Roe V Wade was overturned: but is safe access to abortion as easy as you think here?

Today’s reading comes from the Gospel according to Sam Oak.

Justsaying, I think there’s a reason why Roe vs Wade has been attacked by numerous legal scholars ever since the judgement.

I’m not going to claim to be a US constitutional expert but having read a fair bit on the interpretations and judgements over time, there does some to have been some serious stretching as to what the US constitution says about what exact “rights” are either explicitly or implicitly implied within. Judicial activism isn’t a new thing.

Surely though this should be good for democracy. The democratically elected state representatives can do what they are supposed to and enact new legislation in line with what people want? The power sits with the legislators rather than judges.

If people don’t like the outcome, they can vote for someone else.

There’s also nothing that’s been stopping their federal government doing the same over the last few decades either.

I will say that the above assumes the US democratic process actually works which is obviously debatable considering the amount of (IMO) crazy legislation that they come up with.

This is exactly why US founders like Hamilton objected to enumerated rights. It leaves them open to misinterpretation or saying that something isn’t a right because it isn’t listed.

I did not support a Bill of Rights in Australia on these grounds, preferring to rely on the assumption that we would instead rely on natural rights. That’s also exactly why we need accountability for the last two and a half years.

JustSaying, separation of powers is fine, it is the lack of separation in the appointments process which is problematic; Australia too. Here is a brief commentary on ours from the parliamentary library:
https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2021/November/Judicial_Appointments
Mabo was not decided in the 1920s, and our right to political communication is recently inferred, not so explicit in our Constitution. This is “progressivism” or “activism” vs “black-letter” or “originalism”, another debate.
Chewy, not only did the Dems never legislate but they did not even repeal the 1976 Hyde law banning government funding. Pusillanimous. Left the division wide open.

The Silver,
But with regards to the specific issue of abortion, there would still be a contest of natural rights because, what’s at stake is really around when those rights would be conferred to human beings and the interaction of the competing rights of two people.

@TheSilver “the assumption that we would instead rely on natural rights” … interesting, you are not in favour of documenting rights, but rather prefer nebulous and unquantifiable ‘natural rights’. Perhaps you can explain how the High Court of Australia can rule on a challenge to a breach or the upholding of ‘natural rights’

@chewy14
Yep. And that’s the beauty of the Common Law system. When two rights come into conflict, they are adjudicated by the courts. This is why, I think, abortion has never been as big of a political issue in Australia as in the US, because we retained more of the English system rather than importing French ideas.

@JustSaying
It requires more vigilance, that’s true, but I think it is worth the cost. Again, that’s why we must have accountability for what was done.

That said, as phydeaux points out, a right to freedom of political speech was inferred in the 90s, you can’t get much clearer about freedom of movement and association than Section 92.

@TheSilver (Sorry – I posted this in the wrong place) Unfortunately I think the application of the theory of “natural law” requires much more than just vigilance, it requires a crystal ball as I don’t see how the High Court can rule on something that is nothing more than a concept.
As for your citing of Section 92 of the Australian Constitution (which actually relates to “Trade within the Commonwealth to be free”)? The High Court has twice ruled (Palmer V WA, Gerner V Vic) that the public health orders did not (do not) breach Section 92 of the Constitution. So you are right “you can’t get much clearer about freedom of movement and association than Section 92” – i.e. it doesn’t exist.

@chewy14
Yes – you are totally right. If you remove the (IMO) “emotion of what’s right” from Roe V Wade there are issues. I guess the reason it has stood as a precedent for so long is that many felt (feel) the outcome of the ruling was more important. Nevertheless that doesn’t override the underlying principle that you have outlined.
However, I think phydeaux has nailed the problem – “it is the lack of separation in the (judicial) appointments process which is problematic”. Mind you, as I mentioned earlier, that same lack of separation in the appointments process, probably led to Roe V Wade in the first place.

TheSilver, the High Court relied on sections 7 and 24 to find freedom of political communication, not s 92.

@phydeaux
Yes, I know. My point was if the court could infer a freedom of political communication into those, then freedom of movement and association should also be inferred from s 92, which is makes the point far more obviously.

