Abortion Service Safe Access Zones (Scotland) Bill: equality impact assessment

Background

In Scotland, around 16,000^[1] abortions are carried out each year. The majority of these are medical abortions and occur before 9 weeks’ gestation. Historically, abortion has been a highly contentious subject which attracts polarising views. These views have come to the forefront of public consciousness over the past few years as changes have occurred within abortion policy across the world. Most notably, there were changes to the way abortion care is provided within Scotland with the introduction of early medical abortion at home (EMAH) from 2017 onwards.^[2]

Whilst legalised abortion has always provoked strong and often polarised debate, in recent years, there has been an increase in activity occurring directly outside premises at which abortions services are provided. In the last five years, documented anti-abortion activity has occurred outside Queen Elizabeth University Hospital (QEUH), Aberdeen Maternity Hospital, Sandyford Clinic, Chalmers Clinic, Royal Infirmary of Edinburgh, and Glasgow Royal Infirmary. This activity has included silent vigils, displays of images of foetuses, signs with language such as “murderer”, and displays of religious iconography.

Testimonies of those accessing and providing abortion services provide clear evidence that anti-abortion activity directly outside premises providing abortion services can be distressing; for some, it compounds what is already a difficult and painful experience.

In May 2022, Gillian Mackay MSP noted her intention to bring forward a Member’s Bill to establish safe access zones around healthcare settings providing abortion care. Following a summit on abortion care held by the former First Minister, Nicola Sturgeon MSP, in June 2022, the Scottish Government and Ms Mackay agreed to work together to develop and draft safe access zone legislation.

Further information about the background, the policy intention behind the Bill and the options considered to implement the policy is set out in the Policy Memorandum which accompanies the Bill. The Bill, Policy Memorandum and other accompanying documents are available from the Scottish Parliament website.

Public Consultation

Ms Gillian Mackay MSP ran a public consultation between 18 May 2022 – 11 August 2022^[3] which invited responses from anyone who wished to express a view.

The consultation analysis was published on 15th June 2023^[4]. The consultation received 11,879 responses in total, of which 52 were from organisations, and 11,827 from individuals. Responses to the consultation were polarised - of the responses received from individuals, 56.1% were fully in favour of the proposal whilst 42.6% were fully opposed to the proposal. A further 1.3% of individuals were either partially in support of, or partially opposed to the proposal. 63% of organisations which responded were fully in favour, whilst 31% were fully opposed.

Responses in favour of the Bill cited personal experiences of anti-abortion activity, and the various harms associated with it, such as feelings like fear, judgement and harassment. These experiences are not limited to services users, but also reflected by service providers. Both service users and providers welcomed the proposed introduction of measures to protect service users and providers from anti-abortion activity from occurring outside premises providing abortion services. One respondent to the consultation noted^[5]:

“As an employee at the QEUH where the protesters are stationed every Tuesday and sometimes even more frequently (such as during Lent), I have witnessed first hand how distressing having those protestors there could be for people trying to access healthcare. They stand with images of bloodied foetuses, and highly evocative slogans intended to shock and shame. I also believe they are spreading medical mis information as many of the UKs anti-abortion anti-choice organisations tend to show images of foetuses with incorrect gestation periods besides them so as to give the impression the foetus is more developed at that stage than it actually is. Regardless of the reason someone has an abortion, they deserve to access this basic health service without being subjected to this, the experience of an unwanted or unplanned abortion is traumatising enough. Also, as a member of staff at the hospital I feel that I should be able to get to work every day without encountering this. I am in favor of the right to protest but it is damaging to people’s mental states having it here, and also the group claim it is a ‘prayer’ not a protest, in which case they can do that somewhere else. Other countries such as Ireland and Spain have already introduced these buffer zones. I feel Scotland needs to quickly follow suit, especially considering that these groups are affiliated with those involved in the reversal of Roe V Wade in the states.”

Of those who were opposed to the Bill, many noted the infringement of rights, such as freedom of religion, freedom of expression and freedom of assembly^[6]. For many individuals participating in anti-abortion activities the location of where the activities take place is of great importance. Responses to the consultation show that some of those who take part in anti-abortion activities outside of premises providing abortion services note that they are doing so, in that particular location, in order to bear witness to abortions. As one respondent to the consultation noted:

“Genuine freedom of belief must include the freedom to bear witness to your beliefs even though doing so may cause others offence or distress. Those who believe that human life is sacred and begins at conception not only have a right but a duty to tell these unfortunate women, in a peaceful, non-judgemental way, that what they are doing is wrong. I know someone who has taken part in one of these vigils so I know that they are not about intimidation but bearing witness to the truth that the unborn child is a fellow human being with as much right to life as the rest of us. Moreover, practical help is offered to those having second thoughts or who have been pressurised into seeking an abortion. It would be an incredibly sad day for this country and for freedom if people who have the courage to bear witness to a deeply held but unpopular belief are ever treated as criminals deserving of up to two years imprisonment.”^[7]

