A full bench of the highest court in Australia heard oral arguments in October, when Kathy Clubb – an anti-abortion activist – challenged exclusion-zone laws around Victorian abortion clinics. Under the laws, anti-abortion activists are not allowed to protest within 150 metres of abortion clinics. Clubb argued this is unconstitutional because the laws limit the implied freedom of political communication.

The court rejected Clubb’s argument that the exclusion zones discriminated against those with an anti-abortion viewpoint

The High Court also heard arguments from another anti-abortion activist Graham Preston, who challenged the validity of similar exclusion zone laws in Tasmania.

In its decision, the High Court rejected the challenges to both the Victorian and Tasmanian legislation.

The court rejected Clubb’s argument that the exclusion zones discriminated against those with an anti-abortion viewpoint, saying the prohibition is “viewpoint neutral”. The court said that “a person seeking access to premises where abortions are provided is likely to be caused distress or anxiety by attempts by pro-choice activists to co-opt her as part of their message as well as by the reproach of anti-abortionists.”

“It may well be that the prohibition is likely to be breached in practice more frequently by those espousing an anti-abortion message than by those of a contrary view, but it is simply not the case that the prohibition targets only one side of the controversy.”

The court also rejected the argument that anti-abortion communication was most effective when it occurs near an abortion clinic, referencing ‘Brown v Tasmania‘, a 2017 case that dealt with whether legislation seeking to end dangerous protests relating to Tasmania’s forests infringed on the implied freedom of political communication.

Referencing that case, the High Court said today: “It was established as a matter of fact that ‘on-site protests against forest operations and the broadcasting of images of parts of the forest environment at risk of destruction are the primary means of bringing such issues to the attention of the public and parliamentarians’.”

“There was thus no evidence in the present case upon which an argument for the special efficacy of on-site protests as a form of political communication about the issue of abortion could be based.”

The court effectively dismissed Clubb’s claim that her activities outside the abortion clinic were a form of political communication.

“Kathy’s crime amounts to a simple offer of help.” – Martyn Iles

The court went on to say: “Even if the argument for Mrs Clubb as to the special potency of on-site protests as a mode of political communication were to be accepted, her argument would still fail because the implied freedom is burdened only within the safe access zones.”

“It is within those zones that intrusion upon the privacy, dignity and equanimity of persons already in a fraught emotional situation is apt to be most effective to deter those persons from making use of the facilities available within the safe access zones. This, after all, is the very reason for Mrs Clubb’s activities.

“Mrs Clubb’s own argument demonstrates that the legitimate purpose which justifies the burden is at its strongest within the perimeter of the safe access zones. Within those zones, the burden on the implied freedom is justified by the very considerations of the dignity of the citizen as a member of the sovereign people that necessitate recognition of the implied freedom.”

Responding to the High Court ruling, the Australian Christian Lobby’s managing director, Martyn Iles, said it was a sad day.

“The High Court has ruled, and Kathy Clubb and Graham Preston are criminals. The law that convicted them is valid. Kathy’s crime amounts to a simple offer of help. The ministry she is a part of has seen over 300 babies lives saved in recent years, and their mothers given the help they need at a difficult time. This work is now illegal. A woman who did it is now a criminal.”

“That is the verdict of the highest court in Australia. It is getting harder and harder to avoid the conclusion that our nation is in real moral trouble. ‘Woe to those who call evil good and good evil, who put darkness for light and light for darkness, who put bitter for sweet and sweet for bitter.’ [Isaiah 5:20]”

Several groups, including ACL, contributed funds to assist the defence.

“I was fined $5000 for attempting to save a baby from being killed.” – Kathy Clubb

Clubb was the first person to be convicted under Victoria’s abortion protest laws, which came into effect in May 2016. She is a member of the Helpers of God’s Precious Infants, a group well known for gathering outside abortion clinics to pray for the women who enter. Some members of the group carry signage boards with pictures of foetuses.

A mother of 13, Clubb was arrested for breaching the 150-metre exclusion zone outside the East Melbourne Fertility Control Clinic in August 2016, where she handed a pamphlet to a couple outside the fertility clinic. She was fined for the breach by a Melbourne magistrate in October 2017.

“I was fined $5000 for attempting to save a baby from being killed and for trying to save a young couple from a lifetime of regret,” Clubb wrote on her blog after the magistrate’s decision.

Clubb did not dispute that she breached the exclusion zone, but appealed the magistrates decision to the Supreme Court of Victoria. Victoria’s Attorney-General then applied to have the case transferred to the High Court.

“The ethics of abortion is intertwined with the politics of abortion,” reads the High Court submission by Clubb’s legal team. “A person who believes it is morally repugnant to terminate a pregnancy is reasonably likely to support abortion-restrictive policies … a communication on the ethics of abortion is inevitably political in its practical effect.”

The submission referred to onsite political protests in Australia’s history, including the Eureka Stockade, Jabiluka mine and Tasmanian forestry protests: “Australian history is replete with examples of political communications which were effective because they were conducted in a place where the issue was present and viscerally-felt.”

Clubb had described the High Court challenge as a “David and Goliath fight, for which much prayer and wisdom is required”.