Kathleen Clubb defends right to challenge abortion
Kathleen Clubb is a single mum with 13 children. Her anti-abortion protest may be the biggest test of free speech yet.
Kathleen Clubb has 13 children, enough to make anyone gasp. Like many Australian women, she also has a miscarriage — three, in fact — in her reproductive history, and she once had a conversation about abortion at a family planning clinic. She was 19 at the time, single and broke.
“I had a pretty wild time when I was a teenager,” Clubb says. “I was living in Brisbane, clubbing, drinking, live-mixing for indie bands.” And she became a bit of a goth, all black clothes, white face and piercings.
She had a serious boyfriend, but they split up. She had rebound sex with her flatmate, and hey, guess what? Pregnant.
Clubb remembers looking in the phone book for a number for the family planning clinic because “you couldn’t get an over-the-counter pregnancy test in those days”. You had to do the urine in a cup thing and “you had to speak to the nurse, who said I had three choices”. There was adoption, which had faded a little as a popular option by the mid-1980s; she could have the baby; or she could have an abortion.
“I told the nurse I had two options,” she says. “I’d seen a pamphlet in my dad’s briefcase when I was about eight. It had diagrams of what abortion is, and I knew I couldn’t do that to my baby.”
She wrote a letter to her mum, who travelled down to Brisbane and brought her home.
“I decided to take responsibility,” she says. “And as soon as I had my daughter, Julia, I felt a strong desire to have her baptised.
“I became quite serious about my faith.”
Two years on, Clubb met her husband-to-be, David, an American who had come to Australia to work as a chiropractor. Ahead of the wedding — actually at the pre-wedding conference with the priest — she told him she didn’t believe in contraception, and the rest you can guess: it was one pregnancy after another (besides Julia, now 31, Clubb has Joshua, 26; Madeleine, 25; Jessie, 23; Gabrielle, 21; Emmanuel, 20; Elijah, 17; Lucien, 16; Eva, 14; Tobias, 11; twins Miriam and Matthew, 9; and Danielle, 7.)
Clubb moved with her seven youngest children from Tasmania to Victoria some years ago. She is renting a 70s exposed brick house with a copper fireplace, a laminate kitchen, and a long-flattened shag pile carpet.
She doesn’t mind admitting that things are tight. All the children are being home-schooled, and all are well-mannered and articulate. Six of them come to perch on the sofa on the day of this interview, which is to discuss the role Clubb, who last year became the first person to be convicted under abortion protest laws in Victoria, will play in what may become one of the most important free speech cases heard by the High Court.
She wants Australians to know that it’s not about abortion. It’s about the right to protest.
The youngest, when bored, entertains herself with handstands; the next oldest is reading Roald Dahl. At some point, they’ll bring in the guinea pigs for show-and-tell; later in the day, their mum will ask them to “get the lunch started”, and before long they’ve put an efficient assembly line together: here’s a plate with lettuce, another with sliced tomato, bacon, cheese slices, fresh bread, an orange juice station.
Everyone helps themselves. Then they say grace.
Over time, it becomes apparent that there is no dad around, and here’s something interesting: if you’re an orthodox Catholic, opposed to abortion, surrogacy, in-vitro fertilisation and euthanasia, you’re also probably opposed to divorce, but Clubb is divorced.
“I didn’t want to talk about this, but he wanted it,” she says, and the sorrow is immediate and obvious. She ran hard against it, but when it became apparent that divorce was happening, she went for the annulment, giving evidence, as a Catholic must, at the Marriage Tribunal in Melbourne.
“I was overwhelmed by grief,” Clubb says. “I felt very badly done by at the time: 10 children at home, no money, no prospects.”
It was during this period that Clubb had what she describes as a revelation.
“It was a spiritual experience,” she says. “A message that no matter how hard my life was, there was a whole class of people who were much worse off than I was. And I should focus on the unborn.”
Clubb can anticipate all your questions: yes, she is opposed to abortion in cases of rape; yes, in the case of profound disability; yes, in the case of incest.
She also believes that Australians have been denied a national debate about abortion.
“In some states, it’s now legal all through nine months for any reason, and we have not had a debate about that,” she says — and plenty of readers will no doubt think: good.
Those people who stand outside abortion clinics with gory signs and, in some cases, with blood-splattered dolls in prams, they’re pests — and also, it’s none of their business.
Clubb says she has never done that. She prays and she offers pamphlets.
“But the point is, if parliament can ban this kind of protest, what other kind of protests can they ban?” she says. “I am fighting for all Australians.”
Legislation creating 150m “safe zones” around the Victorian clinics came into effect on May 2, 2016. This was always going to be a problem for Christian groups that hold their vigils outside the doors.
Court documents show that Inspector Gerard Cartwright of Victoria Police met a group he called “the Helpers” (the full name is Helpers of God’s Precious Infants, and Clubb is a member) several times in an effort to impress on them the importance of the law, telling the court: “These were law-abiding people and I did not want them coming before the courts.” He asked them to steer clear of the 150m zone. In July, “the Helpers” contacted him to let him know that “a man in his 70s and a woman in her 50s” would breach the zone on August 4, 2016, outside the Fertility Control Clinic in Wellington Parade, East Melbourne.
Twenty officers were briefed to attend, “to ensure calm”.