Respondents opposed to the Bill were also keen to highlight their belief that anti-abortion activity such as silent prayer vigils do not distress or harm women, and that there is no evidence to support the assertion that anti-abortion activities outside premises providing abortion services have a negative impact on those accessing or using abortion services. One respondent to the consultation noted:

“there is no evidence of a problem existing against women in this situation - it would be a breach of human rights to prevent others from helping these ladies and prevent free speech and freedom of expression. This crime of abortion may affect the mental health of those affected who may later come to regret their crime. the purpose of the Bill is not to limit protest but it would limit it if implemented. Banning "influence and persuasion" is a dangerous step for a supposed democratic society to take.”^[8]

Question 20 of the consultation paper asked whether the Bill would have a positive, neutral or negative impact on individuals with protected characteristics:

“Question 20

Any new law can have an impact on different individuals in society, for example as a result of their age, disability, gender re-assignment, marriage and civil partnership status, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

What impact could this proposal have on particular people if it became law?

Positive

Slightly positive

Neutral (neither positive nor negative)

Slightly negative

Negative

Unsure

Please explain the reasons for your answer and if there are any ways you think the proposal could avoid negative impacts on particular people.”

94% of the total respondents to the consultation submitted an answer to this question, with 46% selecting that the proposal would have a 'positive’, or ‘slightly positive’ effect on these groups. In contrast, 43% selected that the proposal would have a ‘negative’ or ‘slightly negative’ impact on these groups, whilst 5% selected ‘neutral’ and 6% selected ‘unsure’. Respondents were then given the opportunity to explain the reasons for their answer, some of which will be referred to within this impact assessment.^[9]

Of those who thought that the Bill would have a positive or slightly positive impact on equalities, a common theme was that freedom to access healthcare would improve the lives of many individuals, particularly, although not exclusively, for women, trans and non-binary people who are able to become pregnant, people with disabilities, ethnic minority people, young people and people from disadvantaged backgrounds. The rationale given for this was that individuals with protected characteristics often experience multiple forms of discrimination, and the Bill would offer additional protection for those most vulnerable to harassment and intimidation and for those who may need additional privacy. As noted through the organisational response provided by Zero Tolerance:

“Women who experience multiple forms of discrimination may experience intimidation and harassment as not only sexist but also charged with racism, ableism, ageism, homophobia, and transphobia. Lesbian and bisexual young women are twice as likely to become pregnant as their heterosexual peers (Impact 2012). Trans and non-binary people who want additional privacy and others such as younger, LGBTI, and those living in rural, and small communities are also more vulnerable (Engender 2021). This Bill will offer additional protection for those most vulnerable to harassment, intimidation and who may also need additional privacy due to characteristics protected by the Equality Act (2020).”^[10]

Many of those who selected ‘positive’ or ‘slightly positive’ impact on equalities also recognised that the Bill could negatively affect people with particular religious beliefs, but acknowledged that this would only affect those indviduals within the limit of the safe access zone. As noted in the response provided by Scottish Women’s Aid:

“Arguments will be made that the proposed new law would have a negative impact on people for reasons of religion or belief. However, freedom of religion is not freedom to harass or intimidate others who do not share your beliefs. As the consultation paper states, the rights to freedom of religion, freedom of speech and freedom of assembly under the European Convention on Human Rights (ECHR) are not unlimited rights. The ECHR provides that states may limit these rights if specific conditions are met: the limitations must be “prescribed by law” and be “necessary in a democratic society” for one or more of a specified list of reasons, including “in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”. The passage of the proposed law would meet the first requirement that the restriction is set out clearly in law. The second requirement is met because the introduction of safe access zones is to protect public health and the rights and freedoms of women and others who have the capacity to become pregnant to exercise their rights to health, to privacy and to bodily autonomy.”^[11]

Similarly, those who selected ‘unsure’ or ‘neutral’ impact on equalities acknowledged that the impact would be positive for some, but neutral or negative for others. One respondent to the consultation noted:

“This will affect individuals differently based on their beliefs however I believe it will affect the majority positively and only those protesting negatively but not to the extent of the scale of the positive impact affecting users of the service and those that believe in woman’s rights in general. Supporters of women’s rights not affected by abortion will also be affected positively but less so than before mentioned. All others- no impact.”^[12]

Of those who selected a ‘negative’ or ‘slightly negative’ impact on equalities, common themes included the view that adequate legislation already exists and there was strong concern that the Bill would restrict religious freedoms. As detailed in the response by the Archdiocese of St Andrews and Edinburgh:

“A key purpose of a vigil is to pray. To stop vigils, the Bill must stop prayer and so must discriminate on grounds of religion. The consultation document does not provide sufficient evidence as to why this right should be disregarded.

The Bill discriminates on grounds of pregnancy and maternity. Pregnant women would be deprived of support, information and care which vigils offer through unexpected pregnancy centres in Scotland.”^[13]