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The Death of Roe v. Wade: What Lies Ahead?

image of US map with flag and constitution superimposed

The pro-life movement appears to be on the cusp of winning its crowning triumph — the overturning of the constitutional abortion regime established by two Supreme Court cases, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. In oral argument last December for the case of Dobbs v. Jackson Women’s Health Organization, involving a constitutional challenge against a Mississippi law banning abortion after fifteen weeks, all of the Court’s conservative wing — with the possible exception of Chief Justice Roberts — appeared ready and willing to abandon fifty years of precedent and declare, in Justice Kavanaugh’s words, that the “Constitution is silent and, therefore, neutral on the question of abortion.” Thus, it seems appropriate to consider now how the legal landscape might shift in response to this momentous development.

In what seemed like an attempt to mollify coastal liberals, during oral argument for Dobbs Justice Kavanaugh and Mississippi’s Solicitor General, Scott Stewart, speculated as to the relatively limited fallout we might expect. Seeking to paint a rosy picture of what the future might hold, Kavanaugh asked Stewart whether, if Mississippi prevailed, a “majority of states still could or… presumably would continue to freely allow abortion.” Stewart answered that this outcome was “consistent with our view.” Earlier in the argument, Stewart suggested that a ruling in Mississippi’s favor would serve the “many people [who] vocally just really want[] to…decide [the abortion question] locally….”

But Kavanaugh and Stewart’s implication that pro-choice states could simply continue to permit abortion after the Court upholds Mississippi’s law is somewhat disingenuous. Many liberals and conservatives seem to think that if Roe is overturned, the question of abortion’s legality would automatically vest in the states. This is far from clear. Congress could, if it wished, pass legislation under the Commerce Clause that either prohibited or permitted abortion nationwide, thereby preempting state law. (The Commerce Clause is the most likely constitutional “hook” here because abortions are services sold in interstate commerce). This possibility means that the oft-repeated claim that returning abortion to the states by overturning Roe will lessen the national-level rancor surrounding abortion rests on a false premise.

When Roe was decided in 1973, thirty-one states forbade abortion in all circumstances except to save the life of the mother. Some of these states never repealed their pre-Roe abortion statutes. When the Supreme Court declares a state law unconstitutional, it is not automatically repealed; without legislative action, it stays on the statute books, unenforceable but still a part of the state’s legal code. If Roe is overturned, these “dormant” statutes could easily spring back to life. Thus, a pro-life ruling might not endanger abortion access only in states that, like Mississippi or Texas, passed anti-abortion statutes after 1973 in anticipation of the eventual overturning of Roe. Moreover, although the issue is not definitively settled, recent Court precedent suggests that its decisions about federal law have “full retroactive effect,” at least in civil cases. This raises the possibility that if a plaintiff sues an abortion doctor for conduct that took place before Roe was overturned pursuant to state law, the defendant might not be able to defend herself by claiming that her behavior was constitutionally protected at the time.

One particularly interesting exchange in the Dobbs oral argument concerned the possible effect of overturning Roe on other seminal cases involving reproductive and sexual rights, such as Griswold v. Connecticut — which declared that the right of married couples to buy and use contraceptives is protected by the constitution — or Lawrence v. Texas and Obergefell v. Hodges, which struck down bans on homosexual intimacy and same-sex marriage, respectively. Justice Barrett asked Solicitor General Stewart whether a decision in Mississippi’s favor would have adverse effects on these other decisions. Stewart replied that two features distinguish them from Roe: “Negative stare decisis considerations,” and that none of those other decisions “involve the purposeful termination of human life.” In saying this, Stewart was suggesting two lines of reasoning that the Court’s conservative majority could use to overrule Roe: that Roe doesn’t have the same precedential weight as other “watershed” decisions like Brown v. Board of Education because key elements of Roe were abandoned in Casey, and that states have a compelling interest in fetal life.