At any rate, I don’t think that’s the appropriate way to infer rights. I’m just saying it would be the consistent approach to take with how the court acted previously.

Ooops autoenter on tablet kicked into too soon

Thank you for the clarification, chewy14 … and you are right the High Court ruled at a time when border closures were in force across multiple jurisdictions.

The point I was making to TheSilver, was at that time, his citing of “freedom of movement and association under Section 92” was denied by the High Court who upheld the Constitutional validity of the restriction on (implied) ‘freedom of movement’ via border closures (Palmer v WA) and the restriction of (implied) ‘freedom of association’ via lockdowns (Gerner V Vic). I just didn’t put it as eloquently as you 🙂

@TheSilver – nice attempted cheap shot at the COVID-19 response. Shame you are in the minority there – unlike the overturning of Roe V Wade, where the majority of Americans are against it (https://amp.cnn.com/cnn/2022/06/27/politics/americans-disapprove-supreme-court-abortion-poll/index.html)

These things matter most in an emergency. It’s easy to be a saint in heaven. We failed.

To be clear, I’d have no problem if we were asked and would be happy to have gone along in that case. I have a problem with coercion being used to achieve a political goal.

Who is in the minority or majority doesn’t matter anyway. Democracy is not three wolves and a sheep voting on what to have for dinner. There are natural rights that exist prior to government and government cannot infringe on. Otherwise you are arguing that the government could legalise rape if that’s what the majority supported.

Agree with you 100% @TheSilver. The Australian Governments (both Fed and State) behaved appallingly during the last 2 years removing human rights from citizens. And they continue to behave appallingly. Shame on the governments. People have the right to bodily autonomy in all matters affecting their own body whether it be abortions or the use of medical drugs. Coercion is not consent.

TheSilver wrote: “I have a problem with coercion being used to achieve a political goal.”
Why say “political”? Is that your pejorative for any social goal with which you disagree? If I were to take your sentence literally then I would agree (I don’t like dictatorships either) but in social terms all law coerces behaviour.
This goes also to your other comment at 8:54 am. Yes, a society could legalise rape, to use your crude example. Arguably, many have and some still do, or at least condone with nominal penalties or “bride price”. Rights are a function of your society and the directions in which its people steer it, which explains why “natural” rights have expanded over centuries, so that today minorities (or even half the population) stand a chance.

@joriel1 and TheSilver … how did you lose autonomy over your bodies? Nobody took away your choice to have/not have a medical procedure – I assume you are both still not vaccinated against COVID-19, BY CHOICE!. Similarly, abortion was never mandatory in the US – women just had a choice to access / not access the medical procedure throughout the country.

@TheSilver More than 95% of Australians over 16 are fully vaccinated against COVID – even you have to admit that’s a majority. I don’t believe any sheep or wolves have been vaccinated. Anyway – that’s done and dusted … Roe V Wade is in the here and now

Just Saying,
The only thing Roe vs Wade has changed is the constitutional status of abortion as a right.

As you say, most Americans support abortion as they do here. American state legislatures are now in the exact same place that our Australian ones are.

More encouragement for people to get out and vote for candidates who align to the electorate’s wishes on the issue.

Indeed, social goals should not be done with coercion either. I’d object to anti-sodomy laws on freedom of association and bodily autonomy grounds even if I never engage in sodomy myself. I have no problems with incentives though. For example, changing the way we do organ donation to opt-out rather than opt-in seems like a good idea to me. The choice still exists, but the default changes.

I think this is the foundation of all English derived common law systems of government, when it was combined with Christianity. If we are made in the image of God, then there is a spark of the divine in each person, and therefore they are entitled to dignity because otherwise you are desecrating the diving aspect of the person. English Common Law had a similar idea in the way it was built up by precedent. You had *all* the rights, and the judicial precedent would be used to adjudicate when two rights came into conflict. Indeed, that’s how we decided that slavery was morally abhorrent 200 years ago. Try to make an argument against slavery that doesn’t depend on natural rights. It’s possible, but it’s pretty hard, and isn’t easy for us in societies that mostly have Common Law based Christian morality (even if most of us are secular, including me, our morality is still derived from these foundations).

