Better Age of X photo

Click and look at the big version.

Can you identify everyone? I originally thought the guy crouching at the front was the supervillain Avalanche, who can cause earthquakes and stuff, and wears a similar costume in the main Marvel continuity. But I'm now thinking it's probably Wolverine in an armoured costume. I hope not: it would be fun to have a relatively obscure character like Avalanche on the team, whereas Wolverine is horribly over-exposed.

Most of the other characters are obvious, even when redesigned, but a few I'm not sure about. Some will have new names in this alternative continuity - e.g. the Cyclops character near the right is apparently going to be called "Basilisk", while this world's Rogue,who is very recognisable with a green costume and her trademark skunk-stripe hair, is apparently going to be known as "Reaper".

I love the redesign of Dazzler, over on the far right; she looks like she could kick serious butt. The punkier look suits Namor. And as discussed on the other thread, the costume given to Storm will be highly popular with some demographics. ;)

Edit (a week later): it seems that the Rogue character is actually going to be called "Legacy". I much prefer "Reaper". Well, we'll soon see how it all fits together.

New at The Journal of Evolution and Technology

"The Transhuman Security Dilemma", by Ian McIntosh.

and

A review of Nicholas Agar's Humanity's End, by Jamie Bronstein.

Age of X

Here's some stuff about this forthcoming X-Men storyline by Mike Carey set in a desolate alternative reality where, for reasons yet to be explained, the X-Men (and the Brotherhood) never came into existence and the situation of mutants has become even more dire than we see it in the main Marvel diegesis.

Most of the characters and costumes have been redesigned for this alternative version of the Marvel Universe, many in ways that are much grittier - more punk, hardore, or, y'know, industrial - than what we're used to. I wouldn't be sorry if some of the new look infiltrated the mainstream books. We're also promised that this is not just an alternative reality: there will be some kind of effect on the regular continuity of X-Men (hopefully more so than the massive 1990s Age of Apocalypse event, where the only pay-off for the main Marvel continuity was that a few characters managed to cross into it from the AoA timeline).

There's a prologue book, Age of X: Alpha, in January, followed by six main instalments over February-April, when Age of X will take over the X-Men Legacy and New Mutants titles, and a couple of other supplementary volumes. Nine in all. That's a fairly small-scale event, as these things go, but enough room to develop an alternative version of things in some detail. I'm looking forward to the event and the ultimate pay-off.

And by the time it's all over, the new X-Men movie will be getting close to its release date - some time in about June, I gather. But that's a topic for another year.

The supposed rights of the fetus

Since we're talking about abortion and similar issues, here's my take, in an article that I had published in Quadrant, on what I considered at the time to be the most sophisticated arguments against abortion. I followed up with an argument more about stem-cell research (and hence about early embryos) a few years later in The Journal of Medical Ethics - but this is behind a wall.

I still think that what I wrote in Quadrant was pretty good, but of course the debate keeps moving on. My only caveat about the article is that there could be new arguments Out There that I don't consider, in a piece written the best part of a decade ago now.

For those who are not aware of it, my website includes a good sample of the writing I did for Quadrant when it was under the editorship of the late Paddy McGuinness. It also contains other interesting (I hope) stuff, including some fairly comprehensive and nearly-up-to-date bibliographies of my work, so you might want to have a poke around while you're there.

Currently reading: Mason & Dixon (1997) by Thomas Pynchon

I'm now reading this huge novel ... for the first time, to my shame (my copy has been sitting on my shelves for years now, calling out to me to set aside some time for it).

It's a hoot so far, just 100 pages in. Please don't give away too much (no serious spoilers), but any opinions on this one?

"Stop the boats!" - or not ...

This piece by Ben Eltham, entitled "Stop the fear, not the boats", contains a great deal of wisdom about the manufactured crisis that we've had in Australia for many years now, over the arrival of boatloads of would-be refugees. I don't claim to have the perfect policy, but, like Eltham, I'm not so sure that there is really such a big problem here, at least not the one that is commonly imagined.

I endorse Eltham's view that: "What Australia needs most is a new policy to change the attitudes of Australians, not the practices of people smugglers. We need a national effort to stop the fear, not the boats. A sustained campaign by government, the media and informed citizens to demystify the issues around refugees and to allay the fears of ordinary Australians might help change the debate. Rather than mounting a hysterical reaction as boat after boat reaches our shores, we might instead reflect on the opportunities we are offering desperate people to start a new life."

