I've just been reading some of the shorter submissions, among those published so far, to the National Human Rights Consultation exercise. I'm not so cruel as to single out individuals - hey, I'm a big pussycat really - but I must say that it would help if more of the submissions came from people whose IQs require expression in at least two digits. Have a browse for yourself ...
Okay, so this post will come back to haunt me. It's doubtless revealing my evil streak, my elitist disdain for the common man (and woman).
Is there a lesson? If so, it seems to be this: any government organisation that gives an opportunity for the public to make submissions via the internet on matters of general interest is now likely to be bombarded with hundreds, or even thousands, of short submissions that are poorly-argued, ignorant of the issues, and unrealistic about what can be achieved - and, in some cases, expressed in written English that verges on the illiterate and is baffling to interpret. This is not hyperbole, folks, just the sober facts about the world we now live in.
But I wouldn't have it any other way. If we tried to filter out submissions that were not going to be useful (because they meet the above description), we'd also end up missing submissions from the general public that might be well-informed and valuable. This would leave the consultation process entirely to organisations and lobby groups, which is hardly satisfactory. So, all the verbal confetti appearing on government websites is the price to be paid for an initiative that's commendable overall.
Happy reading, Committee!
EDIT (9/4/09): To be fair, after thinking about the comment below by Tom Coward, and reading some more of the submissions that are now being published day by day, the above is too harsh. I really was a bit mean yesterday. It was a small number of submissions that annoyed me by saying especially silly/naive/outrageous things.
I keep coming across more of these. On the other hand, some of what's coming in to the site is interesting stuff, so I hope that by the time it does accumulate to thousands of submissions in a couple of months, the overall quality might be a lot higher than implied by my snarky observation from yesterday.
About Me
- Russell Blackford
- Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).
Wednesday, April 08, 2009
Tuesday, April 07, 2009
What's new about the New Atheism?
Whence the term "New Atheism"? Is the phenomenon it points to really something new? In fact, all this stuff about the New Atheism is little more than journalistic hype, and the arguments are not especially new. Nothing is (very) new about the so-called New Atheism. It's more a matter of resumed transmission than a whole new program.
But there's something to the idea, all the same. Here's the deal.
Through the 1980s and 1990s and even a bit earlier, most unbelievers in academia, journalism, the media dropped the ball. In the 1960s and 1970s, and earlier, there was plenty of public criticism of religion, but this changed in the last decades of the twentieth century. It became taboo to critise religion in the public sphere; there was a reluctance to be harsh about the cultures of peoples who were (supposedly) on the receiving end of Western imperialism; it was widely assumed that religion was going away, in any event, and didn't need to be fought anymore; in the academy, bright minds in philosophy turned to other topics, thinking that there was no interesting work to do in philosophy of religion; bright young atheists were certainly not steered into philosophy of religion, which looked like a dead end.
How wrong all this turned out to be. In Western countries, especially the United States, religion regrouped during the 80s and 90s. It organised politically, developing new and popular forms. Within the academy, bright young theists were encouraged into philosophy of religion; Christian intellectuals developed new arguments to counter the ones that had made religion look so intellectually shaky by the 1970s. It came to be almost a truism that traditional problems for religion, such as the Problem of Evil, were exaggerated and could be solved.
The New Atheism is the restoration of normal transmission. Some high-profile thinkers (Richard Dawkins/Daniel Dennett/Christopher Hitchens) and one not-so-high profile but very energetic thinker (Sam Harris) decided, for whatever mix of reasons, that enough was enough and it was time to break the taboo of the past couple of decades. But plenty of other people were starting to feel that the taboo must be broken. Even before most of the New Atheist books came out, I was starting to hear people say that it was necessary to engage in the public sphere with the epistemic content of religion (this is philosophy-ese for contesting religion's claims). While Dawkins and others may have been an inspiration, and may have opened up a publishing market, some people were beginning to think this way before the New Atheism came along. I was certainly one of them.
I expect to see more and more people speaking up. There are plenty who have been holding their fire until now, as Udo Schuklenk and I found when we began to put together Voices of Disbelief (or, as it has become, 50 Voices of Disbelief: Why We Are Atheists).
For example, it's become increasingly apparent to me, partly from the Voices of Disbelief exercise, that many people in the bioethics community are fed up with the never-ending resistance from religionists to rational bioethics. Some of them are asking what credentials religion has anyway. Religious leaders are, of course, able to put their arguments in public, like anyone else. But they cannot expect anyone to defer to them if they rely on controversial religious claims.
It's one thing for the state to protect us from internal and external violence, to provide a social/economic safety net, and to engage in a variety of other functions that can be given some secular justification or other. It is another thing for it to ask what the views are of various religious traditions when it is confronted by an issue such as stem cell research. But this is just what has been happening. I suggest that religious leaders should be free to put their arguments, but if the arguments depend on doctrines such as ensoulment, the views of God, the sanctity of the natural order, and so on, these popes and priests should not expect to wield any influence. Those are not the sorts of worldly concerns that should influence government policy.
But there's a further twist. If religious leaders insist that it's legitimate to put an argument such as "stem cell research should be stopped because my deity says so", they are going to be met, inevitably, with questions about whether this is even true. How do you know that that's what your deity says? Why should we believe you? How do we know that your deity even exists? The more that religious leaders rely on arguments based on essentially religious claims, the more those religious claims will themselves be challenged. The more they rely, implicitly or explicitly, on their own authority as moral leaders, the more that authority will be challenged. Where does your moral authority come from? Is it your expertise in the moral claims of a holy book or a religious tradition? But why should we think any of those moral claims are even true, leaving aside the question of whether those sorts of moral claims are those that governments should heed?