However, in a later colloquy between Stewart and Justice Sotomayor in which the latter noted that all of these decisions rested on “substantive due process,” Stewart denied that Griswold, Lawrence, and Obergefell were vulnerable on the grounds that Mississippi is “quite comfortable with Washington v. Glucksberg and how it analyzes substantive due process.” By “substantive due process,” Sotomayor and Stewart were referring to a Supreme Court doctrine according to which the Due Process Clause of the Fourteenth Amendment protects certain substantive rights, such as privacy or autonomy, and not merely procedural rights to judicial process when the government deprives persons of life, liberty, or property. In Roe, the Court held that the Due Process Clause guarantees a right of privacy that includes the right to abortion. The rationales for Griswold, Lawrence, and Obergefell all relied to one extent or another on the substantive due process doctrine. Nevertheless, the very idea of substantive due process is something of a bugbear among conservative lawyers and legal scholars, including some Supreme Court Justices. Thus, Sotomayor was pointing out to Stewart that should the Court overturn Roe by rejecting substantive due process, the other decisions on sexual and reproductive rights could easily fall with it.

Stewart’s reply was to point to the Glucksberg case, decided twenty-five years after Roe, in which the Court held that only rights that are “deeply rooted in the nation’s history” are protected by the Due Process Clause. Stewart was in essence saying that Mississippi was not arguing for abandoning substantive due process, so long as the Court adheres to the Glucksberg standard. By that standard, according to Stewart, abortion rights are not among the rights protected by substantive due process, since abortion rights do not have deep roots in America’s history. The obvious problem with this reply is that rights to birth control, homosexual sex, or same-sex marriage are also not deeply rooted in the nation’s history — a point that Sotomayor began to articulate before being interrupted and sidetracked by Stewart.

This discussion has ventured into the constitutional weeds in order to illustrate the point that the ramifications of the Court’s ruling in Dobbs will crucially depend upon the precise nature of the reasoning it uses to support it. If the Court decides to overrule Roe on the narrow ground that the state has a compelling interest in fetal life, then other substantive due process rights may survive. But if the Court uses Dobbs as an opportunity to affirm and apply the Glucksberg standard, or even to call the doctrine of substantive due process into question, then these other decisions may be left vulnerable to challenge. In general, the Court likes to decide issues on the narrowest grounds possible, but there are exceptions to this rule. Moreover, as I mentioned, there are a number of Justices who are openly hostile to substantive due process as a whole. In that context, a Glucksberg-based decision that preserves substantive due process but potentially affects a host of other important cases might appear to some Justices like a reasonable middle ground. We can only speculate.

The ramifications of Roe’s death are unpredictable. In this column, I have emphasized some possible consequences that add up to a darker picture of life after Roe than even many left-leaning commentators predict. However, there are other possible effects that may be less desirable to the pro-life side. Although studies suggest that overturning Roe will, in the short term, appreciably depress abortion rates — mainly by increasing travel distances between pregnant women and abortion providers — the longer-term effects are less clear. In the years leading up to Roe, many states were liberalizing their abortion laws. As millions of women find themselves wholly cut off from access to safe abortion services, that trend may continue if Congress does not act. In the fullness of time, it is quite possible that the pro-life side will find the death of Roe a Pyrrhic victory.

Bill Cosby and Rape Culture

black and white photograph of lamp light in darkness

In 2018, comedian, television personality, and serial rapist Bill Cosby was convicted and sentenced by a jury of his peers to three to ten years in prison for drugging and sexually assaulting Temple University employee Andrea Constand in 2004. The Constand rape was the crime for which Cosby was convicted, but he was accused of very similar crimes by no fewer than 60 women, including two who were underage girls at the time of their alleged assaults. Cosby’s conviction was hailed as a major success for the #MeToo movement, which aims at long lasting change when it comes to misogyny and rape culture in the United States. At last, it seemed, we might finally be starting to see the end of the ability of men, especially powerful men, to get away with sexual transgressions. Even “America’s Dad” was not too powerful to be held accountable for how he treated women — or so it appeared. On Wednesday, June 30th, 2021, Pennsylvania’s highest court overturned Cosby’s conviction and he walked away a free man.

The court did not vacate the conviction because new information came to light concerning Cosby’s guilt. They did not overturn it because Cosby was actually innocent of the crimes for which he was accused and convicted. Instead, as is usually the case in these kinds of proceedings, his appeal prevailed because of a technical legal issue — in a split decision, the court found that Cosby’s due process rights had been violated. Cosby agreed to testify in a civil case related to the same allegation because a prosecutor guaranteed him that the case would not be prosecuted in criminal court. A different person, who claimed that they didn’t make the promise and were not bound by the agreement, prosecuted Cosby in the criminal proceeding in 2018. Cosby’s testimony in the civil trial was used against him in the criminal proceeding. The Pennsylvania Supreme court ruled that this violated Cosby’s rights against self-incrimination. In depositions related to these matters, Cosby has acknowledged giving quaaludes to women with whom he wanted to “have sex.”

