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Will Kathy Clubb’s case be judged on reason rather than emotions?

October 9th marked the first day of a momentous battle over free speech in the High Court of Australia.

At the federal level, we have an ostensibly conservative government lead by an ostensibly Christian Prime Minister.

Sadly, Australia’s Attorney General Christian Porter has ordered his department to join with the States in defending abortion mill buffer zone laws in the High Court case involving Kathy Clubb and Graham Preston.

In 2017, Ms Clubb, a pro-life activist and mother of 13, was found guilty in the Melbourne Magistrate’s Court of breaking the law when she offered a leaflet to a couple about to enter an abortion facility on Wellington Parade in Melbourne.

The magistrate stated: “There is no evidence of duress or violence of any kind. The engagement between the Accused and the couple is brief and appears polite.” Despite this, the magistrate found her guilty and fined her $5000.

Ms Clubb said in an October 8 media release: “Our founding fathers intended that Australian citizens would be free to express their opinion on political matters, to act in accordance with their religious convictions and to defend human life. This legal challenge is all about protecting those rights. The outcome of this case will be very important for all Australians and not only for the pro-life community. It’s crucial that everyone – even those with whom we disagree – is free to dissent from popular opinion. We believe that the public and politicians must be free to hear the truth about abortion, rather than being swayed by a fashionable narrative. And we also want to secure freedom for women in crisis who may feel forced to abort their children because they think they have no other option.”

Ms Clubb’s counsel Guy Reynolds submitted to the High Court that “avoidance of psychiatric harm” is an important aim but “the avoidance of hurt feelings is not”, arguing that criticism and “the resultant loss of dignity” are “inherent in political speech”.

Mr Reynolds compared anti-abortion views that may harm the dignity of women seeking abortion to “criticism of bankers” or “criticism of men by feminists” as “part and parcel” of political speech.

In their submission for an ongoing High Court appeal, Ms Clubb’s barristers outlined a number of reasons why the verdict should be overturned, the principal one being that Ms Clubb’s action was political in character and is safeguarded by the right to political discourse guaranteed by the Australian Constitution.

The barristers argue, “To change one’s mind on the ethics of abortion is apt to change the person’s mind on the politics of abortion. Further… protest on the topic of abortion outside abortion facilities is also inherently political, particularly when 20 police officers are present.” The law is also criticised for its vagueness.

“It is inherently difficult to predict whether conduct is apt to cause distress or anxiety, particularly once those concepts extend to mere discomfort,” they add.

“There is no bright line between communications which are in relation to abortion and those which are not. Is a communication seeking a vote for a political party the speaker knows to be pro-life a communication in relation to abortions?” The limits of the “Safe Access” are inherently unclear. For example, if abortions are provided at a large hospital or at a university or shopping complex, does the 150 metres extend beyond the limits of the hospital or just the building or room where the abortions are provided?

The submission gives a series of prohibitions under this law which burden the freedom of political communication.

The prohibition applies:
• To any communication relating to abortion that is able to be seen or heard (whether or not it is in fact seen or heard);
• Whether or not the recipient consents.
• Where abortions are administered by way of a drug, which includes private residences;
• Whether or not distress or anxiety is in fact caused, or intended;
• To communications by Members of Parliament and during election periods and referendums;
• Where the communicator is seeking to discourage a person from obtaining an unlawful abortion.

Kathy’s barristers ultimately argue: “What the law does, in fact, is to burden one side of the abortion debate more than the other. It discriminates, and it distorts political communication. And it does so to a viewpoint that is properly described as a minority viewpoint.”

What is the evidence of harms suffered by people who look at a pamphlet that provides information about unborn people?

The below document examines the harm evidence given to the High Court in affidavits from Dr Goldstone, a medical doctor, and Dr Allanson, a psychologist, who work for abortion clinics.

This article concludes that the evidence has "substantial limitations" and that it may be difficult for the Court to rely on this evidence in assessing the extent to which individuals communicating outside abortion clinics may harm, or even help, women and others accessing the premises.

Here are some quotes from the paper:

"Failing to take account of the possible differences in the impact of such various types of conduct may lead to the conclusion that the presence of all individuals outside abortion premises is equally likely to cause harm to patients or employees of the premises.

"Such a conclusion is likely to be false considering that conduct such as respectful offers of assistance may not produce any harm and may even help women considering abortions to avoid harm.

"For example, some women may experience adverse mental health consequences from abortions that they may have avoided if they had been provided with support that would have allowed them to continue with their pregnancy.[v] More precise studies that account for the variability of conduct outside abortion clinics may indicate that broadly operating laws such as those that exist in Victoria and Tasmania may harm some persons, especially women considering abortion, and that more nuanced laws are required to ensure that at least respectful offers of assistance remain lawful.

"A further problem is that any medical procedure can be an adverse emotional experience for patients due to a range of factors such as the pain experienced from the medical condition, the health risks involved in the procedure, patient perception of vulnerability and the loss of privacy. Abortion may be a particularly emotional experience for patients or employees of clinics when compared to other procedures due to the nature of the procedure, the patient’s perception of the significance of the procedure, the possibility that the patient is being coerced to undergo the abortion by third parties, and the substantial community disagreement regarding the ethics of abortion.[vi] Dr Goldstone, Dr Allanson and the studies relied upon by them do not address whether and, if so, to what extent, the adverse emotional states identified by them could be due to the stressful nature of any medical procedure nor to the possibility that participation in abortion as a patient or employee may be particularly stressful."

View the entire paper here: https://walta.net.au/2018/10/01/the-high-court-abortion-clinic-speech-restrictions-and-the-assessment-of-harm/