The problem I have is that undermining these foundations could cause our entire system to collapse. There must be accountability on this front or everything we rely on collapses. The undermining of the natural rights principle means that rights are not innate and inalienable, and any future government can mandate anything: i.e. you do not have self ownership.

@JustSaying
Why would you assume that? I also object to coercion being used for decisions that I would make anyway.

@jorie1 One thing to be careful of is that human rights are not equivalent to natural rights. After WWII, the United Nations did try to codify these things, and the Nuremburg trials also tried to answer some of the questions. However, as natural rights are derived from Christianity, and most of the world is not Christian, what the UN came up with as human rights is not the same thing. In particularly, you have to be careful with the difference between positive and negative rights.

Being coerced into doing something is not the same as giving free and informed consent. The Australian governments (Federal and State) punished citizens for exercising their right to bodily autonomy. Citizens who did not want to receive these drugs were excluded from society and sacked from their jobs, banned from buying food and clothing, banned from restaurants, stopped from going to school, denied medical care, stopped from seeing their families etc. Even today, those who have not take these drugs are still banned from leaving Australia (except if ‘special permission’ is granted by the government to them). It is disgusting and beyond belief. Citizens should never be punished for exercising their human rights.

@jorie1 You were/are entitled to opt out of the vaccination program for COVID-19. However, as your choices may have implications for others, your decision has consequences. While you have the right to bodily autonomy, you have to accept the consequences of exercising that right – especially if your decision has the potential to impact the health of others.You may not agree that non-vaxxed people are putting immuno compromised and/or vulnerable people at risk, but that’s irrelevant – medically qualified people have made that assessment and that’s fine by me. I really don’t care that you feel you have been “punished” for exercising your rights – others have the right to not have their health put at risk by your choice. Just as non-smokers have the right to be protected, healthwise, from those who exercise their right to smoke.

TheSilver wrote, “social goals should not be done with coercion either”.
So what is law? You skipped that. Of course you are not “coerced” when you agree with it. You (and jorie1) claim mysterious “rights” when you disagree.
All subsequent sentences in your 1.04 pm can be answered with “No”. For example I find it easy to mount an argument against slavery without resort to “natural rights” but you would need to change several of your assumptions to see it, and that is not a topic for Riotact, and not going to happen anyway.

Which is exactly the argument made against abortion: The foetus has the right to bodily autonomy, and you are not being “punished” by being prevented from ending its life.

@phydeaux
The role of government with law is to resolve coordination problems.
I’d be very interested to hear your argument against slavery that doesn’t rely on natural rights.

@TheSilver There was no coercion just consequences for some who chose not to be vaccinated. Those consequences were that they were not entitled to put other more vulnerable Australians at risk because of their choice.

@JustSaying. There is no human right to smoke, but there IS a recognised human right that individuals cannot be forced or coerced by the State (governments) into taking drugs, particularly experimental drugs (see UN treaties and ICESCR, which Australia is a signatory to). The comparison of asking a smoker to go outside for a cigarette is very different to making someone unemployed because they are exercising their human right to not be injected with a drug (sacking them, losing their job, losing their house, cannot pay bills, food etc.). Human rights should be defended and governments should protect human rights, not cast them aside. I disagree with the rest of your analysis. In fact, it’s like me saying ‘you may not agree that pregnant women should be denied abortions, but that’s irrelevant – legally qualified people (the US Supreme Court) have made that assessment.’

Nice try, jorie1. Unfortunately your libertarian argument falls flat, because no-one has been coerced into being vaccinated. Rather those with the authority to so, have introduced a health order, based on expert medical opinion and evidence, and supported by an overwhelming majority of health professionals. You can stamp your feet as much as you like, but there’s no infringement of human rights here, just anti-vaxxers having to wear the consequences of their decision.

@JustSaying It is quite amazing to read opinions like yours, in June 2022, with Covid having already infected half or more of our 97%+ vaccinated community. Somehow I suspect nothing will ever change your mind.

TheSilver, if the role of law is to “resolve co-ordination problems”, how do people co-ordinately resolve their speeding? Their embezzlements? Murders? Being photographed using your phone while driving? Whatever. You seem to be scratching about madly.