What I'd like to focus on for the moment, however, is something a bit different. I haven't ploughed through the 400+ comments, BUT I've looked at enough to be appalled. Perhaps if you read further than I did you'll conclude I'm overstating things. But from what I see, here's how it looks to me. Eltham has put a very careful and rationally persuasive argument, in which, among other things, he sets out what seems like strong evidence that the number of boat arrivals is driven by events in hell-holes countries that people are fleeing, not by policies in Australia and other countries that people try to flee to.

But few commenters really want to deal with that at all. Those who disagree don't even try to follow the argument or examine it, or engage with it, fairly - they simply express widely-aired, but superficial, talking points that could have come from one of the many populist journalists, commentators, shock jocks, and politicians with which Australia is well stocked. It's depressing if you think about it too hard, as, I suppose, I am hereby encouraging you to do.

Sorry about that.

CASE OF A, B AND C v. IRELAND (5)

As I've mentioned, Applicant C actually won her case, though the relatively low compensation she was awarded probably did not even pay her legal expenses. Then again, it looks as if this may have been due to poor documentation of expenses by the lawyers rather than anything else; see para 282.

As you'll recall, C travelled to England, believing she could not establish her right to an abortion in Ireland. She was in her first trimester of pregnancy at the time. Prior to that, she had been treated for 3 years with chemotherapy for a rare form of cancer. She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that, if she did become pregnant, it would be dangerous for the fetus if she were to have chemotherapy during the first trimester. The cancer went into remission and C unintentionally became pregnant. She was unaware of this fact when she underwent a series of tests for cancer, contraindicated during pregnancy. When she discovered she was pregnant, she consulted her GP and several medical consultants. She alleged that, as a result of the chilling effect of the Irish legal famework, she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the fetus. She therefore researched the risks on the internet.

Given her uncertainty about the risks involved, she travelled to England for an abortion. She wanted a medical abortion (drugs to induce a miscarriage) as her pregnancy was at an early stage but that she could not find a clinic which would provide this treatment as she was a non-resident and because of the need for followup. She therefore alleged she had to wait a further 8 weeks until a surgical abortion was possible. On returning to Ireland after the abortion, she suffered complications of an incomplete abortion, including prolonged bleeding and infection.

On these facts, an abortion would actually have been legal in Ireland - the woman's life was endangered by her pregnancy. It seems, then, from one point of view, that C had the weakest case: Ireland's anti-abortion law did not prevent her having an abortion in Ireland, as it did with A and B, whose abortions on Irish territory would have been illegal. So why was she the one who succeeded? Why didn't the court see it this way?

Partly, because, as we've seen, the anti-abortion law was not struck down. Putting it bluntly, A and B were stuffed, because the gist of their claims was really that abortions in their circumstances should not have been illegal in Ireland. Once they failed on that, they really had nothing more in their amouries.

But C was able to argue that the Irish authorities had pursued a course of conduct that hindered her in obtaining an abortion that would actually have been legal. She argued that the state had a positive responsibility (or she had a positive right), under Article 8, to measures to protect her enjoyment of her private life - or some such thing. I'm quite sceptical about the use of Article 8 or anything similar to give positive rights to citizens. Such provisions should mainly protect the citizens from state action. If the state is going to be under a positive obligation to make certain resources or information, etc., available, this should be expressed clearly and separately, and my general view is that the detail of what positive benefits the state should provide is best left to the political process.

However, it is well established in the European jurisprudence that Article 8 provides some level of positive rights against the state, and it makes sense in this particular context. If the state enacts a sweeping law that interferes with sexual and reproductive privacy, the least it can do is provide a transparent regime so that people who are adversely affected (in this case to the extent of a woman's life being in danger) can know exactly where they stand. Ireland had not been done, or so the court concluded. E.g., it had enacted no statutory provision setting out when a woman could legally obtain an abortion.

The court decided the following question in C's favour: "whether there is a positive obligation on the State to provide an effective and accessible procedure allowing the third applicant to establish her entitlement to a lawful abortion in Ireland and thereby affording due respect to her interests safeguarded by Article 8 of the Convention."

No framework was established in Ireland for a woman to be able to determine and prove that her intended abortion was legal - short of initiating a constitutional action in the courts, or, I suppose, of allowing herself to be arrested and then defending herself at the trial on the basis that there was a real and substantial risk to her life - not "merely" health - which could only be avoided by terminating the pregnancy. In the end, C was awarded an after-tax sum of 15,000 Euros, and Ireland will now have to put some better provisions and procedures in place for women who want certainty about whether their contemplated abortions are legal.