If we were pure secularists, we might simply argue that the church should be separate from the state, that discussions about public policy should rely on secular principles such as the Millian harm principle, and that specifically religious morality is not even relevant. Indeed, we should continue to argue that; if it were generally accepted, the question of whether any particular body of religious doctrine is true would not even arise. But it's clear enough that many religionists do wish to argue, or otherwise influence policy, on the basis that religious claims have some kind of special authority. It's also obvious that many governments are prepared to listen to religious views in the process of framing policies. In practice, religionists and politicians don't limit themselves to debate about such things as the harm principle, the need to provide an economic safety net, and so on. In that context, there is some urgency about asking whether the religious claims are true or not, whether religious leaders really are tapping into some kind of traditional wisdom, or not. Those questions are not going to go away, and nor should they.
In editing our book, Udo and I found that there is plenty of support Out There for asking those questions. Many people who have not yet entered the New Atheism debate are in favour of breaking the taboo, and are willing to do so themselves. There's a feeling that enough is enough and that religious doctrines must once again be critiqued and even directly opposed.
If so many religious leaders had not become so aggressive in trying to impose their views on the rest of us - i.e., beyond their congregations - the phenomenon being called the New Atheism might well not have happened, but popes and priests can't have it both ways. If they're going to bring their claims of authority, truth, and traditional wisdom to the public sphere, as they have been doing, then they must expect their credentials to be challenged. The reaction won't stop until religious leaders cease trying to influence governments - on essentially religious grounds - with respect to stem cell research, science teaching, abortion rights, gay rights, and all the other issues that they get involved in.
Many of the people who are now getting involved would probably prefer to get on with making other cultural contributions (as scientists, philosophers, journalists, or whatever); they are taking time out from what they'd normally be doing in order to answer the widespread claims of religion to exercise some special authority in the public sphere. These people, including Dawkins and the rest, have much more to offer than, "The claims of religion are false" - but the time has come, once again, when that view has to be put strongly and clearly. That's what's "new" about the New Atheism.
But there's something to the idea, all the same. Here's the deal.
Through the 1980s and 1990s and even a bit earlier, most unbelievers in academia, journalism, the media dropped the ball. In the 1960s and 1970s, and earlier, there was plenty of public criticism of religion, but this changed in the last decades of the twentieth century. It became taboo to critise religion in the public sphere; there was a reluctance to be harsh about the cultures of peoples who were (supposedly) on the receiving end of Western imperialism; it was widely assumed that religion was going away, in any event, and didn't need to be fought anymore; in the academy, bright minds in philosophy turned to other topics, thinking that there was no interesting work to do in philosophy of religion; bright young atheists were certainly not steered into philosophy of religion, which looked like a dead end.
How wrong all this turned out to be. In Western countries, especially the United States, religion regrouped during the 80s and 90s. It organised politically, developing new and popular forms. Within the academy, bright young theists were encouraged into philosophy of religion; Christian intellectuals developed new arguments to counter the ones that had made religion look so intellectually shaky by the 1970s. It came to be almost a truism that traditional problems for religion, such as the Problem of Evil, were exaggerated and could be solved.
The New Atheism is the restoration of normal transmission. Some high-profile thinkers (Richard Dawkins/Daniel Dennett/Christopher Hitchens) and one not-so-high profile but very energetic thinker (Sam Harris) decided, for whatever mix of reasons, that enough was enough and it was time to break the taboo of the past couple of decades. But plenty of other people were starting to feel that the taboo must be broken. Even before most of the New Atheist books came out, I was starting to hear people say that it was necessary to engage in the public sphere with the epistemic content of religion (this is philosophy-ese for contesting religion's claims). While Dawkins and others may have been an inspiration, and may have opened up a publishing market, some people were beginning to think this way before the New Atheism came along. I was certainly one of them.
I expect to see more and more people speaking up. There are plenty who have been holding their fire until now, as Udo Schuklenk and I found when we began to put together Voices of Disbelief (or, as it has become, 50 Voices of Disbelief: Why We Are Atheists).
For example, it's become increasingly apparent to me, partly from the Voices of Disbelief exercise, that many people in the bioethics community are fed up with the never-ending resistance from religionists to rational bioethics. Some of them are asking what credentials religion has anyway. Religious leaders are, of course, able to put their arguments in public, like anyone else. But they cannot expect anyone to defer to them if they rely on controversial religious claims.
It's one thing for the state to protect us from internal and external violence, to provide a social/economic safety net, and to engage in a variety of other functions that can be given some secular justification or other. It is another thing for it to ask what the views are of various religious traditions when it is confronted by an issue such as stem cell research. But this is just what has been happening. I suggest that religious leaders should be free to put their arguments, but if the arguments depend on doctrines such as ensoulment, the views of God, the sanctity of the natural order, and so on, these popes and priests should not expect to wield any influence. Those are not the sorts of worldly concerns that should influence government policy.
But there's a further twist. If religious leaders insist that it's legitimate to put an argument such as "stem cell research should be stopped because my deity says so", they are going to be met, inevitably, with questions about whether this is even true. How do you know that that's what your deity says? Why should we believe you? How do we know that your deity even exists? The more that religious leaders rely on arguments based on essentially religious claims, the more those religious claims will themselves be challenged. The more they rely, implicitly or explicitly, on their own authority as moral leaders, the more that authority will be challenged. Where does your moral authority come from? Is it your expertise in the moral claims of a holy book or a religious tradition? But why should we think any of those moral claims are even true, leaving aside the question of whether those sorts of moral claims are those that governments should heed?
If we were pure secularists, we might simply argue that the church should be separate from the state, that discussions about public policy should rely on secular principles such as the Millian harm principle, and that specifically religious morality is not even relevant. Indeed, we should continue to argue that; if it were generally accepted, the question of whether any particular body of religious doctrine is true would not even arise. But it's clear enough that many religionists do wish to argue, or otherwise influence policy, on the basis that religious claims have some kind of special authority. It's also obvious that many governments are prepared to listen to religious views in the process of framing policies. In practice, religionists and politicians don't limit themselves to debate about such things as the harm principle, the need to provide an economic safety net, and so on. In that context, there is some urgency about asking whether the religious claims are true or not, whether religious leaders really are tapping into some kind of traditional wisdom, or not. Those questions are not going to go away, and nor should they.
