When I heard that President Biden had organised the “Summit for Democracy” to defend democracy against rising authoritarianism, I raised my eyebrows. Were we again witnessing yet another moment of “do what I say, not what I do” by a President of the US? I realise that snickering when President Biden said“If the US doesn’t convene world democracy, it’s unclear who would” is a childish response; but the cynicism involved in this “Summit for Democracy” was impressive even for the US. In a period where US democracy is under threat by Legislatures and the Supreme Court of the US (SCOTUS) and when the US itself has never incorporated human rights law into its own laws, one cannot help being cynical in what is clearly, once again, a claim by the US that it is the only and best democracy on the planet. The fact that Biden can do nothing to stop ongoing attacks on civil rights in the US means that the US’s legitimacy to be seen as the “best democracy on the planet” and to be leading a struggle for human rights is, to say the least, absurd.
This does not in any way mean that I support the rise of authoritarianism; it is extremely worrying that we are seeing a revival of fascism and the consolidation and normalisation of the far right in politics in countries around the world. The left is weak and divided and the far right is growing and consolidating its power. My point is neither to deny that this is happening, nor that we shouldn’t be worried about it; my query relates to the assumptions of the US government that they have any legitimacy to be speaking about this.
That the Summit for Democracy occurred on Human Rights Day was meant to be a message; the US government loves talking about Human Rights. There should also be no surprise that a whole series of sanctions against individuals, countries and organisations for human rights violations came in the wake of this meeting. There is no question that we need to be concerned with rising authoritarianism in the world today along with attacks on democratic principles; we can see this process in Brazil, Byelorussia, China, Hungary, Poland, Russia, in Great Britain, and, of course, in the US. Yes, I have said Great Britain … and the US …
I have been feeling like Cassandra for a while now. You know the feeling; you look at a situation and say this will be the obvious result of what is happening. Then people respond by saying you are exaggerating and this and that and what you are saying will happen can never happen. What interesting history, people have said, but it has nothing to do with what’s happening today ... I would probably be less angry and bitter if I had not warned about the danger of the overturn of Roe vs Wade and its implications for Griswold vs Connecticut in severaldifferent articles over the past 3 years, the most recent one here…
What’s happening in Britain?
To add to my feelings of Cassandra-ism, I’ve also warned several people that the British government is going to have to overturn EU Human Rights Law directly as the victorious Brexit crowd somehow missed the obvious point that since the EU convention on Human Rights was part of British law, Brexit would not eliminate those laws that they found so deeply uncomfortable and problematic such as workers’ rights, the right to protest, assemble, human rights of refugees and migrants.
Dominic Raab
We are already experiencing the introduction and passage of new laws coming from the British government specifically from Dominic Raab (currently the Justice minister who has no idea what the word misogyny means and who was too busy on holiday when he was Foreign Minister to take a call from the Afghani Foreign Minister as the country fell to the Taliban) and our Home Office Minister Priti Patel. The government has been so disturbed by Black Lives Matter and Extinction Rebellion protests that they introduced a massive attack on the Right to Protest using the Policing, Crime, Sentencing and Courts Bill (PCSCB) which also widened stop and search measures (just like the US, they affect people of colour disproportionately), and attacked the right of Gypsies, Roma and Travellers to roam.
Priti Patel
In response to the Insulate Britain Protests she has amended the PCSCB to add criminal provisions for disruption of motorways and allowing police to search people to seize equipment. She has also criticised the National Lifeboat Lifeboat Institute (whose role is to protect people in British waters that have run into trouble at sea) because they have rescued refugees and migrants in the English Channel. A series of Bills have cleared the House of Commons (they are in the House of Lords for review) that are a major attack on democratic principles, these include the right to protest, freedom of assembly, and protections for migrants and refugees (see the Nationality and Borders Bill), we can expect other Human Rights to be undermined when Raab’s bill is brought to the Commons. Already 5 protestors that took part in the Brighton Kill the Bill Protest on the 21st of March 2021 in response to the PCSCB were sentenced to 14+ years due to protests in Bristol; yesterday another man that took part in the protests was jailed for 14 years for trying to set 2 police cars on fire. These rights that are under attack are basic democratic rights as well as guaranteed human rights; we must support the existence of these rights and cannot remain silent.
