Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

There can be no justification for the kinds of protests we have seen or indeed any protests outside healthcare facilities. The experience of accessing termination services can be daunting enough without being bombarded by distressing images, pseudo counselling attempts or chants, or crosses, for that matter. Not only can these types of protests cause mental anguish but they can also act as a genuine barrier to accessing services, adding to an already long list of barriers to timely and local abortion services.

We must not lose sight of the impact of these protests or the threat of such protests on service provision and staff. In July 2022, Dr. Camilla Fitzsimons from Maynooth University published research on the experience of 75 termination service providers in Ireland. Eighty-four percent of these providers worked in primary care, while the remaining 16% worked in maternity hospitals. Forty-five percent of those surveyed reported protests outside their place of work, with 5% reporting daily protests. If anybody thinks these are unusual events, they are certainly not. They can be constant; daily in some cases.

With regard to legislation, 77% were in favour of laws to create safe access zones. This high level of support is unsurprising, given that the Irish College of General Practitioners called for safe access zones at its annual general meeting as early as May 2019. GPs who took part in Dr. Fitzsimons' research spoke of the intimidation, distress and upset caused to staff and patients. These concerns were also borne out and recorded in the O'Shea report, in which one rural GP expressed her concern for patients feeling stigmatised and judged. One of the most worrying insights of GPs related to the concern that protests have a chilling effect on potential providers. The prospect of getting involved in providing services scared people off.

Given the uneven geographical spread of services, with nine counties having fewer than five GPs providing termination services, this chilling effect must be urgently addressed to increase the number of GPs participating. In 2019, the Library and Research Service published a useful note on safe access zones in other jurisdictions. The research found that safe access zones were provided for in several countries, including Australia, Canada and the United States. In Europe, from the responses of the 30 parliaments that replied to the Library and Research Service's survey it was found that abortion services were available in all of their countries. Although none of the 30 countries had a specific ban on protests in the immediate vicinity of clinics or hospitals providing terminations – there are many reasons for this – Macedonia and Croatia had a more general prohibition on protests around hospitals, specifically where a protest would obstruct ambulances or disturb the peace of patients. While France did not have a specific ban on protests outside healthcare facilities, it was an offence to attempt to prevent the termination of pregnancy by any means.

It should be noted that since the research was carried out, there have been some developments in parts of Britain and Northern Ireland, where safe access zones are to be introduced in September. Nevertheless, it is clear that safe access zones are not that common in Europe. However, this should not be viewed as a reason not to act, because the context in Ireland is very different. It is only five years since the eighth amendment was repealed and the legacy of the long period before that must be taken into consideration. Research commissioned by the HSE and published in July of last year found the constitutional amendment and decades of disputes over legislation had "left a residue of symbolic effect that presented in the data". The data were collected on unplanned pregnancies and on abortions.

According to the authors of this study, the data pointed to the need for the normalisation of abortion through care provision practices, evolving discourse and tailored policy initiatives such as legislating for safe access zones. We all know that Ireland is no longer the socially conservative country it once was, but the scars of stigma and shame are not so easily forgotten, especially when there are still forces which want to drag us back to those days. That is why Ireland, in particular, needs these protections. Abortion care is a very new feature of our health service, unlike in most other European countries. Therefore, we must act now before anti-choice protests outside healthcare facilities become even more commonplace or increase in frequency. When it comes to legislating for safe access zones, we should not see ourselves as outliers in the EU but instead as leaders.

I would like to turn to the question of constitutionality. Some groups have argued that this Bill is unconstitutional on the basis it would restrict the right to protest. I do not disagree that it would but I do not believe it is unconstitutional. Obviously, the constitutionality could be challenged in the courts, but the Irish Council for Civil Liberties, ICCL, made a compelling case for the constitutionality of safe access zones in its submission on the general scheme. The council argued that the rights of service users must outweigh the right to protest. Its view is based on Article 40.6.1° of the Constitution, which essentially stipulates that public morality is a ground for restricting the right to protest.

In the courts, public morality is informed by the social norms of the day, and in this case that is influenced by the repeal of the eighth amendment and the legalisation of abortion. These factors, along with the views of domestic and international human rights bodies that strongly endorse access to abortion, suggest public morality would favour safe access zones. The ICCL made another persuasive argument for the constitutionality of safe access zones. In instances where the right to protest could be weighed against the rights of service users, the council argued that the most pertinent rights are those of dignity, privacy and the protection of the person, and the proposed restrictions on protests are therefore proportionate. While I may not agree with the views of anti-choice protesters, I support their right to protest and express their views.

However, the proposed narrow and necessary limits on the right to protest proposed in the Bill are needed. In this context, the rights to privacy, dignity, bodily integrity and access to healthcare, and the right of medical providers to access their place of work safely, override the right to protest.

I refer to the one recommendation from the health committee that the Minister has somewhat addressed. During pre-legislative scrutiny, it became clear the Department had not adequately addressed enforcement of safe access zones, thereby limiting the effectiveness of the proposed legislation. The main issue identified during pre-legislative scrutiny related to recordings of warnings. The draft Bill did not place a requirement on the Garda to record warnings, nor did it detail the system that would be used to record them. A number of us still find it difficult to get our head around how this will operate in practice. That is why the health committee recommended that provision for a clear, practical and effective system of recording warnings be included in the Bill. However, while the Minister has made it a requirement to record warnings, it is still unclear how this will be managed in practice.

Section 4(2) states that gardaí must record the time, date and particulars of a warning, but it does not say where that information will be recorded. When we discussed this during pre-legislative scrutiny, representatives of An Garda Síochána did not seem to know how prior warnings could be recorded. Currently, PULSE is used for convictions. Will its use be widened to facilitate the recording of prior warnings? Will the Garda have access to this information remotely? Where, for example, gardaí arrive at a healthcare facility at which the 100 m safe access zone has been breached, what exactly happens in those circumstances? These are questions that need to be answered by the Minister as it is not entirely clear how prior warnings will be managed under the Bill. This important provision seems to have been glossed over, despite the health committee's clear view that it must be addressed to prevent recurring protests and offences. This will need to be teased out on Committee Stage. The Bill must be a priority for the health committee when we return in September. I welcome the confirmation given this afternoon that Committee Stage will be taken at the first meeting of the health committee in September, assuming Second Stage passes this week.

I again stress the point about warnings. It is a precondition of prosecution that a prior warning has been given. A situation may arise, for instance, where an individual protesting in Cork on a Friday is given a warning. If, the following day or week, the person protests in Donegal, in breach of the provision in the legislation for safe access zones, and is apprehended by a garda, how does that garda know whether the individual has had a prior warning? Nobody has been able to answer that question. There is a requirement to record the warning. Where will it be recorded and how will it be accessed on the second occasion a person breaches a safe access zone? We need clear answers on that on Committee Stage.

As I said, progress on the Bill has been painfully slow. I accept the Department needed time to review the provision in other jurisdictions and ensure the legislation is sound from a human rights perspective. However, there can be no justification for that taking up to five years. Nonetheless, we are pleased we have finally arrived at this Stage. The Bill represents an entirely proportionate response to what is an existing significant problem that potentially will become even more significant. Safe access zones have public support, with 85% of adults agreeing that individuals accessing and providing terminations should be protected from anti-abortion protests. That is according to polling carried out in February last year. However, the overriding impetus for this legislation must be the State's obligation to uphold individuals' right to access termination with dignity and privacy, along with respect. At present, we are failing in that regard. We must do better by patients and staff by guaranteeing access to confidential, private and respectful healthcare. I look forward to engaging with the details of the legislation on Committee Stage. I welcome the Bill.

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