It’s important that our justice system is procedurally fair. As a result, it’s equally important that we have an appeals process that corrects procedural unfairness. It’s extremely unfortunate that there was a technical mistake in Cosby’s conviction — based on the evidence presented at his trial, the finders-of-fact determined that he was guilty. People who have done extremely bad things are released for reasons of procedural unfairness all the time, and this is as it should be. We don’t want a criminal justice system in which prosecutors and other players in the system can bend the rules. If this were the way the system worked, anyone could be steamrolled for anything. What’s more, the victims of that kind of procedural injustice are frequently members of oppressed groups. Abandoning procedural fairness would only make these problems much worse. That said, there are many unfortunate consequences of the court’s ruling and they highlight the fact that we still have a long way to go to create an environment that is safe and peaceful for women and survivors of sexual violence.

First is the disingenuous response of Cosby himself. On Twitter, he posted a picture with his fist held high as if in victory with the caption, “I have never changed my stance nor my story. I have always maintained my innocence.” This is at best a non-sequitur and at worst an attempt to gaslight and deceive. The court didn’t find evidence of his innocence. In fact, if Cosby had not incriminated himself, that is, if he did not admit his crime in the civil proceeding, the court would not have been able to overturn his conviction in the first place.

The behavior of close friends of Cosby’s did not help matters. His long-time television wife, Phylicia Rashad, tweeted the following: “FINALLY!!!! A terrible wrong is being righted- a miscarriage of justice is corrected!” Rashad now serves as the Dean of the Fine Arts College at Howard University, and she quickly faced considerable backlash for her online remarks. In response, Rashad released an apology to Howard University students and parents saying, among other things, “My remarks were in no way directed towards survivors of sexual assault. I vehemently oppose sexual violence, find no excuse for such behavior, and I know that Howard University has a zero-tolerance policy toward interpersonal violence.” She committed “to engage in active listening and participate in trainings to not only reinforce University protocol and conduct, but also to learn how I can become a stronger ally to sexual assault survivors and everyone who has suffered at the hands of an abuser.” Notably absent from her apology was any discussion of the Cosby case specifically or the fact that she had misrepresented the reasons for his release or suggested that the substantive evidence supporting his conviction had been somehow undermined by the appellate court.

Overturning Cosby’s sentence led to a mountain of celebrity apologetics online — enough to make rape survivors feel very uncomfortable. When celebrities are involved, many people succumb to confirmation bias — in this case they have affection for the wild-sweater-wearing, Jell-O-pudding-slinging, television super dad of their youths, and they don’t want to believe that a person they liked so much could be capable of doing the things for which Cosby has been tried and convicted.

The fact is, survivors of sexual assault watch all of this happen and they see how eager people are to trust their heroes and how reluctant they are to trust accusers. This impacts the willingness of a victim to come forward because they see how they might be treated if and when they do, even in cases in which the evidence is overwhelming.

This case emphasizes the moral necessity of educating our children in more comprehensive ways when it comes to rape culture and the kinds of biases that come along with it. We need to teach children not just about the mechanics of sex, how to engage in family planning, and how to avoid STDs. We also need to have open and honest conversations with young people about the nature of consent.

Unfortunately, some state legislatures are quite unfriendly to the concept. For instance, this year, lawmakers in Utah rejected a bill that would have mandated teaching consent in schools. Their reasoning was that teaching consent suggests to children that it might be okay to say yes to sex before marriage. The majority of the state’s lawmakers favor an abstinence-only policy. But refraining from talking to students about what it means to grant consent results in people having ill-formed ideas about the conditions under which consent is not given. This leaves us with a citizenry that is willing to pontificate on social media about whether giving someone a quaalude in anticipation of “sex” is really setting the stage for rape. Our children should all know that it is.