In editing our book, Udo and I found that there is plenty of support Out There for asking those questions. Many people who have not yet entered the New Atheism debate are in favour of breaking the taboo, and are willing to do so themselves. There's a feeling that enough is enough and that religious doctrines must once again be critiqued and even directly opposed.
If so many religious leaders had not become so aggressive in trying to impose their views on the rest of us - i.e., beyond their congregations - the phenomenon being called the New Atheism might well not have happened, but popes and priests can't have it both ways. If they're going to bring their claims of authority, truth, and traditional wisdom to the public sphere, as they have been doing, then they must expect their credentials to be challenged. The reaction won't stop until religious leaders cease trying to influence governments - on essentially religious grounds - with respect to stem cell research, science teaching, abortion rights, gay rights, and all the other issues that they get involved in.
Many of the people who are now getting involved would probably prefer to get on with making other cultural contributions (as scientists, philosophers, journalists, or whatever); they are taking time out from what they'd normally be doing in order to answer the widespread claims of religion to exercise some special authority in the public sphere. These people, including Dawkins and the rest, have much more to offer than, "The claims of religion are false" - but the time has come, once again, when that view has to be put strongly and clearly. That's what's "new" about the New Atheism.
Monday, April 06, 2009
A thought experiment - choosing the best life
I'd like answers to this. Don't just read it and pass on. Okay?
Person W lives for 50 years and is almost blissfully happy. He or she has an average happiness of 9/10 across their entire life.
Person X lives for 80 years. For the first 50 years, he or she has an average happiness of 9/10. Then they live for another 30 years at an average of 8.5/10 (not so close to bliss, but still very happy). Thus, person X gets everything person W gets and more ... but is less happy on average over their total life.
Person Y lives for 35 years at 8.4/10 (yay, that's very happy!) and then 50 years at 9/10.
Person Z lives for85 86 years. He or she has 50 randomly-distributed years at 9/10 level happiness. They also have 36 randomly-distributed years of 8.4 happiness.
All right, got it? Whose life would you prefer to have? W? X? Y? Z? It is by no means obvious to me that the best life to choose is that of person W, even though this person's life is the one of greatest average happiness across an entire lifetime. Indeed, it seems obvious to me that it's better to be person X, but maybe you'll all disagree with me. But what about person Y, and if you like that, why not person Z? And of course, we could come up with a more systematic set of comparisons if we were being scientific.
Are these even the relevant comparisons we should be making? Is it relevant to your choice if I tell you that one of the above lives (but still with the average figures I've provided) includes times of horrible pain or mental suffering? If it's relevant, what effect does it have on your choice?
Person W lives for 50 years and is almost blissfully happy. He or she has an average happiness of 9/10 across their entire life.
Person X lives for 80 years. For the first 50 years, he or she has an average happiness of 9/10. Then they live for another 30 years at an average of 8.5/10 (not so close to bliss, but still very happy). Thus, person X gets everything person W gets and more ... but is less happy on average over their total life.
Person Y lives for 35 years at 8.4/10 (yay, that's very happy!) and then 50 years at 9/10.
Person Z lives for
All right, got it? Whose life would you prefer to have? W? X? Y? Z? It is by no means obvious to me that the best life to choose is that of person W, even though this person's life is the one of greatest average happiness across an entire lifetime. Indeed, it seems obvious to me that it's better to be person X, but maybe you'll all disagree with me. But what about person Y, and if you like that, why not person Z? And of course, we could come up with a more systematic set of comparisons if we were being scientific.
Are these even the relevant comparisons we should be making? Is it relevant to your choice if I tell you that one of the above lives (but still with the average figures I've provided) includes times of horrible pain or mental suffering? If it's relevant, what effect does it have on your choice?
Iowa court upholds gay marriage
I'm looking forward to analysing the court's judgment , though I might take a few days getting to it.
My views on this issue are not as clear-cut as most of my friends'.
In the current circumstances, I do support the right of gay people to get married. But there are some complications from my viewpoint: in the long term, I think that the state should be getting out of the marriage business altogether; I don't even think that the long-term survival of the institution of marriage is something that deserves our support; I have some doubts about the kinds of constitutional arguments that have been prevailing in state jurisdictions, and I think there's a chance that they'll fail if a case like this is ever tested in the US Supreme Court (can anyone tell me whether state Supreme Court cases on issues involving state constitutions in the US are appellable to the US Supreme Court; equivalent cases in Australia could go all the way to the High Court, but perhaps I'm wrong in automatically assuming that the same applies in America?); I understand why one or two gay rights advocates are not in favour of making gay marriage a big issue in the US, on strategic expediency grounds; and the issue has a somewhat different meaning in the Australian context, where legal rights for gay couples are pretty much the same as those for straight (unmarried) couples, which are, in turn, increasingly the same as those for married couples (i.e., marriage is losing its legal meaning here, which doesn't seem to be happening in the US).
All those are reasons why I am a bit detached. All the same, I salute this outcome as another important victory for gay rights in the US and particularly for committed gay couples in Iowa. The court's reasoning will have a persuasive impact in other US jurisdictions, and it looks as if the judgment has some especially pleasing observations about church/state separation and about gays as a protected group in American equal protection jurisprudence. Like I say, I look forward to finding some time to analyse it.
My views on this issue are not as clear-cut as most of my friends'.