Human Rights and the US
I was recently explaining to a couple of British friends what was happening in the US with the upcoming overturn of Roe vs Wade, my concern that the SCOTUS may overturn Griswold vs Connecticut depending on how they overturn Roe (if they argue that women do not have the right of privacy in terms of whether or not to continue a pregnancy) and its implications for people (especially the oppressed) in the US if Griswold was actually overturned. One of my friends asked “wouldn’t making abortion illegal be a violation of Human Rights Law?”
My response left them shocked; I said that would be the case if the US had actually introduced Human Rights Law in the US. But, they have never done this; essentially the US has not ratified either the UN Convention on Human Rights (initiated by Eleanor Roosevelt) nor the American Convention of Human Rights (1969) despite being initiated by the US – the ratification process for the latter were done in 1978 during President Carter’s term in office. While the US was a signatory to both of these documents, they have never been ratified which means that these laws have not been incorporated into US Constitutional Law and hence in regular legal practice.
Moreover, while the US Senate did sign and ratify the International Covenant on Civil and Political Rights (ICCPR; 1992), they introduced several references, declarations and understandings which essentially invalidated the covenant and made certain that it was not incorporated into US law (the Constitution remains safe from these unsavoury things that didn’t exist when the US was created). Given that these laws are not seen as self-executing, that means that the ICCPR has no impact on US law and it was explicitly stated that Americans could not initiate a case on the basis of the ICCPR or demand protection based on this covenant that the US has signed and ratified (with lots of references, declarations and understanding).
The stated reason for all these non-ratifications and ensuring that the ICCPR is not self-executing derives from the fact that the US refuses to allow a situation whereby the US Constitution may be superseded by such problematic things as human rights. Human rights are problematic things because, in theory, they do supersede civil rights which are granted in a country’s constitution and are seen to exist whether or not a state actually accepts their existence; they are beyond civil rights, they are deemed universal whether or not your state submits to them. As such, even if the US refuses to recognise the existence of human rights law you don’t theoretically lose your human rights, except that you cannot make use of them in court or in everyday life …
Civil and Human Rights under attack in the US
So, you may ask the question, if the US has never felt bound by International Humanitarian Law, International Human Rights law, etc what gives them the right to accuse other countries of violating human rights? Perhaps that is what Biden meant when he said “we’re back!” In other words, it is a case of “do what I say, but not what I do”… but there is clearly an attempt to use the notion of human rights as a political ploy which is deeply cynical … and those in glass houses and pots and kettles and all that …
In the US, alongside of bizarre understandings of the Constitution (see Originalism for example), there is this perspective that somehow the Constitution is some sort of “sacred document” developed by semi-divine forefathers who could foresee the future and hence there is never any need to amend it. I have even heard statements from legislators that the vote is “sacred”– it is not sacred, there is nothing religious about it (it doesn’t come from a God, or any divine or semi-divine authority), it is a civil right that many have fought very hard (and even died) to obtain and exercise.
One of the weirdest advertisements from the past came from the National Rifle Association (NRA) which said that those who were trying to outlaw guns were trying to “change the constitution”– really did they never hear of Prohibition and its repeal, the outlawing of slavery and granting civil rights to former slaves? This perspective of the Constitution is that it makes it seems as though law doesn’t change over time due to changing circumstances; which is extremely strange. Clearly, humanity and societies have changed over time and the law has changed with this; in point of fact, alterations in the law and in constitutional interpretation happen regularly to reflect changes in circumstances and perceptions of society. It is an extremely useful tool used by legislatures, governments and the judiciary. I have heard a misreading of the Code of Hammurabi, which for some reason people quoting “an eye for an eye” do not realise that it is about proportionality in punishment; e.g., that you should not be executed for theft for example. To be honest, the NRA advertisement was not the first time that I have wondered if I am living in a parallel universe, this happens constantly when I get into discussions about politics with people.