Children should be taught further that even the most affable and charismatic people can be sexual offenders. In fact, having such traits often makes it easier for these people to commit crimes unsuspected and undetected. A real commitment to ending rape culture entails a commitment to speak openly and honestly about sex and sexual misconduct. In practice, abstinence only policies are, among other things, a frustrating barrier to the full realization of women’s rights.

Sensorvault and Ring: Private-Sector Data Collection Meets Law Enforcement

closeup photograph of camera lens

Concerns over personal privacy and security are amplifying as more information surfaces about the operations of Google’s Sensorvault, Amazon’s Ring, and FamilyTreeDNA.

Sensorvault, Google’s enormous database, stands out from the group as a major player in the digital profiling arena. Since at least 2009, it has been amassing data and constructing individual profiles for all of us based on vast information about our location history, hobbies, race, gender, income, religion, net worth, purchase history, and more. Google and other private-sector companies argue that the amassment of digital dossiers facilitates immense improvements in their efficiency and profits. However, the collection of such data also raises thorny ethical concerns about consent and privacy.

With regard to consent, the operation of Sensorvault is morally problematic for three main reasons. First, the minimum age required for managing your own Google account in North America is 13, meaning that Google can begin constructing the digital profiles of children, despite the likelihood that they are unable to comprehend the Terms and Service agreement or its implications. Their digital files are thus created prior to the (legal) possibility of providing meaningful consent.

Second, the dominance of Google’s Search Engine, Maps, and other services are making it increasingly less feasible to live a Google-free life. In the absence of a meaningful exit option, the value of supposed consent is significantly diminished. Third, as law professor Daniel Solove puts it, “Life today is fueled by information, and it is virtually impossible to live as an Information Age ghost, leaving no trail or residue.” Even if you avoid using all Google services, your digital profile can and will still be constructed from other data point references about your life, such as income level or spending habits.

The operation of Sensorvault and similar databases also raise moral concerns about individual privacy. Materially speaking, the content in Sensorvault puts individuals at extreme risks of fraud, identity theft, public embarrassment, and reputation damage, given the detailed psychological profiles and life-patterns contained in the database. Google’s insistence that protective safeguards are in place is not particularly persuasive either in light of recent security breaches, such as Social Security numbers and health information of military personnel and their families being stolen from a United States Army Base.

More abstractly, these data collection agencies represent an existential threat to our private selves. Solove argues in his book “The Digital Person” that the digital dossiers amassed by private corporations are eerily reflective of the files that Big Brother has on its citizens in 1984. He also makes a comparison between the secrecy surrounding these profiles and The Trial, in which Kafka warns of the dangers of losing control over personal information and enabling bureaucracies to make decisions about our lives without us being aware.

The stakes are growing increasingly high as Google, Amazon, and FamilyTreeDNA move beyond using data collection for their own purposes and are now collaborating with law enforcement agencies. These private companies attempt to justify their practices on the grounds that they are a boon to policing practices and are effectively helping to solve and deter crime. However, even if you are sympathetic to their justification, there are still significant ethical and legal reasons to be concerned by the growing relationship between data collecting private-sector companies and law enforcement agencies.

In Google’s case, the data in Sensorvault is being shared with the government as part of a new policing mechanism. American law enforcement agencies have recently started issuing “Geofence warrants” which grant them access to the digital trails and location patterns left by individuals’ devices in a specific time and area, or “geofence.” Geofencing warrants differ significantly from traditional warrants because they permit law enforcement to obtain access to Google user’s data without probable cause. According to one Google employee, “the company responds to a single warrant with location information on dozens or hundreds of devices,” thus ensnaring innocent people in a digital dragnet. As such, Geofencing warrants raise significant moral and legal concerns in that they circumvent the 4th Amendment’s protection of privacy and probable cause search requirement.

Amazon’s Ring (a home surveillance system) is also engaged in morally problematic relations with law enforcement. They have partnered with hundreds of departments in the US to provide police with data from their customers’ home security systems. Reports suggest that Ring has shared the locations of their customers’ homes with law enforcement, is working on enabling police to automatically activate Ring cameras in an area where a crime has been committed, and that Amazon is even coaching police on how to gain access to user’s cameras without a warrant.