In the current circumstances, I do support the right of gay people to get married. But there are some complications from my viewpoint: in the long term, I think that the state should be getting out of the marriage business altogether; I don't even think that the long-term survival of the institution of marriage is something that deserves our support; I have some doubts about the kinds of constitutional arguments that have been prevailing in state jurisdictions, and I think there's a chance that they'll fail if a case like this is ever tested in the US Supreme Court (can anyone tell me whether state Supreme Court cases on issues involving state constitutions in the US are appellable to the US Supreme Court; equivalent cases in Australia could go all the way to the High Court, but perhaps I'm wrong in automatically assuming that the same applies in America?); I understand why one or two gay rights advocates are not in favour of making gay marriage a big issue in the US, on strategic expediency grounds; and the issue has a somewhat different meaning in the Australian context, where legal rights for gay couples are pretty much the same as those for straight (unmarried) couples, which are, in turn, increasingly the same as those for married couples (i.e., marriage is losing its legal meaning here, which doesn't seem to be happening in the US).
All those are reasons why I am a bit detached. All the same, I salute this outcome as another important victory for gay rights in the US and particularly for committed gay couples in Iowa. The court's reasoning will have a persuasive impact in other US jurisdictions, and it looks as if the judgment has some especially pleasing observations about church/state separation and about gays as a protected group in American equal protection jurisprudence. Like I say, I look forward to finding some time to analyse it.
Sunday, April 05, 2009
Conroy winning friends and influencing people
I'm not sure what to make of this, but it will be interesting to see whether anything more comes of it.
It's nice to know that I'm not the only one who thinks it's reached the point where Conroy has got to go. That's evidently a growing view within the communications industry. Of course, it's early days yet. With the government riding high in the polls, and the opposition not laying any leather on it at all, I don't imagine that we'll be seeing portfolio reallocations soon.
It's nice to know that I'm not the only one who thinks it's reached the point where Conroy has got to go. That's evidently a growing view within the communications industry. Of course, it's early days yet. With the government riding high in the polls, and the opposition not laying any leather on it at all, I don't imagine that we'll be seeing portfolio reallocations soon.
Udo Schuklenk's take on Madonna
I think Udo has this about right. Were Madonna's motives for wanting to adopt a child from an orphanage in Malawi entirely selfless? Probably not. Was this the best use she could have made of her wealth? Clearly, no. But was she going to do good, on balance, if the adoption had gone ahead? Most likely, yes.
We may be critical of celebrities for the way they use their wealth, but we tend to think they are at least within their rights, even if they squander it. In this case, Madonna was not going to use it in the best possible way, but she was certainly not going to squander it. It would have done some significant good and no obvious harm.
I guess there's no point in feeling sorry for someone as commercially successful and wealthy as Madonna, but at the same time I get tired of all the unnecessary attacks on her character. She's doubtless far from perfect, in exactly the same way as the rest of us are far from perfect. We'd probably all do things that seem odd to most people if blazing fame and access to vast wealth liberated us from our inhibitions. Many people would use Madonna-like wealth far less responsibly than Madonna actually does. Really, it's hard to understand what a lot of the fuss and sniping in the media is all about. Some of it just seems spiteful: it reflects worse on the journalists concerned than it does on Madonna herself.
We may be critical of celebrities for the way they use their wealth, but we tend to think they are at least within their rights, even if they squander it. In this case, Madonna was not going to use it in the best possible way, but she was certainly not going to squander it. It would have done some significant good and no obvious harm.
I guess there's no point in feeling sorry for someone as commercially successful and wealthy as Madonna, but at the same time I get tired of all the unnecessary attacks on her character. She's doubtless far from perfect, in exactly the same way as the rest of us are far from perfect. We'd probably all do things that seem odd to most people if blazing fame and access to vast wealth liberated us from our inhibitions. Many people would use Madonna-like wealth far less responsibly than Madonna actually does. Really, it's hard to understand what a lot of the fuss and sniping in the media is all about. Some of it just seems spiteful: it reflects worse on the journalists concerned than it does on Madonna herself.
Saturday, April 04, 2009
Religulous
I watched most of Religulous this afternoon while avoiding what I should really have been doing (i.e. marking assignments). It was light, but amusing. Can anyone tell me what happens in the end so I don't have to buy or rent the DVD? Do the good guys win? Does God reveal himself from a whirlwind, or anything like that? Is the DVD worth it for the extras?
What I find amazing, although I shouldn't, since I have a good enough intellectual knowledge of the situation, is the way all those big, tough American truckies (or "truckers", as they'd say) were so fiercely and literal-mindedly religious. I know they were a particular group, but it still seems extraordinary from my perspective that hardcore Christianity is commonplace in parts of American society where it would be very rare here, and would be looked on as oddball (to say the least). America really is a different culture once you step out of the big cities ...
What I find amazing, although I shouldn't, since I have a good enough intellectual knowledge of the situation, is the way all those big, tough American truckies (or "truckers", as they'd say) were so fiercely and literal-mindedly religious. I know they were a particular group, but it still seems extraordinary from my perspective that hardcore Christianity is commonplace in parts of American society where it would be very rare here, and would be looked on as oddball (to say the least). America really is a different culture once you step out of the big cities ...
Friday, April 03, 2009
Morning-after pill case: US court slaps FDA
In a judgment handed down on 23 March 2009, Justice Korman of the United States District Court has severely criticised the Food and Drug Administration ("FDA") for its politically-motivated stonewalling on approval of a "morning-after pill", Plan B, for non-prescription use. The judgment reveals a sorry tale of political interference and bureaucratic contortions, in an attempt to restrict the availability of a drug that is disliked by America's Religious Right.
Cases like this carry lessons for us all, and not only in America.
Plan B
Plan B is a highly-effective emergency contraceptive that works by stopping the release of an egg from an ovary. It may also prevent fertilisation or block the implantation of an embryo if fertilisation has already taken place. Used properly, it can reduce the likelihood of an unwanted pregnancy by up to 89 per cent, and it has no known serious or long-term side effects. As long ago as 1999, it was approved in the United States for prescription-only use, and it remains the only such drug legally available in the US.
Plan B is time-sensitive, and most effective if taken within 24 hours of sexual intercourse; it is not effective beyond 72 hours. Thus, such barriers as the need to obtain a prescription could easily increase the chance of an unwanted pregnancy.