Moreover, let’s talk about the history of the US with slavery, Jim Crow Laws (which still existed after the original UN Declaration on Human Rights), and the genocide of Native Americans. Well, you think that’s in the past … human rights did not exist then, and slavery was made illegal … but we cannot raise the notion of reparations, can we?
We can raise as well what is happening currently in terms of attacks on voting rights of people of colour in various states, the dilution of people’s voting rights through gerrymandering and other rules and regulations designed to weaken voting rights for those who will vote Democrat, many US governments and states penitentiary and criminal justice laws violate international human rights laws (e.g., the death penalty and loss of voting rights by prisoners) and let’s talk about the overturn of a civil (constitutionally granted right) by an unelected Supreme Court of the US. All of these rights are considered human rights in all International Declarations and Treaties relating to human rights. So when voting rights are under attack, when women’s reproductive rights are facing elimination on a federal government (as well as state) level, how the hell can the US government be pretending that they are the bastion of democracy and expect other governments to just go along with it?
Civil Rights and Democracy in the US
My concern about the overturn of Griswold began in 2019 during Amy Coney Barrett’s hearings for the Supreme Court of the US (SCOTUS) when Senator Amy Klobuchar asked her whether she considered Griswold a safe, landmark decision and Coney Barrett responded saying that she doubted that a case involving Griswold would be heard by the SCOTUS. A frisson ran down my spine.
Will an attack on abortion rights involving Roe and Doe affect the Griswold decision or not? Well, theoretically it may not; but on what basis will they overturn Roe and Doe? If it is based on the idea that women do not have a guaranteed constitutional right of privacy or due process under the law to determine their own reproduction, then certainly this decision will impact on the Griswold decision. Moreover, that the SCOTUS refused to prevent the Texas anti-abortion bill from coming into effect as it was under appeal (which is normal procedure) as they were interested specifically in the use of vigilantes to track people that helped a woman get an abortion, one cannot help worrying about the safety of the Griswold vs Connecticut decision. Really, how can the use of vigilantes to stalk women not be a violation of women’s right to privacy? Can a state allow an individual to stalk a woman to find out whether she has had an abortion and who has assisted her even if they had no knowledge what she is doing? Is there any way that this can be justified if women are citizens with “equal justice under the law”?!
The overturn of Roe vs Wade (and perhaps the 1965 Griswold vs Connecticut), of course, is not the first time that a federal civil right has been overturned, but for example, the right to own slaves had been overturned by an amendment to the Constitution and not the SCOTUS acting on its own initiative. We must also raise Doe vs Bolton which as well as overturning the Georgia state law which prevented women seeking abortion from coming from out of state, Doe enshrined the recognition of the women’s life broadly defined as a basis for abortion in later trimesters. While the medical exemption clause in the Mississippi law probably protects a women’s literal life as a basis for abortion, but what about the broader understanding about a women’s life. While Planned Parenthood vs Casey (1992) upheld the due process clause upon which Griswold and Roe were based, they changed the framework to that of foetal viability rather than on the trimester system in use in Roe allowing restrictions by states in the first trimester of pregnancy. It also changed the strict scrutiny standard to a standard of undue burden in which the law has to actually been constructed to prevent women from getting an abortion. But the term undue burden is far looser than the strict scrutiny standard where the state had to prove it had a compelling interest in denying a civil right. Would eliminating the only abortion centre in a state (e.g., in Mississippi and South Dakota) constitute an undue burden? Would a limit of 15 weeks to legally obtain an abortion be an undue burden? What about the 6 weeks under the Texas law?
