Re:Australia’s new mass surveillance mandate
by skissane on Wednesday September 08, 2021 @12:05AM
(#28452896)
> We're still seeing the ripple effects of Roe v. Wade being decided almost 50 years ago.
Abortion is far less of a political and cultural hot potato in Australia than in the US. While no doubt some of that is due to other cultural differences – for whatever reason, conservative Christianity has never been quite as strong an influence in Australia as in the US – I think a big factor is the difference in how abortion was legalised.
In Australia, there is no constitutional right to abortion. And yet abortion is legal nationwide. Its legality was achieved through a gradual process, involving state legislation, and state court decisions – those state court decisions were not based on constitutional law, rather the state courts simply decided to reinterpret the existing criminal laws against abortion to not apply to medical procedures. The federal courts stayed out of it completely, and constitutional rights never came into it, only statutory law – if they wanted to, the state parliaments could have overturned the state court decisions effectively legalising abortion, but they chose not to.
The fact that the process was much more gradual, and had greater democratic legitimacy, has helped make it less of a controversy. And since it happened through a series of state laws and state court decisions, opponents of legal abortion don't have one single highly visible event to focus all their opposition upon, like Roe v Wade is in the US. Almost every American has heard of Roe v Wade – even many non-Americans have – by contrast, few Australians know about the Menhennitt ruling (which de facto legalised abortion in the state of Victoria in 1969) or the Levine ruling (which did the same in New South Wales in 1971). American opponents of legal abortion focus most of their energy on trying to get justices appointed to the Supreme Court who will overturn Roe v Wade – the main purpose of this latest Texas law is to get a case before the Supreme Court which will give those justices an opportunity to do exactly that – its Australian opponents don't have any national focus, which in practice makes them a lot weaker.
It is totally consistent to support legal abortion, but to also think that Roe v Wade was a strategic mistake.
Abortion is far less of a political and cultural hot potato in Australia than in the US. While no doubt some of that is due to other cultural differences – for whatever reason, conservative Christianity has never been quite as strong an influence in Australia as in the US – I think a big factor is the difference in how abortion was legalised.
In Australia, there is no constitutional right to abortion. And yet abortion is legal nationwide. Its legality was achieved through a gradual process, involving state legislation, and state court decisions – those state court decisions were not based on constitutional law, rather the state courts simply decided to reinterpret the existing criminal laws against abortion to not apply to medical procedures. The federal courts stayed out of it completely, and constitutional rights never came into it, only statutory law – if they wanted to, the state parliaments could have overturned the state court decisions effectively legalising abortion, but they chose not to.
The fact that the process was much more gradual, and had greater democratic legitimacy, has helped make it less of a controversy. And since it happened through a series of state laws and state court decisions, opponents of legal abortion don't have one single highly visible event to focus all their opposition upon, like Roe v Wade is in the US. Almost every American has heard of Roe v Wade – even many non-Americans have – by contrast, few Australians know about the Menhennitt ruling (which de facto legalised abortion in the state of Victoria in 1969) or the Levine ruling (which did the same in New South Wales in 1971). American opponents of legal abortion focus most of their energy on trying to get justices appointed to the Supreme Court who will overturn Roe v Wade – the main purpose of this latest Texas law is to get a case before the Supreme Court which will give those justices an opportunity to do exactly that – its Australian opponents don't have any national focus, which in practice makes them a lot weaker.
It is totally consistent to support legal abortion, but to also think that Roe v Wade was a strategic mistake.