I suppose this aspect of the case is a good outcome, though one might ask why, once everything else is determined against the woman, she shouldn't be required to raise the relevant defence if arrested and brought to trial. How is this different from other crimes where there is a statutory, common law, or constitutional defence? Be that that as it may, C succeeded in getting some money for what she'd suffered from the lack of a ready means of vindicating her right to an abortion in Ireland, and Ireland will now have to establish a more transparent and user-friendly regime for women who want abortions to be able to ascertain their legal rights and obligations.

But that's very much a consolation prize. Ireland gets to retain its sweeping prohibition of abortions - at all stages of gestation, and even if the woman's health (but not life) is endangered - backed up by a life sentence. That's highly illiberal, and Ireland is a lousy excuse for a liberal democracy. Finally, you're naive if you don't draw a connection with the power, within Irish politics and society, of the Roman Catholic Church. As always, that organisation is an enemy of individual liberty; it will seek to impose its moral views through state coercion wherever it can.

CASE OF A, B AND C v. IRELAND (4)

As I mentioned yesterday, we are now approaching the climax of the case. The first important finding by the European Court of Human Rights was that the notion of "private life" used in Article 8 of the European Convention was a broad concept, encompassing such things as the right to personal autonomy and personal development generally; gender identification, sexuality, and sexual life; a person’s physical and psychological integrity; and decisions both to have or not have children, or as to whether to become genetic parents.

None of that should be especially controversial and it should be enough to show that a law against abortion is interfering in private life, as understood in European human rights law. But that does not mean that Ireland's barbaric, theocratically-tinged anti-abortion law was simply struck down (as it would be under a truly robust human rights regime). Rather, the court reiterated its earlier view that the woman’s right to respect for her private life must be weighed against other competing "rights and freedoms", including those of the unborn child.

This is, of course, nonsense. An "unborn child", by which the court means an embryo or a fetus, is not the kind of thing that can have rights and freedoms. Until far later in pregnacy than we are talking about here, it does not even possess the capacity for pleasurable and painful experiences! It is not a sentient thing at all. Even when it attains sentience, it is not a person - it has no ability to make plans and decisions, to imagine itself as having a future, or to choose between options. Thus, it has no "rights" that it can either exercise or choose to waive and it has no "freedoms" that could be interfered with by the state or anyone else. Talk of the "rights" and "freedoms" of something like an embryo or a fetus is exactly the sort of facile, shallow rhetoric that we should be trying to keep out of these legal and policy matters.

Might the state nonetheless have some compelling interest in ensuring that all embryos and fetuses are brought to term - an interest so powerful as to justify a legal prohibition backed up by a life sentence? If so, it's difficult to imagine what this interest could be. Perhaps, I suppose, in a Battlestar Galactica situation, with the human species near extinction, it might be absolutely essential that as many babies be born as possible, in the interest of survival of the species itself. That, however, is hardly the situation in today's overpopulated world, and it's hardly surprising that no argument along those lines was put to the court!

Instead, the arguments were about enforcing the popular morality. But that's exactly one of the things that human rights should be protecting us from: from governments that attempt to enforce a popular morality against people, perhaps a minority, who don't accept it, and in the absence of some better reason relating to the secular welfare of its citizens, or perhaps of other sentient creatures, or to social survival, or some such thing. Something should be identified that could be accepted by people with a wide range of worldviews - religious, anti-religious, etc. - as being of compelling interest to the state and its officials. But of course, nothing like that was ever identified.

In the event, the court found against applicants A and B on the basis that the degree of interference with their private lives was provided for by law and was based on the Irish majority's, ahem, "profound moral values concerning the nature of life". But this is, again, nonsense. No government should simply be imposing the moral values of the majority, whether "profound" or shallow and superficial (as was obviously the case here). Governments in Western democracies should, on the contrary, be ensuring that both the majority and the minorities are able to live in accordance with their respective moral values. The government is not there to decide the correct moral values, all things considered, and impose them on those who disagree. It has more narrowly worldly, more mundane, tasks such as trying to maintain internal peace; defending against external aggressors; establishing a system of property, ownership, and commerce; providing an adequate economic safety net; and taking over such other secular functions as are entrusted to it democratically (for which it will need to raise taxes).

I must pay my taxes and comply with other elements of the secular law such as described in the previous paragraph, but that's all. The state should not be interfering with such private moral decisions as whether or not I, or my spouse or lover, will have an abortion. That is not the state's business. The most it should do is regulate abortion providers, much like other operations, to ensure that adequate standards of safety and competence are met.