The litigation
In Tummino et al. v. Torti (decided 23 March 2009), the plaintiffs were various organisations and individuals who advocated better access to emergency contraceptives, as well as parents and their children seeking access to them. The plaintiffs brought an action in the US District Court requesting judicial review of a decision by the Food and Drug Administration ("FDA") – which had denied their Citizen Petition lodged in early 2001. The Citizen Petition sought that the FDA make Plan B available without a prescription to women of all ages. Such an application to switch from prescription use of a drug to non-prescription use is known as a "switch application" or an "over-the-counter [or OTC] switch".
The FDA considered the Citizen Petition concurrently with a series of proposals by the manufacturers/marketers of Plan B, who sought that it be approved for non-prescription sale to all women, then (when that failed) to all women over 16, then (when that also failed) to all women over 17.
In the event, the FDA made a decision in 2006, after court proceedings had already commenced, to approve non-prescription sale to women over 18. The agency rejected all other petitions or proposals. Although its own research and internal consideration suggested that Plan B was safe for use by 17-year-old women without the need for a prescription, the FDA decided to restrict non-prescription availability to 18-year-olds and older, justifying this with concerns about enforcement issues (i.e., issues relating to age identification).
The plaintiffs took action under the Administrative Procedure Act, which enables the judicial review of administrative decisions that are alleged to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." In proceedings before Justice Korman, they argued that the relevant decisions by the FDA were arbitrary and capricious, and should be overturned.
Findings
Justice Korman found that the FDA had repeatedly and unreasonably delayed issuing a decision on Plan B. The agency took five years to decide to deny the Citizen Petition after its tentative response in 2001. On two occasions, it took action to progress the issue only to facilitate confirmation of Acting FDA Commissioners whose Senate confirmation hearings had been held up as a result of the repeated delays. The first occasion involved the confirmation of Acting FDA Commissioner Lester M. Crawford, who froze the review process for seven months in 2005. In response to the delay, Senators Hillary Clinton and Patty Murray had decided to block Crawford's appointment until approval of Plan B for over-the-counter sale.
At that point, the Secretary of Health and Human Services promised that the FDA would act on Plan B by September 2005. After Crawford was confirmed by the Senate in July 2005, however, he reneged on the promise and delayed action for another eleven months.
When the FDA finally decided to approve non-prescription use of Plan B for women 18 and older, it did so only to facilitate the Senate confirmation of Commissioner Crawford’s successor, Acting FDA Commissioner Andrew C. von Eschenbach.
Throughout the process, the FDA departed in numerous ways from its normal practices. E.g., upper management, including the Commissioner, wrested control over the decision-making from staff who would normally issue the final decision on an OTC switch application; efforts were made to stack the Advisory Committee for Reproductive Health Drugs and the Advisory Committee for Nonprescription Drugs with pro-life appointees; the FDA’s denial of non-prescription access without age restriction went against the recommendation of the advisory committees; and the Commissioner – in response to political pressure – decided to deny non-prescription access to women 16 and younger before scientific review staff had completed their work. The enforcement concerns eventually cited by the FDA to restrict non-prescription access to the drug to 18-year-olds and over were held by the judge to be "fanciful and wholly unsubstantiated".
Outcome
Justice Korman determined that the FDA had acted in bad faith and in response to political pressure.
He ordered the FDA to reconsider its decisions regarding the Plan B OTC switch. He also ordered the agency to permit Barr Pharmaceuticals to market Plan B to 17-year-olds without a prescription. For two reasons, he was content to allow the FDA to make its own reconsidered decision on non-prescription access for women under 17. First, a change in leadership at the FDA suggested that it could now be trusted to conduct a fair assessment of the scientific evidence. Second, it was not appropriate for a judge, rather than the expert agency, to decide whether Plan B could be used safely by children as young as 11 or 12.
Comment
This tale of woe highlights the danger of political pressures on administrative agencies entrusted with decisions on controversial issues. Though the FDA's remit went no further than investigating whether Plan B could be used safely without prescription, its contortions and delays were in response to pressure from political leaders motivated by their moralistic disapproval of emergency contraception and (we can easily infer) a similar disapproval of adolescent sexuality.
Putting it more bluntly, the Bush administration acted at the behest of the Religious Right to pressure a key agency to act with manifest impropriety. Motivated by moralistic concerns, high-level political actors attempted with considerable success to frustrate women's access to effective emergency contraception. Very young women in the most need were those who were made to suffer.
The election of a new administration, headed by Barack Obama, may reduce the danger of more such events in the US, but it's always in the background. Furthermore, the lessons don't apply solely to the US. All countries, to varying extents, are well-stocked with religious moralists who wield political influence and see their missions as above the law. Such people are most unlikely to feel constrained by ideas of separating church and state.
We have plenty of reason to be vigilant, not only in the US, but anywhere where religious moralists seek to impose their preferred moral views by influencing state power. The Bush administration was merely an egregious example of a much wider, and ever-present, danger to good government.
Cases like this carry lessons for us all, and not only in America.
Plan B
Plan B is a highly-effective emergency contraceptive that works by stopping the release of an egg from an ovary. It may also prevent fertilisation or block the implantation of an embryo if fertilisation has already taken place. Used properly, it can reduce the likelihood of an unwanted pregnancy by up to 89 per cent, and it has no known serious or long-term side effects. As long ago as 1999, it was approved in the United States for prescription-only use, and it remains the only such drug legally available in the US.
Plan B is time-sensitive, and most effective if taken within 24 hours of sexual intercourse; it is not effective beyond 72 hours. Thus, such barriers as the need to obtain a prescription could easily increase the chance of an unwanted pregnancy.