The right to privacy is derived from the 14th Amendment on Due Process but the term” right to privacy” is not stated in the Constitution; this all relates to the notion of equal protection under the law. The idea that the federal government can argue (and has argued) that it has compelling interests in limiting freedoms of citizens and this has been done for national security purposes. Griswold maintained that reproductive and sexual choices are not something that the US government (or for that matter state governments) have a compelling interest in limiting and even under the Casey scrutiny of undue burdens placed on women accessing their rights, this doesn’t hold water.
Interpretation of the Constitution including limits to existent civil rights guaranteed by the constitution and/or the extension of civil rights are exactly what the SCOTUS does in its decisions; essentially both the constitution and legal precedent are the basis for judicial decisions and interpretations (see Stare Decisis); these SCOTUS decisions essentially hold for US states as well. Are there legal precedents that can be used to overturn Roe or will the SCOTUS just create a new precedent? On what basis will Roe vs Wade be overturned?
It cannot be a religious basis (remember there still legally exists a separation of church and state in the US guaranteed in the Constitution). Perhaps Christian fundamentalists somehow think that the Bill of Rights which prevents the establishment of a State Religion or Church and calls for the separation of Church and State does not apply to them? This provision is an important one. It prevents overzealous religious fundamentalists from inflicting their religious beliefs on the rest of us. It is not only freedom of religion that is guaranteed, but also freedom from religion. Neither Christianity nor specific branches of evangelical fundamentalist Christianity are Established Religions in the US. As such, the laws and rules of their religions can be forced on their followers and believers, but supposedly not down the throats of the rest of us.
Other religions and secular people (yes, they do exist even in the US) do not think that a collection of cells that are an embryo or a foetus have any form of special regard and recognise that a woman is a living breathing member of their communities. Can something which is a potential life even have civil rights as it cannot exist in the absence of their mother? Can their “civil rights” actually upend the civil rights of the living breathing human being that is incubating it? At what point does a woman become solely an incubator? Does her life (as broadly defined in Doe vs Bolton and in most Human Rights law) count for anything?
Perhaps they are considering using the original abortion ban law in Texas that led to the Roe vs Wade decision? But that has been forbidden from being revived by the SCOTUS Roe vs Wade decision itself — does overturning Roe vs Wade mean that the original abortion ban in Texas is now back? Or maybe not or why would the Texas SB 8 be a new piece of legislation; to be certain of the that it abortion would be banned, Texas also passed a trigger bill in case Roe is overturned, and also why they have put time limits on accessing abortion medication of 7 weeks (which they will certainly shorten as it is one week later than the legality of a surgical abortion of 6 weeks). Many other states have put in new laws and have pre-Roe anti-abortion laws as well as trigger laws in place if Roe is overturned. The Guttmacher Institute has argued that if Roe is overturned, the probability is that 26 other states will ban abortion; 21 states already have trigger laws in place. So, will they overturn the right to privacy for women in terms of their reproductive decisions or say that women are not entitled to equal protection under the law? That brings us back to Griswold and we are in a disaster …
What also needs to be understood is that overturning Roe will not suddenly create a whole series of laws or public assistance relating to access to prenatal healthcare to protect pregnant women and the social welfare safety net in the states that will be banning abortion (like in many states) has been deeply eroded, so that benefit support after birth will not be available (they don’t care about the children that women are forced to carry; just about the denial of rights to women). Travel to a state where abortion is legal is expensive, many women are unable to take sick days or holidays off work (think of those in part-time jobs) and then there is the obvious stigma if people find out what you have done; so, exercising your right to bodily autonomy in a situation where your state does not recognise your bodily autonomy will not be easy. In the mid-west abortion will be banned except in Minnesota and Illinois and in the South from Florida to Texas.
