No need for buffer zones

National Affairs Rory Leishman

National Affairs Rory Leishman

On June 26, the United States Supreme Court unanimously struck down a Massachusetts’ law prohibiting pro-life counselling or picketing on a public sidewalk within 35 feet of the entrance to an abortuary. In the opinion of the Court, this law violated the First Amendment to the United States Constitution, which prohibits the enactment of any law “abridging the freedom of speech.”

Meanwhile, several Canadian provinces have even tougher legal restrictions on anti-abortion demonstrations than those in the discredited Massachusetts’s law. In Ontario, for example, an injunction issued by Mr. Justice George Adams of the Ontario Supreme Court in Ontario (Attorney-General) v. Dieleman, 1994, prohibits anyone from picketing or sidewalk counselling against abortion within 60 feet of the Cabbage Town Women’s Clinic and the Scott Clinic – two notorious abortuaries in downtown Toronto. Today, almost 20 years later, this supposedly temporary injunction still remains in effect.

In seeking this injunction, former Ontario New Democratic Party Attorney-General Marion Boyd claimed that nothing less than a complete ban on pro-life picketing and sidewalk counselling within the vicinity of an abortuary would suffice to safeguard women seeking abortions. The same argument was advanced by the Attorney-General of Massachusetts.

There is no merit to this contention. In Canada, as in the United States, it is a criminal offence to harass, intimidate or obstruct a person who is about to enter an abortuary. There is no need in either country for an additional ban on pro-life picketing and sidewalk counselling to deter such criminal behaviour.

Joanne Dieleman is one of the principals named by Adams in his ruling. In 1994, she served as the unpaid Executive Director of Aid to Women, a Toronto-based organization that helps women to cope with a crisis pregnancy.

As Adams noted in his ruling, Dieleman is a devout Christian and mother of eight children, two of them adopted. Both of her adopted children have severe handicaps, one with spina bifida and the other with a mental disability.

In addition, Dieleman and her husband Adrian have cared for more than 250 foster children, many of them also afflicted with physical and mental handicaps.

That a dedicated Christian like Dieleman would attack anyone, let alone some hapless  woman seeking an abortion, is inconceivable. In a booklet entitled “Sidewalk Counselling Saves Babies,” she admonishes pro-life counsellors not to harass or even to touch anyone approaching an abortuary. Dieleman warns: “It is illegal to continue to talk to or to force literature on a person who has clearly indicated that he or she wants you to stop doing so”.

Dieleman acknowledges in her booklet that most women hurrying into an abortuary do not want to talk to a sidewalk counsellor. She advises: “These women are emotionally threatened by our presence because we represent a conscience. Still we must reach out to them with compassion, gentleness and love.”

Experience in Canada and elsewhere has proven that such a loving and gentle approach to helping women avoid the pain and heartache of abortion is effective. Dieleman testified that in 1992 alone, at least 92 mothers had decided not to abort their babies as result of the counselling and help provided by volunteers at Aid to Women.

Sidewalk counselling against abortion is most effective when conducted within a few metres of an abortuary where women who are about to enter the facility can be readily identified. Nonetheless, Adams held that Dieleman and her colleagues had no legal right to engage in this life-saving activity in the immediate vicinity of an abortuary, because they had severely upset far more women than they helped.

Perhaps so, but political protesters and union pickets are free to express disturbing messages on a public street that many people also find offensive. Is there any good reason that peaceful pro-life demonstrators should be denied a corresponding right to express their controversial convictions on a sidewalk near an abortuary?

The United States Supreme Court does not think so. In explaining the unanimous decision of the Court to strike down the Massachusetts constrictions on pro-life counselling, Chief Justice John Roberts observed that it is settled law in the United States that the ability of the government to restrict speech on public streets and sidewalks is “very limited.” As a general rule for these public areas, he specified that the government may not “selectively shield the public from some kinds of speech on the ground that they are more offensive than others.”

In sorry contrast, the Supreme Court of Canada condones the even tougher restrictions on freedom of expression that have been imposed on Canadian pro-lifers. Thus, when pro-lifers appealed a ruling by the British Columbia Court of Appeal in 2008 that upheld a provincial ban on pro-life counselling within a perimeter of up to 45 metres from an abortuary, the Supreme Court of Canada refused even to reconsider the freedom-stifling judgment. What a pity.

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