FamilyTreeDNA, one of the country’s largest genetic testing companies, is also putting consumers’ privacy and security at risk by providing its data to the FBI. FamilyTree has offered DNA testing for nearly two decades, but in 2018, it willingly granted law enforcement access to millions of consumer profiles, many of which were collected before users were aware of the company’s collaboration with law enforcement. While police have long been using public genealogy databases to solve crime, FamilyTree’s partnership with the FBI marks one of the first times a private-sector database has willingly shared the sensitive information of its consumers with governmental agencies.

Several strategies might be pursued to mitigate the concerns raised by these companies regarding consent, privacy, and law enforcement collaboration. First, the US ought to consider adopting safeguards similar to the EU’s General Data Protection Regulations which, for example, sets the minimum age of consent for Google Users at 16 and stipulates that Terms of Service “should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms.” Second, all digital and DNA data collecting companies should undergo strict security testing to protect against theft, fraud, and the exposure of personal information. Third, given the extremely private and sensitive nature of such data, regulations ought to be enacted to prevent private companies like Family Tree from sharing profiles they amassed before publicly disclosing their partnership with law enforcement. Fourth, the US Congress Committee on Energy and Commerce should continue to monitor and inquire into companies as they did in their 2019 letter to Google. There needs to be greater transparency regarding what data is being stored and for what purposes. Finally, the 4th Amendment must become a part of the mainstream conversation regarding the amassing of digital dossiers, DNA profiles, and the access to such data by law enforcement agencies without probable cause.

Aid in Dying in New Jersey

photograph of private hospital room with comfort items

On August 1st, New Jersey’s Aid in Dying for the Terminally Ill Act came into effect, and, after the included waiting period, August 16th marked the beginning of its effectiveness. This brings New Jersey into the group of states, including Washington, D.C., that allow terminally ill patients to determine the manner in which their lives will end. Maine has a bill that will go into effect in September, which will bring the group of states/DC that have aid-in-dying legislation to ten out of fifty-one

Legal principles in aid-in-dying cases rest on core values that the US Constitution is designed to protect. The major legal principles that have been relevant physician assistance cases include the Due Process Clause and the Equal Protection Clause. 

The Due Process Clause protects our liberty to make our own decisions about the most important parts of life – like marriage, children, etc. These kinds of life events are recognized by the government as particularly important for individuals and are thus left to individual discretion. The Supreme Court case of Washington v Glucksburg raised the question of whether this reasoning could be extended in order to protect individual choice in end-of-life care. The plaintiff argued that end-of-life is one of those important times in our lives. As such, terminally ill patients should be able to be allowed control and physician aid in dying should therefore be legal. But the Court unanimously held that physician aid in dying was not covered by the due process clause, blocking one avenue to federal protection. 

In the Supreme Court case of Vacco v Quill in 1997, the plaintiff argued that the 24th amendment and the Equal Protection Clause made it the case that physician aid in dying should be legal. The legal principle in the case was that like cases should be treated alike, and the plaintiff argued that “voluntary passive euthanasia” was sufficiently like physician aid in dying. “Voluntary passive euthanasia,” where a patient’s death is hastened by the removal of treatment, was legal. Terminal patients could opt to cease medical intervention and/or life supporting aid such as feeding tubes, respiratory aid, and hydration. Because ceasing intervention amounted to hastening death just as physician aid in dying amounts to hastening death for the terminally ill, we should not allow some patients but not others the opportunity to have control over their deaths. Thus, the plaintiff argued, because we should treat like cases alike, and physician aid in dying is basically the same as voluntary passive euthanasia, physician aid in dying should also be legal. The ruling, however, was that the state did not have an interest in protecting the process of hastening death, and the case is often cited as establishing that there is no state interest in protecting a citizen’s “right to die.” 

Because of these Supreme Court cases, there is no protection at the federal level for physicians to intervene and allow terminally ill patients to control their own deaths. This, however, has not stopped the nine states and D.C. from either legally outlining such a protection through legislation or through judicial precedent. Opposition, on the other hand, is often motivated by the moral evaluation of the intervention more than the legal standing. 

The main values that conflict in the moral debate over aid-in-dying are the inherent value of life on the one hand, and the rights of liberty or autonomy to determine how your life is shaped and will unfold on the other. For many, it is a grave moral wrong to end a person’s life, regardless of the circumstances (for discussion see Marko Mavrovic’s “What It Means to Legalize Euthanasia”). This may be the most central ethical prescription for creatures with the moral standing that comes with being a person. However, for most there are exceptions to this tenant. Perhaps ending someone’s life in self-defense isn’t completely morally forbidden, or perhaps there exists some moral calculus that points to a good (like the avoidance of harm) that could justify the sacrifice of one person’s life.