The litigation
In Tummino et al. v. Torti (decided 23 March 2009), the plaintiffs were various organisations and individuals who advocated better access to emergency contraceptives, as well as parents and their children seeking access to them. The plaintiffs brought an action in the US District Court requesting judicial review of a decision by the Food and Drug Administration ("FDA") – which had denied their Citizen Petition lodged in early 2001. The Citizen Petition sought that the FDA make Plan B available without a prescription to women of all ages. Such an application to switch from prescription use of a drug to non-prescription use is known as a "switch application" or an "over-the-counter [or OTC] switch".
The FDA considered the Citizen Petition concurrently with a series of proposals by the manufacturers/marketers of Plan B, who sought that it be approved for non-prescription sale to all women, then (when that failed) to all women over 16, then (when that also failed) to all women over 17.
In the event, the FDA made a decision in 2006, after court proceedings had already commenced, to approve non-prescription sale to women over 18. The agency rejected all other petitions or proposals. Although its own research and internal consideration suggested that Plan B was safe for use by 17-year-old women without the need for a prescription, the FDA decided to restrict non-prescription availability to 18-year-olds and older, justifying this with concerns about enforcement issues (i.e., issues relating to age identification).
The plaintiffs took action under the Administrative Procedure Act, which enables the judicial review of administrative decisions that are alleged to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." In proceedings before Justice Korman, they argued that the relevant decisions by the FDA were arbitrary and capricious, and should be overturned.
Findings
Justice Korman found that the FDA had repeatedly and unreasonably delayed issuing a decision on Plan B. The agency took five years to decide to deny the Citizen Petition after its tentative response in 2001. On two occasions, it took action to progress the issue only to facilitate confirmation of Acting FDA Commissioners whose Senate confirmation hearings had been held up as a result of the repeated delays. The first occasion involved the confirmation of Acting FDA Commissioner Lester M. Crawford, who froze the review process for seven months in 2005. In response to the delay, Senators Hillary Clinton and Patty Murray had decided to block Crawford's appointment until approval of Plan B for over-the-counter sale.
At that point, the Secretary of Health and Human Services promised that the FDA would act on Plan B by September 2005. After Crawford was confirmed by the Senate in July 2005, however, he reneged on the promise and delayed action for another eleven months.
When the FDA finally decided to approve non-prescription use of Plan B for women 18 and older, it did so only to facilitate the Senate confirmation of Commissioner Crawford’s successor, Acting FDA Commissioner Andrew C. von Eschenbach.
Throughout the process, the FDA departed in numerous ways from its normal practices. E.g., upper management, including the Commissioner, wrested control over the decision-making from staff who would normally issue the final decision on an OTC switch application; efforts were made to stack the Advisory Committee for Reproductive Health Drugs and the Advisory Committee for Nonprescription Drugs with pro-life appointees; the FDA’s denial of non-prescription access without age restriction went against the recommendation of the advisory committees; and the Commissioner – in response to political pressure – decided to deny non-prescription access to women 16 and younger before scientific review staff had completed their work. The enforcement concerns eventually cited by the FDA to restrict non-prescription access to the drug to 18-year-olds and over were held by the judge to be "fanciful and wholly unsubstantiated".
Outcome
Justice Korman determined that the FDA had acted in bad faith and in response to political pressure.
He ordered the FDA to reconsider its decisions regarding the Plan B OTC switch. He also ordered the agency to permit Barr Pharmaceuticals to market Plan B to 17-year-olds without a prescription. For two reasons, he was content to allow the FDA to make its own reconsidered decision on non-prescription access for women under 17. First, a change in leadership at the FDA suggested that it could now be trusted to conduct a fair assessment of the scientific evidence. Second, it was not appropriate for a judge, rather than the expert agency, to decide whether Plan B could be used safely by children as young as 11 or 12.
Comment
This tale of woe highlights the danger of political pressures on administrative agencies entrusted with decisions on controversial issues. Though the FDA's remit went no further than investigating whether Plan B could be used safely without prescription, its contortions and delays were in response to pressure from political leaders motivated by their moralistic disapproval of emergency contraception and (we can easily infer) a similar disapproval of adolescent sexuality.
Putting it more bluntly, the Bush administration acted at the behest of the Religious Right to pressure a key agency to act with manifest impropriety. Motivated by moralistic concerns, high-level political actors attempted with considerable success to frustrate women's access to effective emergency contraception. Very young women in the most need were those who were made to suffer.
The election of a new administration, headed by Barack Obama, may reduce the danger of more such events in the US, but it's always in the background. Furthermore, the lessons don't apply solely to the US. All countries, to varying extents, are well-stocked with religious moralists who wield political influence and see their missions as above the law. Such people are most unlikely to feel constrained by ideas of separating church and state.
We have plenty of reason to be vigilant, not only in the US, but anywhere where religious moralists seek to impose their preferred moral views by influencing state power. The Bush administration was merely an egregious example of a much wider, and ever-present, danger to good government.
Reminder to self - must fill in for a couple of extra tutes next week
As you were, team. This is just a reminder to myself in a place where I'll keep seeing it. I'm terrified of forgetting. I'll write something of more substance later.
Thursday, April 02, 2009
Irving on Robertson and an Australian Charter of Rights: my plea for fundamental freedoms
The new edition of Australian Literary Review (ALR) contains an interesting essay by Professor Helen Irving, responding to Geoffrey Robertson's proposal for a charter of rights at the federal level, something that Irving opposes except with respect to procedural rights for accused criminals and others who face punishment or some kind of preventive restriction on their liberty.
Although I have long supported a Bill of Rights for Australia, I am disappointed at the various drafts I'm seeing, which attempt to constitutionalise inappropriate matters that are better dealt with through ordinary political processes. Accordingly, I largely agree with Professor Irving's response to Robertson, for reasons I've explained in some detail here and here. I do not support the constitutionalisation of contentious issues on which reasonable people in a modern liberal democracy can disagree. In particular, I don't support the constitutionalisation of economic rights or other positive rights. In any event, such proposals are suicide; the electorate will never accept a Bill of Rights, or even a non-binding Charter, that goes wider than some basic protections against government power.
