeal:
“[T]he purpose of the challenged legislation relates to the preservation and protection of the privacy and dignity of women accessing abortion services.”
“It is an important part of Mrs Clubb’s argument that the communication prohibition discriminates against her side of the debate about abortion. A law that burdens one side of a political debate, and thereby necessarily prefers the other, tends to distort the flow of political communication. Contrary to Mrs Clubb’s contention that the communication prohibition is aimed at, and biased against, the anti-abortion viewpoint, the prohibition is not directed exclusively at anti-abortion communication. In truth, the prohibition is viewpoint neutral.”
“Those wishing to say what they want about abortions have an unimpeded ability to do so outside the radius of the safe access zones. The 150m radius of the safe access zones serves merely to restrict their ability to do so in the presence of a captive audience of pregnant women seeking terminations and those involved in advising and assisting them.”
It is conceivable that similar legislation in South Africa will also pass constitutional muster.