Democratic debates on rights protections: What can we learn from the overruling of Roe v Wade?
By Socrates Giatrakos a penultimate year Law Student at the University of Adelaide and a Rights Resource Network SA volunteer with a passion for social justice and constitutional law.
Many South Australians have watch on in horror as the United States appears to be imploding with social unrest about a range of issues associated fundamental human rights – the right to life, the right to bear arms, the right to choose. The nature and veracity of these debates are in many ways foreign to us, but also serve as important reminders about the way Australian laws protect and promote human rights, and where the gaps might lie in our human rights frameworks.
The United States Supreme Court in Dobbs v Jackson Women’s Health Organization 597 US (2022) overruled Roe v. Wade 410 U.S. 113 (1973) (‘Roe’), removing the constitutional right to access an abortion in the United States. The issue of abortion will now be returned to the legislative branch of government. What most South Australians might find surprising is that the Parliament has always had the power to make or change laws about abortion in Australia. There is no recognised constitutional right to access an abortion in Australia, and there never has been. The State and Territory parliaments have always had the power to regulate the issue. It is a legitimate question to ask which institution of government – the courts or the parliament – should have the ‘final say’ on regulating to protect human rights. The overruling of Roe can help answer this question.
Issues with leaving rights with the courts
What the overruling of Roe indicates is that the courts are not always best placed to make sure the law responds to changing social and political attitudes. Constitutionally speaking, the job of the courts is to interpret the law.
The courts do not necessarily want to concern themselves with public policy, as this may be seen as going beyond the scope of judicial power.
In Australia this can be seen in the decision of Al-Kateb v. Godwin (2004) 219 CLR 562 where a majority of the High Court held that a human being could be held in indefinite executive detention, despite immense social pressure on the court not to make this decision. It puts courts in a precarious position where there might be an expectation to uphold, limit or evolve certain rights, but where the courts might not believe that there is a proper legal basis to do so. However, on the other hand, the community clearly expects lawmakers of all types to ensure the law evolves to meet societal needs and maintain stability.
What the overruling of Roe also highlights is the risks associated with relying upon individual judicial officers – some of whom are in the job due to political appointments by the government of the day – to ensure objectivity in the judicial process whilst also making complex technical decisions about constitutional interpretation. Interpreting law, especially ambiguous law, is difficult. Reasonable minds can differ as to the meaning of the law when it is ambiguous. However, when the most superior courts in the land interpret the law differently in different cases, it can lead to a lack of certainty and trust in the legal system that must then be remedied by another branch of government, usually the parliament through the enacting of legislation
Issues with leaving rights in a constitution
When fundamental human rights are enunciated in a constitution (like they are in the US), legislatures cannot change the law without holding a referendum. This may generally be seen as a benefit, as it maintains certainty in the fundamental framework of the government. However, when it comes to giving practical effect to human rights, a much more dynamic approach is needed that recognise that both the content of key rights, and the way they are balanced against other rights, changes over time. If human rights are set out in the Constitution, which cannot be changed without conducting a referendum, the law can be left frozen in time. However, the law belongs to the living.
As Thomas Jefferson stated: ‘I set out on this ground, which I suppose to be self-evident, that the earth belongs in usufruct to the living: that the dead have neither powers nor rights over it. On similar ground it may be proved, that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.’
For those who share this view, it is parliament rather than the courts that is naturally best placed to create the laws to protect and defend our fundamental human rights. Parliament, with its capacity to enact and change laws in a range of areas, is in the best position to modify and adapt the law to respond to social needs while also ensuring that the people still have access to fundamental rights with confidence and certainty. If the courts interpret the law in a way that parliament did not intend, the law can be amended.
A South Australian Human Rights Act would allow parliament to decide how specific human rights should be protected by law or balanced against other rights and responsibilities – in response to what the community has expressed as their key priorities and values. Such a law would set a legally enforceable standard when it comes to issues like the right to be safe from violence and the right to healthcare, whilst also giving future Parliaments the power to make changes if the balance the community is looking for changes over time. This type of human rights protection is fundamentally different to the US style, constitutionally entrenched approach which remains at the mercy of unelected judges for its interpretation and application.
A legislation-based approach to human rights protection could help unite us as a community and equip us with the tools we need to avoid the type of social neglect and conflict we see on our screens coming from the States.
What the overruling of Roe has shown is that legislation is needed to support fundamental human rights. As society progresses, the fundamental rights that society holds dear must also progress with it. A Human Rights Act in South Australia would ensure that human rights have a strong foundation in our state while also ensuring that parliament has the power to protect, but also to progress, human rights.
Find out more about the Rights Resource Network SA's plan for a Human Rights Act for South Australia here .