If we admit cases like these into our moral perspectives, we move away from absolute evaluations and allow for the weighing of morally relevant features; we could think it’s likely that there are other goods which compete with the value in not ending life. Non-interference with how a person wishes to live their life is a core moral value that can be at odds with the duty to preserve life. When a competent person makes up their mind to end their suffering, it is unclear to many that it is right to prevent this. And when there are experts that can ensure a safe and humane procedure, this leads to many advocates defending physician aid-in-dying legislation. Growing support appears to favor allowing terminal patients more autonomy in how they spend and end their final months.

Does Australia Need a Bill of Rights?

photograph of Australia High Court building

Rights are one of the most recognizable ethical tools of the modern world. They have increasingly dominated the way we think about our moral lives – as individuals, as nations and in international relations. Nearly every mature, liberal democracy has a constitutional bill or a charter of rights to which lawmakers and keepers must defer. 

Rights language has become entrenched in the way we speak, that it is often taken as fundamental. A claim that “I have a right to X” will often trump other arguments. A right is an entitlement. A right entails a duty – the right to freedom of expression entails the duty not to impede expression. In theory, if not always in practice, rights have been very important in guaranteeing the dignity, self-determination of persons. They are important because they promote those conditions necessary for well being, for humans to flourish and for society to promote that flourishing. 

But there can be a dark side to rights claims – for example a claim to the right of free speech can be used to protect racism and lies, the right to freedom of religion can be used to protect discriminatory practices and the right to bear arms, enshrined in the US constitution, has made it nearly impossible to tackle the scourge of gun violence in America. 

Some important philosophical questions about rights – what they are grounded in, what things should be considered rights, how they are protected and what to do when rights appear to clash with one another – remain a challenge. Some of these questions are central to the current national debate in Australia over whether a bill or charter of rights should be instituted. 

Australia is the only mature liberal democracy that does not have a charter or a bill of rights. Many feel that the introduction of constitutional rights is long overdue, yet others do not believe that a bill of rights is needed. In fact, many feel that such a bill might even be a hindrance to the administration of justice.  

This has manifested as a tension between ‘old constitutionalists’ who believe that the combined functions of the parliamentary and judicial system provide the best, most flexible and most democratic protections for Australians, versus those who think that the system is failing in some key areas which a bill of rights would help to rectify. 

At the time Australia’s constitution was written, early in the twentieth century, having a bill of rights as part of the constitution was rejected. It was argued that, in the words of former High Court Justice Michael Kirby, “a due process provision in such a bill of rights would undermine some of the discriminatory provisions of the law at that time.”

Some constitutional provisions function as rights provisions– such as freedom of religion. But it is the government’s legislative power which has expanded federal legislation and protected fundamental rights by creating specific statutes dealing with human rights questions or the removal of various kinds of discrimination. Many of these have been based upon Australia’s ratification of international treaties. 

Various parties feel this process has worked well because it gives flexibility to the system, where charters of pre-existing, inalienable rights can make the system inflexible. Up to now, whenever this debate has arisen, the general sense has been that Australia’s parliamentary democracy usually works reasonably well, and its citizens have usually had a high degree of trust in legislators. If they do not act justly, particularly if they act oppressively, they will be dismissed from office at the next election. 

A further objection to the introduction of a bill of rights, that such a bill would lead to a kind of ‘judicial imperialism’ by way of transferring power currently held by the legislative body, to the courts – unelected (usually white, middle-aged, male) judges. The worry is that, a bill of rights could result in the entrenchment of values of said judges into law, in a way that would prevail even over Parliamentary statutes. 

However, the argument that it would politicize the courts and allow too much power in the hands of judges, who are unelected and therefore not as accountable in the democratic system, may be losing ground. One contributing factor is this era of increased populism, from which Australia, following the results of the most recent election, is certainly not immune. In that vein, one could also add the growing  sense that people’s trust in democracy has been eroded through the influence of many different, powerful forces from corporate lobby groups to misinformation spread on social media. 