Obviously this is not how it's seen in Ireland, where the government and the electorate apparently think it's okay to impose the majority's supposedly "profound" moral viewpoint, even to the extent of imposing a life sentence behind bars on those with the temerity to disagree. That is tyranny of the majority, not liberal democracy in action. Ireland is, to an extent atypical of countries that purport to be liberal democracies, heavily biased towards a theocratic approach that obviously has much popular backing.

Moreover, there's not much that European human rights law can do about it. To a large extent - not totally, but to a large extent - European human rights law is a toothless tiger, and this case demonstrates the point.

The one thing that can be said in favour of the European Convention and the European Court is that the latter gave an indication that it might not have been prepared to accept the Irish law if not for the safety valve that Ireland allows women to travel to other countries to obtain abortions. Ireland does not attempt to prohibit its citizens from having abortions in foreign jurisdictions where they are otherwise legal.

But in any event, applicants A and B failed. As the court put it:

Accordingly, having regard to the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland, the Court does not consider that the prohibition in Ireland of abortion for health and well-being reasons, based as it is on the profound moral views of the Irish people as to the nature of life (paragraphs 222-227 above) and as to the consequent protection to be accorded to the right to life of the unborn, exceeds the margin of appreciation accorded in that respect to the Irish State. In such circumstances, the Court finds that the impugned prohibition in Ireland struck a fair balance between the right of the first and second applicants to respect for their private lives and the rights invoked on behalf of the unborn. (para 241)

On the other hand, applicant C succeeded in her case against Ireland. We'll get to that next time.

CASE OF A, B AND C v. IRELAND (3)

Let's return to this case for a bit. In previous posts, we've considered Irish law and we've considered the respective facts relating to the three applicants.

Much of the long judgment relates to procedural issues such as whether the applicants could be considered, as a matter of practicality, to have exhausted their remedies under Irish law before seeking the assistance of European human rights law. After consideration of this and under points, the applicants were allowed to go ahead with aspects of what they were claiming in the European Court of Human Rights. All this is of interest to lawyers in the jurisdiction, but not of much interest from a public policy perspective, or a philosophical one.

The main basis for the applications was alleged breach by Ireland of Article 8 of the European Convention on Human Rights. This provides as follows:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As you'd expect, arguments were put to the effect that Irish abortion law and/or its interpretation and application by the government breached this right of privacy. But before we go any further, it would be good to take note of what a toothless tiger Article 8 is!

It allows the government to breach the kind of privacy that it describes by enacting laws that are "reasonably necessary in a democratic society ... for the protection of ... morals." But that is almost no protection to the individual at all. If the government can enact such laws as are reasonably necessary for the purpose of enforcing "morals" then the convention simply does not protect Europeans from moralistic legislation, which is exactly what you'd think such a convention was for. Obviously, this sentence tends to get read a bit more narrowly so that it does give a certain amount of protection, but on its face Article 8 of the convention is useless. It should be amended to take out the reference to protection of morals, and similar amendments need to be made throughout the convention. No Western democracy should be enacting laws that invade sexual and reproductive privacy merely for the protection of morals, as opposed to protecting people from harm to their secular interests.

This is, incidentally, a problem that runs right through international human rights law, including UN conventions. It countenances a great amount of illiberalism. I often feel like I'm a voice crying in the wilderness when I make this point, but it became important in the case that we're discussing. It left the applicants hamstrung in what they could actually submit to the court. Instead of being able to put a clear, clean submission that Ireland's abortion laws interfered with sexual and reproductive privacy for no compelling reason (or any compelling interest that the state might have in ensuring that all fetuses are brought to term), the applicants were forced to put complicated and, let's face it, contrived-sounding submissions.

We need to create the momentum for a movement to critique this illiberal aspect of international human rights law.

The Irish government, of course, submitted that "The protection accorded under Irish law to the right to life of the unborn was based on profound moral values deeply embedded in the fabric of society in Ireland and the legal position was defined through equally intense debate."

Frankly, I doubt it. I suspect it is based on the shallow moral values of people who are not prepared to interrogate the morality they have been taught to see how far down it can actually be justified. I get sick of the word "profound" whenever religion, or some kind of morality that is intertwined with religion, is under discussion. I suggest that every time the word "profound" is used in such a context we simply replace it with the word "shallow" ... and we'll invariably get a more accurate statement.

Okay, we're moving towards the climax of this series of posts, but that's enough for one day. Back soon with more on this fascinating case. We're now up to about page 45 of 75, at paragraph 180, for anyone who is trying to follow all the detail.

Article in The Drum (ABC)

The state, religion and the need for rational scrutiny ... by Russell Blackford.