Regarding your second question, please re-read what I said about assumptions because there will founder this discussion. Core assumptions are defended in our minds like we would protect our bodies physically. Contrary arguments do little to convince because we busily defend our assumptions, those often being how we view ourselves, our core being. It is not easy to get past that (as you can read in literature about conspiracists and fantasists) and it is not in itself a matter of intelligence. Rather, change happens when you willingly question your own assumptions. However, you asked so I will answer.
The argument is obvious from Kantian or Consequentialist ethics (giyf), given only the factual premise that taxonomic “race” is non-existent in homo sapiens sapiens, even though some may have differently coloured eyes.
To help you understand the argument (albeit I think your assumptions will reject it), please ask yourself how you think such things would progress socially and economically given there is no god. Given that, whence do your “natural rights” derive? See the difficulty with this discussion?
Maybe ask the Haitians, first country to abolish slavery, whose slaves killed their “masters” because it improved their economic and social welfare. Their principles followed their interests and our interests are broader than they first seem.

Hi CaptainSpiff.
Somehow I suspect nothing will ever change your mind.

@CaptainSpiff Nobody in medical officialdom ever said that vaccination delivered immunity from COVID, but rather it reduces the chances of getting it and if contracted reduces the chances of hospitilsation or death. This RACGP article (https://www1.racgp.org.au/newsgp/clinical/unvaccinated-patients-dominate-covid-deaths-and-ic) from Sep-2021 reported that unvaccinated patients dominate COVID deaths and ICU. This has been the concern all along, that COVID would overwhelm our alteady stretched health servics. So I will happily change my mind on vaccination when a credible medical professional who I trust, such as my GP, tells me it is no longer warranted – and I’m certainly not going to change my mind on the say so of an anonymous, unqualified social media commentator.

@JustSaying You’ve said several times that unvaccinated people put vulnerable people at risk, e.g.:

“You may not agree that non-vaxxed people are putting immuno compromised and/or vulnerable people at risk, but that’s irrelevant – medically qualified people have made that assessment and that’s fine by me”

But from your most recent comment it appears you agree that vaccinated people *do* transmit the virus. So how do you justify punishing unvaccinated people, when vaccinated people also transmit the virus?

JS none of that is proven. Omicron was never ever predicted. The virus evolved into something extremely mild simple as that. That is the biggest reason for the drop in hospitalisations not the vaccine. It’s a completely different virus and about as effective as taking the Measles vaccine to protect you from the flu!

@phydeaux
Laws against murder are about punishing rights infringement; it isn’t solving a coordination problem.
How we make use of the roads or the financial rules we operate under are coordination problems. Even the Canberra tram addresses a coordination problem – how to make use of public funds.

I have no particular problem with Kantian ethics. I think they can be reconciled nicely with my point of view. Indeed, the Categorical Imperative is entirely about treating people as ends in addition to means, which is exactly the point I’m arguing from Natural Rights. From that perspective, my problem with government action over the last two and half years is that they have tried to compel virtue.

@TheSilver Unfortunately I think the application of the theory of “natural law” requires much more than just vigilance, it requires a crystal ball as I don’t see how the High Court can rule on something that is nothing more than a concept.
As for your citing of Section 92 of the Australian Constitution (which actually relates to “Trade within the Commonwealth to be free”)? The High Court has twice ruled (Palmer V WA, Gerner V Vic) that the public health orders did not (do not) breach Section 92 of the Constitution. So you are right “you can’t get much clearer about freedom of movement and association than Section 92” – i.e. it doesn’t exist.

That’d be based on your extensive medical knowledge, Sam Oak?

Sam Oak,
New variants were predicted, what are you talking about?

And the vaccines have been shown to remain extremely effective against serious disease and death even with the new variants.

Over time, the vaccines may not be needed or become like the yearly flu vaccine. But the idea that the haven’t made a massive difference to the rates of transmission, serious disease and death ignores the real world evidence and scientific research showing the opposite.

@CaptainSpiff
Yes, vaccinated people do get the virus and transmit it. However, the chances are much higher that unvaccinated people will contract the virus and may transmit it.