Nevertheless, the issue of flexibility is still present. As the example of the right to bear arms in the US illustrates, things which may be important fundamental rights at one time, may not be appropriate in another. Having protections enshrined as rights can make them very difficult to amend later. The Australian constitution, like the US constitution, is very difficult to alter, so the worry is that the community could be stuck with rights that end up resulting in more harm than good. 

A bill of rights drawn up now may not have the capacity to deal with problems of the future. We live in an age of such exponential technological change, we may not yet know what problems internet technology, biotechnology, genetics or artificial intelligence may pose. It is not likely that a bill of rights drawn up now would be able to predict or manage all of the issues that these advances might bring. The argument is that it is better to leave rights and responsibilities associated with these issues to be dealt with as they arise by the parliament of the day through the enactment of specific legislation. Such legislation can typically be expressed in far greater detail and specificity. 

On the other hand, the democratic system may have its own flaws when it comes to equal protections for every person. It does, of course favor the majority, and for this reason it is felt by some that a bill of rights is necessary to ensure the interests of minorities and other vulnerable individuals are equally protected. As Justice Michael Kirby, a strong advocate for a bill of rights in Australia, said in a recent address on the subject:  

Democracies look after majorities. Democracies are good in looking after majorities… In America, if President Trump does something which is considered unjust, there is provision for the appeal to the federal courts and ultimately the Supreme Court. But in Australia we have very few weapons if politicians in the majority don’t feel it is a matter they are interested in or that there are no votes in it. 

Though it is true that rights can sometimes be inflexible, and that there are difficulties in deciding what rights to enshrine, how to enforce them, and how to manage situations where they may come into conflict with one another, from the perspective of the question of how a society can best protect minorities or vulnerable individuals it is prudent to remind ourselves about the philosophical case for rights. 

The notion of inalienable rights is based on an ethical principle of equality and dignity. It is a deontological principle which has at its core the imperative to treat persons with respect, as ends in themselves but never as means to an end. This fundamental tenet is at the center of the notion of human rights. 

There have been cases in Australia over recent years in which the government, for largely political reasons, has failed in its duty to treat all people with respect and dignity. A prominent example is Australia’s treatment of refugees, holding them in indefinite detention in substandard conditions for basically political reasons. Justice Kirby argues that: 

Basically, the idea of finding the fundamental principles that bind us together and that our rules for a fair society are principles that should be bipartisan and not consigned to one side of politics.

A bill of rights would ensure that basic protections, like the right to freedom from discrimination and freedom of expression, would be guaranteed for all Australians, and all those under Australia’s protection. Minorities and the vulnerable would be protected from the possibility of legislation which would undermine these things. These protections communicate our convictions about principles like equality, justice and kindness, which is the essence of a good and free society.

Sexual Abuse and the Rhetoric of Powerful Men

Photograph of Brett Kavanaugh with his hand raised in anger

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the third article of that series.   

Brett Kavanaugh’s nomination has been contested since Dr. Christine Blasey Ford alleged that Kavanaugh sexually assaulted her three decades ago. Since Ford, Deborah Ramirez and a third accuser, Julie Swetnick, also have alleged sexually inappropriate behaviour from Kavanaugh.  Initially, Republicans attempted to rush through the nomination. But on facing public outcry about their seeming disregard for normal vetting processes, the Republicans permitted Dr. Blasey Ford to testify at a congressional hearing this past week. Dr. Blasey Ford’s controlled testimony about her experience has triggered a nation-wide distillation of grief and rage from sexual assault survivors.

In the wake of #MeToo, women are rejecting silence about their abusers en masse. Men are starting to get alarmed. Here, I focus on men as accused and women as accusers in part because it is reflective of the norm – one in five women are raped in their lifetime, while one in seventy-one men will get raped. Also, men are overwhelmingly represented in powerful positions, and are beneficiaries of social machinery that operate to keep them there. The suggestion that this gendered distribution of power could be challenged is raising serious anxiety for the Republicans, the party with an overwhelmingly male face. As one anonymous White House lawyer summed it up: “If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried. “

Previously, the burden of responsibility for rape allegations has always been borne by the victim. Women are routinely scrutinized for being the recipients of sexual assault, while men’s actions are diminished as ”horseplay”, or drunken, youthful antics. Here, too, there are gendered laws as to how drink affects agency: a man who drinks automatically has reduced culpability for his actions, while a woman who drinks is de facto responsible for what a man does to her.