I also agree with Irving that it is somewhat frightening when Robertson suggests that a Charter of Rights be used as a means to "educate" us into a single moral vision. This is a fundamentally illiberal, even Orwellian proposal (thought crime, anybody?); and Irving's objection to it has my full support. In a liberal democracy, a wide range of ethical pluralism is not only permitted but welcomed, and we should be very slow to condemn a particular viewpoint as unAustralian or beyond the pale of tolerance. The only vision that should unite us is a commitment to liberalism itself - and even departures from this should be tolerated as far as possible.
I should add, however, that I also don't see a great need for further constitutionalisation of procedural rights - something that Irving appears to favour.
It is likely that many procedural rights that we'd want to constitutionalise are already protected by the separation of judicial power from the legislative and executive powers. I argued this at length in my article "Judicial Power, Political Liberty and the Post-Industrial State", Australian Law Journal, 71 (1997): 267-93. A review of the case law from the last decade or so has not made me change my mind: see my detailed discussion of the more recent law in my submission to the National Human Rights Consultation Committee (Chapter 9).
At the federal level, a significant range of government functions would be struck down as unconstitutional if they were assigned to the legislature itself or (more plausibly) to the executive in the form of a non-judicial tribunal. Such functions include punishment of crime, preventive detention, and preventive restrictions on liberty, such as control orders. As I state in my submission:
"While the issue has not been fully tested in the High Court, and dicta can be found that point in contrary directions, I submit that the better reading of Australia's constitutional arrangements is that, at the federal level, such powers as these can be exercised only by Chapter III courts. Outside of the immigration context and other recognised exceptions, the power to limit or burden the liberty of individuals should now be recognised as essentially judicial."
If these functions were assigned to a Chapter III court, they would be struck down if they required a court to act without the sorts of basic safeguards (including natural justice) that accompany a traditional curial process.
If a state government assigned a similar function to a state court, the relevant statute would be struck down if it required the court to act in a way that would tend to make it an unfit forum to deal with federal matters referred to it under the Australian Constitution.
If a state government assigned such a function to a non-judicial tribunal, that would (alas) be constitutional, as there is generally no separation of powers at state level. However, it would be so politically unpalatable that it might never be possible in practice. For the foreseeable future, non-judicial tribunals at state level will continue to exercise jurisdiction in some matters that could be assigned only to Chapter III courts at the federal level: e.g. they will have greater power than federal tribunals to dispose of equal opportunity cases. However, they are most unlikely to be assigned the conduct of criminal trials or the power to make orders about preventive detention or restrictions.
I'm not suggesting that Professor Irving's proposals on procedural rights have no merit. For example, it appears that a legislature would have the power to abrogate habeas corpus within its jurisdiction. Perhaps her proposals are worth our support, but I don't see them as the highest priority, given the constitutional and political problems that face governments contemplating the enactment of statutes that require outrageous procedural abuses.
To me, the very highest priority is protection of our fundamental political freedoms, such as freedom of speech. This does not seem to be getting adequate priority in the current debate - worryingly, at a time when free speech is under attack from many sides.
The recent resolutions by the UN General Assembly and the UN's Human Rights Council, condemning "defamation of religion", constitute just one such threat to freedom of speech. To its credit, Australia has consistently voted against such resolutions, but there is no guarantee that future governments will take a similar attitude. Combine this with the recent attempts at the level of the NSW government to "get" Bill Henson on fatuous charges of child pornography, plus some of the more draconian features of the existing censorship regime in this country, plus existing religious vilification laws, PLUS, of course, the Conroy proposals to censor the Internet ... and I submit that the power of governments to abridge freedom of speech must be reined in, one way or another. Ideally, the constitutional limits of government power to abridge freedom of speech should be brought more closely into line with what applies in the United States, where many attempts to abridge free speech have actually been struck down - not least, the outrageous Communications Decency Act (see Reno v. American Civil Liberties Union 521 US 844 (1997)).
This is a proper role for constitutional law and for judicial review: establishing and enforcing the limits within which government power is to be exercised. As long as they stay within those limits, the actions of the legislature and executive are proper matters for everyday political debate, but there should be no presumption that the powers of legislatures should be unlimited in the way traditionally ascribed to the English parliament. Good government is limited government.
It would be unrealistic to think that we can obtain new constitutionally-entrenched limits on government power from the current exercise by the National Human Rights Consultation Committee. The terms of reference of the Review don't allow this as an outcome, and in any event it is inconceivable that a referendum would obtain political support or have any prospect of electoral success.
Nonetheless, issues to do with freedom of speech, fundamental political freedoms in general, and the appropriate limits of government power over citizens should not be forgotten in this debate. I urge that we all make at least some noise about these issues while there is an available forum. At the moment, there's a lot of anger in the Australian community about encroachments on freedom of speech in particular; let's express this wherever we can, and not allow the issue to be marginalised in the current debate over human rights and consitutional arrangements.
With all the above in mind, I've offered an article proposal to ALR, so we'll see what response I get. Whatever comes of that, if anything, I urge all my Australian readers to raise these issues loudly with the Consultation Committee itself.
Remember that Father Frank Brennan, the Jesuit priest who heads up the Committee, has made clear on the public record that he is not a strong supporter of freedom of speech. He is lukewarm about the issue at best; in his 1998 book on a bill of rights for Australia, he is sometimes quite dismissive of this fundamental liberal freedom. Free speech is an issue that is likely to be buried, this time round, unless a lot of noise is made.
If that happens, don't expect your protests to be taken seriously by the government next time it attempts to reduce your fundamental freedoms.