The best possible outcome (which is anything but positive) given the current composition of the SCOTUS (6 right-wingers and 3 liberals) in the Mississippi case (Dobbs vs Jackson’s Women’s Health Organization) is that the Mississippi law will be upheld and further limitations to the operation of Roe vs Wade will be enacted; only allowing legal abortions up to 15 weeks of pregnancy will be held to be constitutional. Essentially, we are in a situation where the realistic decisions of the SCOTUS are either allowing a 15 week limit for legally accessing abortion or that Roe vs Wade is overturned sending the matter back to the states.
However, the person advocating that the Mississippi Law be allowed to stand (that would be a narrow interpretation of the law), Chief Justice Roberts, requires 4 other justices to support him. Given that Justices Thomas, Alito, and Gorsuch want to overturn Roe and that Coney-Barrett literally spent the period where the case is being discussed in chambers repeatedly asking about adoption and Kavanaugh was chosen for his anti-abortion views, who will join him? Roberts can dissent from the majority opinion along with the three liberal Justices (i.e., Breyer, Sotomayor and Kagan), but, quite honestly, the right-wing on the SCOTUS have the votes to overturn Roe. I honestly doubt (and would be deeply disturbed) if the three liberal judges would join Roberts’ minority dissent as I expect they will dissent separately.
Some final thoughts ...
When I was young (many many years ago), my mother told me never to go to a Catholic hospital if I had a problem with a pregnancy as they would always choose the foetus over the life of the mother (this is not the case with Judaism as women are considered part of the community).
She was right – she just didn’t understand that Protestant Christian fundamentalists were also a danger. While they existed back then, they had not been brought into the Republican Party. For that gift we can thank Ronald Reagan as this began the shift of the Republican Party towards an anti-Abortion position — I can remember Republicans that were not anti-abortion from my youth (many many years ago). NY allowed for legal abortion in 1970, she thought that Roe and Doe would cover everywhere else in the US … it seems that she was wrong (I don’t hold it against her, so many other women also felt the same and quite honestly she was not omniscient which is a characteristic of gods, but not mothers) …
If Roe, Doe and Griswold are overturned (and along with it, the right of privacy or the equal protection under the law for women is curtailed), this will impact other decisions that derived from Griswold which was concerned with married couples accessing contraceptives. These include contraceptives for unmarried couples, contraceptives for women not in a relationship, the right to abortion, gay sex and gay marriage. The issue comes down to whether or not the state has a compelling interest to prohibit all of these things; one would think that the government doesn’t give a fig what you do sexually or your reproductive choices, but it seems that several state governments (governors, legislatures, attorney generals, etc) really do think they have a right to intervene in your very private decisions. The question you want to ask is, why would they stop with abortion? It is not as though the right-wing and Christian fundamentalists in the US right are sympathetic to LGBT+ people by any means …
Expect Roe to be overturned and act like that is going to be the case … start donating to women’s organisations that are trying to get money together to cover travel for women to states that allow abortions because quite honestly that money will be desperately needed. If your state permits abortions, get your state legislatures to ensure that women travelling to your state can get an abortion on Medicaid … support abortion centres that will be under further attack and who will have to fight legal battles to protect women and themselves (like in Texas) …
Do I think that having human rights or having them acknowledged is the end of what we are fighting for? by no means … think of them as something we need to guarantee if we want to create a real democratic socialism … we fight for them (just like we fight for civil rights) even though we know that they are constrained in the current circumstances — this is because our political, social and economic system is based upon inequality, oppression and exploitation and we need to preserve what we have fought for to move forward … we never let them take away our rights without a fight!
Fight together with others in solidarity with women and their bodily autonomy, this is not the end of the battle, but this will need a collective effort and that means that we need to work together across political movements as well (anti-racist movements, women’s movements, disabled people’s movement, LGBT+ movements and yes, the environmental movement) … the name of the game is solidarity, we must stand together and fight together … this is about all of us! We cannot allow this to become 2 BG (before Gilead) comrades ...