According to all credible medical professionals, the best ways to avoid COVID are vaccination and to as much as possible reduce contact with others. People who are vulnerable/immuno-compromised do just that, by consciously avoiding high risk situations where they might encounter infected people and, if they are medically able to do so, getting vaccinated.

There are some circumstances where vulnerable and immuno-compromised people cannot avoid contact with others – and in those circumstances, health orders were put in place to reduce the chances of them contracting the virus from those with whom they come into contact – i.e. a vaccination requirement.

It’s time to drop the emotion and look at reality, CaptainSpiff. No-one has ever been punished for not being vaccinated – not one person. There have been (negative) outcomes, through health orders, for some who chose not to be vaccinated – but, for all of us, our choices have consequences.

So I don’t need to justify what isn’t happening. What is happening, is people have made a conscious choice to not be vaccinated. That choice had consequences (of which they were fully aware) and now you (and others, who may or may not be affected by this choice) are crying foul.

Chewy, you seem to have an unshakeable faith in science and authority. Anyone can claim there will be new variants, it doesn’t take an oracle. What they can’t tell you is what those variants will be and how they will react to the vaccines. And no it is not possible to predict, unlike the flu that evolves in a ladder like pattern, COVID swaps genetic material among its variants. Science doesn’t know where Omicron came from let alone the original strain. Perhaps it’s jumped into animals and back to humans. They only just made an Omicron vaccine and it’s already obsolete from B5 variant. But sure go believe in your magic cure for all ills. The placebo effect is something that works too but science doesn’t understand!

“As for your citing of Section 92 of the Australian Constitution (which actually relates to “Trade within the Commonwealth to be free”)? The High Court has twice ruled (Palmer V WA, Gerner V Vic) that the public health orders did not (do not) breach Section 92 of the Constitution. So you are right “you can’t get much clearer about freedom of movement and association than Section 92” – i.e. it doesn’t exist.”

Just Saying,
Maybe you’ve mistaken here but that’s not what the High Court found.

Section 92, refers to trade, commerce and intercourse between the states.

The right of freedom of movement and association clearly do exist and can be covered under S92 but the court found that those rights can be limited with competing rights. They aren’t absolute. In Palmer’s case, those competing rights were the lives and health of the citizens of WA.

If the government of WA tried to shut the border today and was challenged, it’s almost certain it would be deemed unlawful.

The whole question is whether the punishment (or “consequence” as you call it) is proportional to the risk posed.

Vaccinated people have spread Covid through all of Canberra, including to vulnerable persons in hospital and aged care homes. Yet you (and many others) still believe it was justified to threaten unvaccinated people with job termination, travel restrictions, lockdowns, and in general making them into 2nd class citizens. What was it all for? I am genuinely curious what benefit you think those coercive measures had.

Sam Oak,
Are you seriously suggesting that it’s unreasonable that humans can’t predict the exact form of new viruses? That unless they can predict the future, scientists aren’t useful?

Wuth regards to Covid scientists have predicted that new variants will emerge and specific parts of the virus genome that are more likely to evolve. It’s how they continue to build the knowledge base on how the virus acts and how they identify new treatments.

“They only just made an Omicron vaccine and it’s already obsolete from B5 variant”

This isn’t remotely correct. You seem to be of the opinion that unless a vaccine is a 100% effective neutralising vaccine, then its useless.

Except no one is claiming these vaccines will do this, no one is making claims around a “magic cure all” except you.

The clear outcomes of the research on the vaccines shows they are very effective against reducing serious disease and death but have become less effective (although not useless) against reducing transmission.

Over time we probably won’t need them, but to deny their impact and effectiveness to date is to ignore reality.

TheSilver, society cedes coercive power to the State (with some limits), impersonal rules instead of personal control or vengeance. Your attempt to re-frame this as merely co-ordination with a bit of punishment, pretending that, for example, laws requiring seatbelt-wearing or denying drivers using mobile phones in hand are not coercive, is just silly (nothing personal, it is the idea that is silly). Last I looked, the Canberra Tram was not a court of law either.
I did not claim a deontological view of ethics nor have one. However, I note that you do not deny that a simple application of either of the ethical systems I mentioned suffices to render slavery a moral or practical ill.