Although I have long supported a Bill of Rights for Australia, I am disappointed at the various drafts I'm seeing, which attempt to constitutionalise inappropriate matters that are better dealt with through ordinary political processes. Accordingly, I largely agree with Professor Irving's response to Robertson, for reasons I've explained in some detail here and here. I do not support the constitutionalisation of contentious issues on which reasonable people in a modern liberal democracy can disagree. In particular, I don't support the constitutionalisation of economic rights or other positive rights. In any event, such proposals are suicide; the electorate will never accept a Bill of Rights, or even a non-binding Charter, that goes wider than some basic protections against government power.
I also agree with Irving that it is somewhat frightening when Robertson suggests that a Charter of Rights be used as a means to "educate" us into a single moral vision. This is a fundamentally illiberal, even Orwellian proposal (thought crime, anybody?); and Irving's objection to it has my full support. In a liberal democracy, a wide range of ethical pluralism is not only permitted but welcomed, and we should be very slow to condemn a particular viewpoint as unAustralian or beyond the pale of tolerance. The only vision that should unite us is a commitment to liberalism itself - and even departures from this should be tolerated as far as possible.
I should add, however, that I also don't see a great need for further constitutionalisation of procedural rights - something that Irving appears to favour.
It is likely that many procedural rights that we'd want to constitutionalise are already protected by the separation of judicial power from the legislative and executive powers. I argued this at length in my article "Judicial Power, Political Liberty and the Post-Industrial State", Australian Law Journal, 71 (1997): 267-93. A review of the case law from the last decade or so has not made me change my mind: see my detailed discussion of the more recent law in my submission to the National Human Rights Consultation Committee (Chapter 9).
At the federal level, a significant range of government functions would be struck down as unconstitutional if they were assigned to the legislature itself or (more plausibly) to the executive in the form of a non-judicial tribunal. Such functions include punishment of crime, preventive detention, and preventive restrictions on liberty, such as control orders. As I state in my submission:
"While the issue has not been fully tested in the High Court, and dicta can be found that point in contrary directions, I submit that the better reading of Australia's constitutional arrangements is that, at the federal level, such powers as these can be exercised only by Chapter III courts. Outside of the immigration context and other recognised exceptions, the power to limit or burden the liberty of individuals should now be recognised as essentially judicial."
If these functions were assigned to a Chapter III court, they would be struck down if they required a court to act without the sorts of basic safeguards (including natural justice) that accompany a traditional curial process.
If a state government assigned a similar function to a state court, the relevant statute would be struck down if it required the court to act in a way that would tend to make it an unfit forum to deal with federal matters referred to it under the Australian Constitution.
If a state government assigned such a function to a non-judicial tribunal, that would (alas) be constitutional, as there is generally no separation of powers at state level. However, it would be so politically unpalatable that it might never be possible in practice. For the foreseeable future, non-judicial tribunals at state level will continue to exercise jurisdiction in some matters that could be assigned only to Chapter III courts at the federal level: e.g. they will have greater power than federal tribunals to dispose of equal opportunity cases. However, they are most unlikely to be assigned the conduct of criminal trials or the power to make orders about preventive detention or restrictions.
I'm not suggesting that Professor Irving's proposals on procedural rights have no merit. For example, it appears that a legislature would have the power to abrogate habeas corpus within its jurisdiction. Perhaps her proposals are worth our support, but I don't see them as the highest priority, given the constitutional and political problems that face governments contemplating the enactment of statutes that require outrageous procedural abuses.
To me, the very highest priority is protection of our fundamental political freedoms, such as freedom of speech. This does not seem to be getting adequate priority in the current debate - worryingly, at a time when free speech is under attack from many sides.
The recent resolutions by the UN General Assembly and the UN's Human Rights Council, condemning "defamation of religion", constitute just one such threat to freedom of speech. To its credit, Australia has consistently voted against such resolutions, but there is no guarantee that future governments will take a similar attitude. Combine this with the recent attempts at the level of the NSW government to "get" Bill Henson on fatuous charges of child pornography, plus some of the more draconian features of the existing censorship regime in this country, plus existing religious vilification laws, PLUS, of course, the Conroy proposals to censor the Internet ... and I submit that the power of governments to abridge freedom of speech must be reined in, one way or another. Ideally, the constitutional limits of government power to abridge freedom of speech should be brought more closely into line with what applies in the United States, where many attempts to abridge free speech have actually been struck down - not least, the outrageous Communications Decency Act (see Reno v. American Civil Liberties Union 521 US 844 (1997)).
This is a proper role for constitutional law and for judicial review: establishing and enforcing the limits within which government power is to be exercised. As long as they stay within those limits, the actions of the legislature and executive are proper matters for everyday political debate, but there should be no presumption that the powers of legislatures should be unlimited in the way traditionally ascribed to the English parliament. Good government is limited government.
It would be unrealistic to think that we can obtain new constitutionally-entrenched limits on government power from the current exercise by the National Human Rights Consultation Committee. The terms of reference of the Review don't allow this as an outcome, and in any event it is inconceivable that a referendum would obtain political support or have any prospect of electoral success.
Nonetheless, issues to do with freedom of speech, fundamental political freedoms in general, and the appropriate limits of government power over citizens should not be forgotten in this debate. I urge that we all make at least some noise about these issues while there is an available forum. At the moment, there's a lot of anger in the Australian community about encroachments on freedom of speech in particular; let's express this wherever we can, and not allow the issue to be marginalised in the current debate over human rights and consitutional arrangements.
With all the above in mind, I've offered an article proposal to ALR, so we'll see what response I get. Whatever comes of that, if anything, I urge all my Australian readers to raise these issues loudly with the Consultation Committee itself.
Remember that Father Frank Brennan, the Jesuit priest who heads up the Committee, has made clear on the public record that he is not a strong supporter of freedom of speech. He is lukewarm about the issue at best; in his 1998 book on a bill of rights for Australia, he is sometimes quite dismissive of this fundamental liberal freedom. Free speech is an issue that is likely to be buried, this time round, unless a lot of noise is made.
If that happens, don't expect your protests to be taken seriously by the government next time it attempts to reduce your fundamental freedoms.
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