When I heard that President Biden had organised the ‘Summit for Democracy’ to oppose rising authoritarianism, I raised my eyebrows. Were we witnessing yet another moment of ‘do what I say, not what I do’ by a US President?
I realise that snickering when Biden says ‘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 when US democracy is under threat by Legislatures and the Supreme Court of the US (SCOTUS), and given that the US has never incorporated human rights law into its own laws, one cannot help being cynical about a US claim, once again, that it is the best democracy on the planet.
The fact that Biden can do nothing to stop ongoing attacks on civil rights means that the US’s claim to be ‘the best democracy on the planet’ and to be leading a struggle for human rights is, to say the least, absurd.
The rise of authoritarianism is real. 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 to say that we shouldn’t be worried about it. But the US government leading the counter-offensive?
That the Summit for Democracy occurred on Human Rights Day was meant to send 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.
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 what you are saying will happen can never happen. What interesting historical parallels, but it has nothing to do with what’s happening today…
I would probably be less angry if I had not warned about the danger of the overturn of Roe vs Wade and its implications for Griswold vs Connecticut in several different articles over the past three years, the most recent one here.
What is happening in Britain?
To add to my feelings of Cassandra-ism, I have also warned several people that the British government is going to have to overturn EU Human Rights Law. 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 – laws to protect workers’ rights, the right to protest and assemble, the rights of refugees and migrants.
Dominic Raab (Justice Minister) and Priti Patel (Home Secretary) in particular are pushing new repressive laws. Raab appears not to understand what misogyny means and was too busy enjoying his holiday when, as Foreign Minister, he refused calls from the Afghan Foreign Minister as the country fell to the Taliban. Patel is big on the idea of offshore detention-centres for people fleeing war, murder, rape, and torture.
The Tory government has been so disturbed by Black Lives Matter and Extinction Rebellion protests that they have introduced a bill which is a massive attack on the right to protest. The Policing, Crime, Sentencing, and Courts Bill (PCSCB) also widens stop-and-search measures (just like in the US, these affect people of colour disproportionately) and attacks the right of Gypsies, Roma, and Travellers to roam.
In response to the Insulate Britain Protests, Patel has amended the PCSCB to add criminal provision for disruption of motorways and allowing police to search people to seize equipment. She has also criticised the National Lifeboat Institute (whose role is to protect people in British waters who have run into trouble at sea) because they have rescued refugees in the English Channel.
The PCSCB has cleared the House of Commons and is now with the House of Lords. The Nationality and Borders Bill is another massive attack – on the protections afforded refugees and migrants. We can expect other human rights to be undermined once Raab’s planned bill reaches the Commons.
Already five protestors who took part in the Bristol Kill the Bill Protest on the 21 March 2021 have been sentenced to 14+ years in prison. This month, another man that took part in the protests was jailed for 14 years for trying to set two police cars on fire.
Human rights in 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 and the threat to Griswold vs Connecticut. 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 any human-rights law. But the US has not ratified either the UN Convention on Human Rights (initiated by Eleanor Roosevelt) nor the American Convention of Human Rights (despite this too being initiated by the US). While the US was a signatory to both these documents, they have never been ratified, which means these laws have not been incorporated into US Constitutional Law and hence into regular legal practice.
Moreover, while the US Senate did sign and ratify the International Covenant on Civil and Political Rights (ICCPR), it introduced several references, declarations, and understandings which essentially invalidated the covenant and made certain that it was not incorporated into US law. (The Constitution, in any case, remains safe from these unsavoury things that did not exist when the US was created.)
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 because, in theory, they 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. Even when the US refuses to recognise human-rights law, you do not, in theory, lose your human rights. It is just that you cannot enforce them in a US court.
Civil and human rights under attack
So, you may ask, what gives the US 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, ‘do what I say, not what I do’. This is a cynical attempt to use the notion of human rights as a political ploy.
In the US, alongside bizarre understandings of the Constitution (see Originalism for example), there is this idea that 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 legislators saying the vote is ‘sacred’. It is not sacred. There is nothing religious about it. It does not come from a God. It is a civil right that many have fought very hard (and even died) to obtain and exercise.
One of the weirdest uses of this argument was an National Rifle Association (NRA) advert saying that those wanting to outlaw guns were trying to ‘change the constitution’. Really? Had they never heard of Prohibition? Or, for that matter, the abolition of slavery? Clearly, societies change over time and the law changes with them.
Civil and human rights are under attack right now in the United States. The voting rights of people of colour are under attack in many Republican controlled states through gerrymandering and other rules and regulations designed to exclude people likely to vote Democrat. Penitentiary and criminal justice laws violate international human-rights laws (e.g. the death penalty and loss of voting rights by prisoners). Women’s reproductive rights are threatened by the unelected Supreme Court.