These “Natural Rights”, they still have no provenance. Yes, I have read the wikis and the blurbs. They suffer likewise. They are chosen definitions.

@phydeaux
I didn’t mean to argue they weren’t coercive, but I can see how you could have inferred that, I’m sorry. The point I was trying to make was that after protecting Natural Rights, the other purpose of government was to solve coordination problems. Those are examples of coordination problems, because they are ultimately complex prisoner dilemma problems. Each individual’s incentives would lead to a worse outcome than having a disinterested authority coordinate a better solution. This is where democracy absolutely makes sense, because the solution will be relatively arbitrary, and different solutions can solve the problem in different ways. e.g. it doesn’t matter if we drive on the left or the right, as long as everyone agrees on the side. On the other hand, the government should not be able to make a law that legalises rape or murder, regardless of popularity, because it attacks Natural Rights.

There is no significant difference between Natural Rights and the Kantian view that you must treat people with dignity. Asking the question where do Natural Rights derive from is not epistemologically different from asking why you should treat people with dignity. You have to accept some axiom, on faith, about why you should behave towards the “good” regardless of how you define “good”. Further, I’m not conceding that a Kantian view against slavery is fundamentally different from a Natural Rights view. Whether you say it is a moral ill because you must treat people with dignity or because they contain a spark of the divine is fundamentally the same argument.

Thank you for the clarification, chewy14 … and you are right the High Court ruled at a time when border closures were in force across multiple jurisdictions.

@CaptainSpiff porportional assessment is subjective … you don’t think it was appropriate – I do. The justification for the health orders is evidenced by the fact that until 90% of the population was vaccinated, across the board restrictions were in place – including border closures and limitations on travel for all. Since that milestone has been reached there has been a marked relaxation of those restrictions, in line with the enevitable “live with COVID” plan, and as expected there has been increase in infections, but the population as a whole is much better equipped to handle that increase as a result of the high take up of vaccinations. That’s the benefit of the restrictions and health orders. You don’t agree – that’s fine … perhaps it’s time to tell someone who cares.

TheSilver, in your reply of 12:53 pm on the 30th you seem to have failed to notice that earlier I disabused the notion that my ethics were deontological, so when you write: “the question where do Natural Rights derive from is not epistemologically different from asking why you should treat people with dignity” you make no useful statement to me. They are a couple of unfounded assertions (and by the way, Kant did not say that; you inferred it as an expression of your own thought). Undemonstrated statement A being like random statement B is uninformative for anything.
Show a source, some provenance for “natural rights”, or grant that they are your preferred assertions based on your core assumptions, and of no inherent utility as JustSaying accurately pointed out a couple of times back on the 29th and 30th.

From a consequentialist perspective, what governments did was also an unmitigated disaster. The economic problems we’re currently experiencing were predicted in 2020, and obvious to anyone paying attention then. Global food shortages were also obviously predictable, and conceded by the IMF as late as June 2021, more than 6 months before Russia made things worse. (It’s also arguable whether Russia invades at all, or on the same timeline, as the collapse in oil prices due to lockdowns in late 2020/2021 massively impacted Russia given how heavily their economy relies on fossil fuels.) We’re only just getting started on that front too. The Arab Spring was a direct result of the (relatively mild) pressure put on food prices by the Financial Crisis, which was 3-4 years prior. Sri Lanka is but the first country to collapse as a result of pandemic policy. Turkey is on the brink already. More than 75 million people have been pushed into absolute poverty by government action, as a lower estimate, given those figures don’t include the coming famine. Then there’s the non-virus health outcomes. Many missed diagnosis by people not getting tested, and in poorer countries an entire generation has missed out on standard vaccinations. Anecdotal, but in my age group, the number of people who got out of the habit of exercise due to lockdowns is going to be a health bomb in 20 years if nothing is done to encourage them to take it up again. Then there’s the damage done to children who were never at risk. Around the world an entire generation of children will now never complete an education. Not to mention the social and political turbulence that will come as a result of the previous outlined problems.

Here’s someone pointing all this out in March 2020:
https://www.statnews.com/2020/03/17/a-fiasco-in-the-making-as-the-coronavirus-pandemic-takes-hold-we-are-making-decisions-without-reliable-data/