When I first noticed their banner as I walked by Bedford Square, in London, I didn’t think too much about it. It registered as a depressing example of the public expression of a position I had strong opposition to, not much more. It wasn’t until sometime later that I clocked the unusual location of the small public protest — a quiet spot with relatively little pedestrian or other traffic upon which to make an impact. I googled. It turns out that the ‘impact’ of the protest was directed toward the women who were seeking the services of the clinic across the road, the British Pregnancy Advisory Service. Although the large banner, small signs, a handful of the ‘faithful’ across the street — watching, singing, and praying as the women came and went — was not the full extent of their activities. It also involved up to two individuals stationed on either side of the front entrance of the clinic, handing out (factually incorrect and manipulative) information, and trying to engage both those coming and going to the clinic, and passer-bys, in discussion. There have also been reports of assault and filming. This outraged me. Freedom to protest, freedom of expression, okay. Harassing women during what is often a very difficult and private experience, not okay.
The response to the vigil has been escalating, along with the vigil itself. Most recently we saw a counter-protest (outside of clinic hours) which significantly outnumbered the pro-life campaigners. Whilst the symbolic victory may have been won by those who will defend the right to choose, the fact that the counter protest was held only after clinic hours is indicative of a deeper issue. Those who would defend the right to choose are conscious not to contribute to the distress of women seeking these services. Unfortunately, vigil keepers do not share this concern, and willingly make a battlefield of the clinic entrance. Even if the slumbering giant of the pro-choice movement has awoken, it does not necessarily address this key issue — that is the issue of tactic, strategy, and what constitutes an acceptable form of protest or political expression. Counter protest (outside clinic hours), polite but clear letters of opposition (I am infamous for this one), or confronting vigil keepers as one walks by may persuade some that their peaceful protest is not as peaceful as they think, but those committed to the campaign remain. The question that I want to raise is what role, if any, do we think the law ought to play in addressing this issue?
The role of the law in relation to forms of direct action or protest is understandably met with suspicion. Examples of disproportionate and violent responses to peaceful protest has ceased to surprise many of us (if it ever did). Perhaps even more fundamentally, the law itself is a form of constituted power that protest may seek to challenge. We have good reason to be hesitant about invoking the law to limit forms of protest: But this hesitation risk subsuming the political to the legal. The right to protest as a legal right is already necessarily limited. It does not define what may be legitimate protest according to political or ethical (or other) criteria. But that does not mean that a legal right to protest is not an important and valuable thing – but it will always be a limited conception of political action. What we should be asking ourselves is what kinds of limits these legal limits should be.
Returning to our case of those who keep vigil outside of abortion clinics, we might want to say that as a form of political action it should not be confined or deterred by the legal form. But then if harassing women is their form of action — my political response is to stop them. Theoretically, a politically ‘legitimate’ response would be for me to send my posse out to stop their posse from harassing women, but not only does the law already constrain such a response, it is not a particularly desirable form of action. If we ask where we believe the limits of legal protest should lie on the other hand — many of us would likely say that those limits should preclude harassing women.
As it turns out, the law already reflects this limit. Harassment is a criminal offence, and the law does not recognize protest as a defence. Significantly, since the introduction of the Serious Organised Crime and Police Act 2005, the law recognises the particular kind of harassment that is the result of a political campaign, campaigns which target a particular person or persons to try to persuade them not to do something they are legally entitled to do. But then, what does the law recognise as harassment? Generally, the answer is a course of conduct that causes someone alarm or distress (or fear of violence). It doesn’t matter whether the person engaged in this conduct thinks they are causing alarm or distress, but what the ‘reasonable person’ would think would cause someone alarm or distress. Are these dangerous lines to be drawing, especially in relation to protest? Absolutely. Most forms of protest probably cause some kind of alarm or distress — in fact wearing a bright colour whilst walking down the street might cause someone alarm or distress. But it is, I would argue, a line that should be drawn.
In this case the nature of the conduct is distinguishable as harassment by the nature of the target. These are not any member of the public going about their daily business — the targets of the vigil keeper’s conduct are women who are actively seeking abortion related services. They are identified as such and confronted because they enter the door of a clinic. In what is perhaps one of the more difficult and deeply private moments of their lives, they are subjected to an ordeal by those who assume moral and spiritual superiority — and who would seek to stop them from exercising their choice. Would the law find this to be harassment? I suspect so. Should we look to the law in such a case? Yes.
Victoria Ridler is a lecturer in law at Birkbeck, University of London.