Women’s reproductive rights
My concern about the potential overturn of Griswold vs Connecticut began in 2019 during Amy Coney Barrett’s hearings for her Supreme Court appointment. When Senator Amy Klobuchar asked her whether she considered Griswold a safe, landmark decision, Coney Barrett responded by saying that she doubted a case involving Griswold would be heard by the SCOTUS.
Griswold vs Connecticut (1965) is a landmark decision of the SCOTUS which extended both the Due Process and Equal Protection Under the Law Clauses of the 14th Amendment (1868) to the US Constitution. What the Griswold decision did was to create a ‘right to privacy’. Specifically, it struck down a Connecticut law that prevented married couples from obtaining contraceptives (and information on contraceptives). It argued that the state has no compelling interest in violating marital privacy.
It has been the basis for several later decisions, including the right of non-married couples to obtain contraceptives (Eisenstadt vs Baird; 1972), the right of those over 16 to obtain contraceptives (Carey vs Population Services International; 1977), the Roe vs Wade (1973) and Doe vs Bolton (1973) rulings granting the right of women to get abortions and established a woman’s life as the basis for an abortion in the third trimester of pregnancy, and also the right of gay sex (Lawrence vs Texas; 2003) and gay marriage (Obergefell vs Hodges; 2015).
All these decisions are predicated on right of privacy of individuals and on the state not having a compelling interest in interfering in people’s medical and other intimate personal decisions.
Will an attack on abortion rights involving Roe vs Wade affect the Griswold decision? Maybe 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 this will impact on the Griswold decision.
Vigilantes
Moreover, it is worrying that the SCOTUS refused to follow normal procedure and prevent the Texas anti-abortion bill from coming into effect while it was under appeal. This was done on the basis that it involves the use of vigilantes (rather than state officials) to track and sue people helping a woman get an abortion.
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? Is there any way that this can be justified if women are citizens with ‘equal protection under the law’?
The right to privacy is derived from the 14th Amendment, but the term ‘right to privacy’ is not stated in the Constitution; this also relates to equal protection under the law.
The idea that the federal government has compelling interests in limiting the freedoms of citizens is usually based on the nebulous concept of ‘national security’. Griswold, on the other hand, maintained that reproductive and sexual choices are not something that the US government (and state governments) have a compelling interest in limiting.
Interpreting the Constitution, including limits to existing civil rights 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. Are there legal precedents that can be used to overturn Roe, or will the SCOTUS just create a new precedent? On what basis?
It cannot be a religious basis, for there is no state religion in the US. The separation of state and church, and the religious freedom of citizens, including freedom from having others impose religious beliefs, are all inherent in the Constitution.
Whatever Christian fundamentalists think, people of other religions and no religion do not believe that a collection of cells – a foetus – has human rights. How can rights be accorded to a collection of cells at the expense of the civil rights of a living woman? Is she merely an incubator?
Dominoes
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. What might the impact of that be?
It will not mean a whole series of laws and public assistance enabling access to prenatal healthcare for pregnant women and to improved social welfare. The right does not care about either the women or the unwanted children. They only concern is to deny women’s reproductive rights.
Travelling to a state where abortion remains legal will be expensive. In the Mid-West, abortion will be banned everywhere except for Illinois and Minnesota, and in the South from Florida to Texas.
Many women are unable to take sick days or holidays off work (in the US, part-time jobs do not guarantee sick days and holidays), and there is the obvious stigma if people find out what you have done. So exercising your right to bodily autonomy where your state does not recognise it will not be easy.
When I was young, 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. She was right – only she did not understand that Protestant Christian fundamentalists were also a danger.
Back then, they had not been brought into the Republican Party. For that gift we can thank Ronald Reagan. This began the shift of the Republican Party towards an anti-abortion position.
I can remember Republicans who were not anti-abortion from my youth. New York State allowed for legal abortion in 1970. All of us thought that Roe and Doe would cover everywhere else in the US. It has for 48 years, but that will be over soon.
A question we need to ask is, why would they stop with abortion? It is not as though the Christian fundamentalist right are sympathetic to LGBTQI+ people by any means.
Prepare to fight
Expect Roe to be overturned and act like that is going to be the case. Start donating to women’s organisations that are raising money to cover travel costs for women to get to states where abortions are legal: 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 which will have to fight legal battles to protect women and themselves.
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 current circumstances.
Our political, social, and economic system is based upon inequality, oppression, and exploitation, and we need to preserve what we have fought for and won if we are to move forward. We should 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 will mean working together across political movements as well (anti-racist movements, women’s movements, the disabled people’s movement, LGBTQI+ movement, and yes, the environmental movement) .
We must stand in solidarity together and fight together. What is happening in the US is about all of us! We cannot allow this to become 2 BG (before Gilead), comrades.
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