Now that the winds appear to be shifting slightly to ask more accountability from men, men are reacting with outsized emotions. Brett Kavanaugh’s petulant tirade following the testimony of his accuser, Dr. Blasey Ford, implied that he was owed one of the highest offices in the land without being subjected to scrutiny. And yet this appears to have worked for Kavanaugh – righteous male rage is an effective strategy to redirect narratives, empathy, and power to male perpetrators rather than to victims of sexual assault.

This indefatigable entitlement also characterizes a broader backdrop wherein men who have been accused by numerous women of misconduct are seeking returns to their former prominence.  Jian Ghomeshi, the Canadian media personality who was accused of sexual abuse by twenty women, was recently given a prestigious platform in the New York Review of Books. Ghomeshi’s self-indulgent essay came under fire for its mischaracterization of his offenses (for example, Ghomeshi said ”several” women had come forward rather than the actual number of twenty, and he characterized his actions, which included punching women in the head, non-consensual choking, and workplace harassment as being ”emotionally thoughtless”). Ghomeshi also expressed claims to newfound empathy, an empathy which seems misplaced in its primary fixation on other accused offenders rather than for the victims of his actions. Widely derided as an editorial choice, the publication of Ghomeshi’s essay triggered the departure of NYRB’s editor, Ian Buruma.  Rather than concede poor professional judgment in publishing an article that was neither fact-checked or published with journalistic due diligence, Buruma mourned that he simply wanted to hear from Ghomeshi after he was tried by a ‘court’ of social media, but found himself ‘pilloried’ in turn.  

This example reflects a common strategy of the sexual politics surrounding #MeToo: men rhetorically adopting the position of hapless victim of hearsay and public shaming, asking for ‘due process’ – whatever that is supposed to mean outside of a judicial system.  Surprisingly enough, judicial-sounding tropes of ‘courts’ and ‘due process’ in the context of public opinion have been rejected by none other than Mitt Romney.  In 2017, Romney tweeted in support of Leigh Corfman against Roy Moore, sayingInnocent until proven guilty is for criminal convictions, not elections.” Mitt Romney has a point. This rhetorical strategy may seem persuasive on its surface, but does not hold up to scrutiny. ‘Innocent until proven guilty’ and ‘due process’ are concepts which reflect a high standard reserved for criminal and civil prosecution, because inflicting punishment by the state is reasonably held to a high standard of proof.

Public opinion, on the other hand, does not and need not operate beyond the shadow of a doubt. Most of our decisions about people’s characters in everyday life and politics are made with reasonably plausible levels of certainty, rather than courtroom levels of certainty.  What these pleas for impossibly high standards of proof in talking about rape truly advocate is preventing any outing of powerful men as sexual offenders. But powerful men do not need our continued support. They need it least of all in a world where only six out of every 1000 rapists will ever end up in prison and it takes sixty female accusers to persuade a court that one powerful man is a rapist. And yet, these same men who rail against their accusers should be the first to seek to clear their names by formal avenues.  If Brett Kavanaugh were truly convinced of his own innocence, he should have pleaded for an FBI investigation, rather than Dr. Blasey-Ford.

Today, op-eds abound asking whether high-profile sexual offenders have finished their time-out yet, or ask whether #MeToo is ‘going too far’, revealing a strong identification and concern for powerful men who have abused their power. Surprisingly, these same voices show a complete lack of curiosity and vision regarding the present and future of victims who have come forth in the tidal wave of confessing their experiences, often at great personal cost.  When do they get to reclaim their power, productivity, joy, and carefree lives?

In this pivotal historical moment, it is important to reflect and critically scrutinize the use of hyperbole as a rhetorical power play. Misapplied uses of language can obfuscate who are the real victims in an imbalanced state of affairs.  Misleading rhetoric can even re-victimize those who have already been violated, while reaffirming the status quo. As Aristotle proposed in the first book of the Rhetoric, citizens and thinkers must peel beneath rhetorical performances to evaluate where the better case for justice lies. It may not necessarily rest with those who are protesting the loudest.