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High Court challenge to abortion clinic exclusion zones begins

A ‘David and Goliath’ battle is being fought in the highest court in the land – starting today.

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Kathy Clubb, an anti-abortion activist, is arguing that exclusion-zone laws around Victoria’s abortion clinics are unconstitutional. Under the laws, anti-abortion activists are not allowed to protest within 150 metres of abortion clinics. Clubb says this is unconstitutional because the laws limit the implied freedom of political communication.

Her case is being heard in the High Court from 9-11 October.

“The significance of this case cannot be underestimated.” — Martin Iles

Clubb 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 parts of the group carry signage boards with pictures of foetuses.

Clubb was, in fact, the first person to be convicted under Victoria’s abortion protest laws, which came into effect in May 2016.

The mother of 13 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 does not dispute that she breached the exclusion zone. Instead, she is arguing that exclusion zone laws are unconstitutional, placing limits on the implied freedom of political communication. Clubb’s legal team were appealing her conviction to the Supreme Court of Victoria when Victoria’s Attorney-General 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 refers 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 herself has described the High Court challenge as a “David and Goliath fight, for which much prayer and wisdom is required”. She has been collecting donations to fund the challenge, and is supported by the Australian Christian Lobby (ACL) and the Human Rights Law Alliance.

ACL’s Martin Iles says Clubb’s case is “one of the most significant freedom of speech and pro-life cases in Australia’s history”.

“I want to ask you to pray,” Iles says in a video to ACL supporters. “Please pray for Kathy’s legal team. Please pray for the seven judges who will hear the case and make a decision. And please pray for Kathy, because it’s been an ordeal over a couple of years for her to get to this point.”

“The significance of this case cannot be underestimated,” says Iles. “Not only will the ruling impact state laws on exclusion zones, but it will have broader implications for whether governments can outlaw communication on political subjects in certain places. That is an extremely important issue.”

Iles says this decision will impact proposed abortion laws currently being debated in Queensland, which also seek to introduce exclusion zones around abortion clinics.

A similar constitutional challenge of Tasmania’s exclusion zones, by Graham Preston, is being heard alongside Clubb’s case. Eternity spoke to Preston in 2016, who became the first person convicted under Tasmania’s exclusion-zone laws after protesting outside a Hobart abortion clinic.

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