Clubb says she had a friend drop her off near the clinic. En route to the safe zone, she saw two detectives at a nearby cafe and stopped to say hello. As arrests go, it was all very civilised. She walked into the exclusion zone. Video of the event, shown to the court, shows her attempting to engage a couple as they approach the clinic, by speaking to them and handing over a pamphlet. The male of the couple declines the offer and the young woman moves away.
A police officer steps up and tells Clubb she is breaking the law. Was she prepared to leave? She was not.
From there on, events felt to Clubb like something from NYPD Blue. She was not cuffed but put in the back seat of a squad car. She had a mugshot taken at the station, which her delighted kids are now trying to get her to use as her Facebook profile picture.
There was a confusing moment in the cop shop bathroom: everything was stainless steel and she couldn’t find a tap, just a button to press to wash her hands. She had to hand over personal items but was allowed to keep her rosary beads, although one officer said: “Don’t harm yourself with them.”
“They weren’t jovial,” she says, thinking back. “More businesslike.”
It took some time for the case to make its way to the Magistrates Court but ultimately, on October 11 last year, with magistrate Luisa Bazzani presiding, Clubb was told she had been charged with breaching section 185D of Victoria’s Public Health and Wellbeing Act 2008; that she had insisted on “communicating about abortions” within a safe access zone in a manner “reasonably likely to cause anxiety or distress”; and that she had done so despite two warnings, “defiantly and deliberately”.
Of course she had. That was always the point.
Clubb’s legal team appealed her conviction to the Supreme Court of Victoria, with grounds one and two concerning the constitutional validity of the law in question. A short time later, Victoria’s Attorney-General Martin Pakula also applied to have the case transferred to the High Court, which is due to hear the matter later this year.
Clubb is opposed by the Solicitor-General for Victoria, Kristen Walker; commonwealth Solicitor-General Stephen Donaghue; the Solicitor-General for NSW, Michael Sexton SC; the Solicitor-General for Queensland, Peter Dunning QC; the Solicitor-General for Western Australia, Peter Quinlan SC; the Solicitor-General for South Australia, Chris Bleby SC; and barristers acting for the private abortion providers, who seek to be heard as amicus curiae (friend of the court.)
Clubb’s supporters include the Helpers — they are largely Catholic and wholly anonymous, without so much as a website — the Human Rights Law Alliance, which hopes to raise an estimated $120,000 to cover the cost of being heard in the High Court; and the Australian Christian Lobby.
The case — officially, it’s No M46/2018 — concerns something that should concern us all: freedom of political communication. Australia doesn’t have a bill of rights but in 1992 the High Court did recognise what it has called an “implied freedom of political communication”. To be clear: that’s not a personal right to speak your mind. It’s a burden on legislative power, meaning our parliaments are restricted in the laws they can pass.
Walker, the Victorian Solicitor-General, has rejected the free-speech argument in her submission to the High Court, saying Clubb is “trying ignore or downplay the demonstrable harm” the protests cause “to people seeking abortions”. She describes the protests as “harassing and intimidatory conduct”, with the most extreme case in Victoria involving “the fatal shooting in 2001 of a security guard at the East Melbourne clinic”.
The commonwealth argues that such protests are not political because protesters are not trying to change the law, they are interfering with the personal choice of an individual woman. Furthermore, Clubb’s freedom to communicate has not been taken from her: she can protest abortion outside parliament; she can write to her local member; she can take out newspaper ads; she can campaign in certain seats, even run for office. What she can’t do is approach a vulnerable, pregnant woman trying to access a lawful medical procedure at an abortion clinic.
And this, in the view of Clubb’s legal team, is the point.
In their submission, they say: “Australian history is replete with examples of political communications being effective precisely because they are conducted at the place where the issue is viscerally felt.” There’s the Franklin Dam blockade, for example, and the Pine Gap protests, the Freedom Rides and the Eureka Stockade.
Clubb’s team acknowledges that her protest isn’t popular, and that too is important because the “very purpose of freedom” is to permit the expression of unpopular, minority view points.
“In order to rouse, political speech must first excite,” the submission says. “Sir Robert Menzies’ ‘forgotten people’ speech, Paul Keating’s Redfern speech, Kevin Rudd’s apology … each was apt to cause discomfort not incidentally but deliberately.”
It will not be an easy case for Clubb to win. Australia has no proud free speech tradition. Four states and the commonwealth have already made submissions aimed at silencing her protest.
But in her pocket Clubb has what she believes is a reason to keep going. It’s a short video, stored on her phone, of a child she describes as “the last baby we saved”.
“His parents are Nepalese, they hadn’t been in Australia very long,” she says. “They approached the clinic and I could see they didn’t want to do it.”
She helped them away from the door, into a nearby carpark, where the mum-to-be, buckled by morning sickness, vomited. They explained their circumstances: he was working in a convenience store, earning not much money. She was newly arrived and now pregnant. They didn’t have stable accommodation. The GP had given them a pamphlet for the abortion clinic.
“I told them we could help,” says Clubb, and the groups with which she works stepped up with money for rent, doctor’s fees, a cot and a car seat.
The child being carried in the womb that day is now a two-year-old. In the video, he’s bopping along to an Ed Sheeran song.
“I believe we did God’s work that day,” says Clubb.
“You don’t have to agree but I should be allowed to say it.”
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