Care

The fascinating 'Care as a constitutional value' by Sandra Fredman in (2024) International Journal of Constitutional Law comments 

 The centrality of care to society is increasingly recognized as an issue of public concern. Although painfully brought into focus during the COVID-19 pandemic, the public importance of care was already receiving attention well before then. Important scholarly work by feminists, labor lawyers, feminist economists, and scholars of relational theory and care ethics has been augmented by developments in international policy and human rights law. In 2015, the world committed itself to the ambitious fifteen-year program “Transforming Our World” through the Sustainable Development Goals (SDGs). SDG 5 promises to recognize and value unpaid care and domestic work, including through the provision of public services and infrastructure, social protection policies, and the promotion of shared responsibility within the household. This is reflected too in the international and regional human rights arena. In its 2019 Centenary Declaration for the Future of Work, the International Labour Organization (ILO) emphasized the importance of the care economy for transformative gender equality, proposing sustained public investment in childcare and long-term care services both to boost the economy and achieve decent work opportunities for women. In 2023, Argentina submitted a request to the Inter-American Court of Human Rights asking the Court to determine, inter alia, the nature and scope of the right to care and its interaction with other rights. To this has been added the voice of the World Bank, which describes “the care economy [as] essential in daily life and a driver of economic growth, human capital development, and employment.” Investments in the care sector, it claims, could produce up to 299 million jobs globally by 2035. Nor does the need for greater attention to care relate solely to its implications for women. It is of central importance to young children and their rights to quality early childhood care and education; to people with disabilities; to older people; and to paid and unpaid care workers. Care work has also been recognized as green and sustainable. 

This raises the question of whether care should be regarded as a constitutional issue, and what that might entail. Traditionally, care was regarded as taking place within the private sphere, beyond the quintessentially public nature of constitutions. Characterized as emotional, intimate, and relational, care appeared an unlikely candidate for constitutional ordering. However, feminists have long noted that the notion of a rigid public–private divide is itself a patriarchal construct, permitting the perpetuation of unequal power structures in the private sphere. Nor is it possible to contain these inequalities within the home. Patriarchal assumptions that care should be performed by women unpaid in the home have spilled over into paid caring work, dragging down the value of paid caring work and increasing the risk of precarity for women entering the paid workforce. 

Acknowledging that care traverses the putative public–private divide does not in itself mean that care should be a constitutional matter. Care could remain an issue for the family or the free market, as has been witnessed by the increasing commodification of care. Or it could be left to ordinary legislation, such as labor law and social security. However, experience reveals the weaknesses in all these approaches, across many jurisdictions. Labor laws have been unable to grapple with unpaid caregiving work, either in itself, or in reducing women’s options in the workforce and depressing their pay. Nor have labor rights reached paid care workers in precarious work. Social protection, where available, is frequently premised on a stigmatic view of recipients, whether caregivers or cared-for, and is increasingly conditional on undertaking formal work. As was starkly apparent during the Covid pandemic, caregiving, whether paid or unpaid, remains a fertile arena for exploitation, both for carers and the cared-for, especially for the most marginalized: migrant, racialized, gendered, poor, and working-class people. Such exploitation is only heightened when care is regarded as a matter for the market. Yet care is at the core of our society. 

This article explores the potential of regarding care as a constitutional issue, rather than addressing it solely within the legislative or regulatory space or leaving it to the family or the private market. I suggest that care is best regarded as a constitutional value, reflecting the reality of our interdependence, and functioning as a crucial counterweight to the fiction that individual freedom can be constituted independently of our social relations. Care as a constitutional value should be regarded as complementing express constitutional commitments to freedom, dignity, and equality, recognizing that relationships are constitutive of the self, and that individuals are partly constituted by society. This is in step with developments towards positive constitutionalism, challenging the premise that the sole function of constitutions is to protect individuals from state interference through largely negative entitlements. Just as freedom, dignity, and equality perform important expressive functions in a constitution, so the recognition of care, implicit or explicit, signals the foundational importance of care to everyone throughout our lives and to society’s ability to reproduce itself. Together with this expressive function, care as a constitutional value should permeate the interpretation of constitutional and other provisions, and enhance accountability for care-related decisions. 

It is not suggested that a constitutional recognition of care will, without more, guarantee that governments, courts, and societies will give care its appropriate value, any more than constitutional commitments to freedom, dignity, and equality, on their own, have brought greater freedom, dignity, or equality to society. Other changes might be needed in the political and institutional structures which embed a constitution. Such issues, which might include changes in judicial appointments, and a broader commitment by the state to redistributive policies, are beyond the scope of this article. Nor is it suggested that a constitution should set out a detailed set of rules in relation to care. Nevertheless, care as a constitutional value can have traction by infusing the interpretation of the constitution, legislation, and policy, requiring the state to pay attention to the value of care in its decision-making. Care as a constitutional value can also act as a catalyst for political activism, legitimating grassroots campaigns for better recognition of care. 

This article is normative, examining how constitutions should be shaped to encompass the foundational value of care in society. At the same time, the article is grounded in existing constitutions. Its exploratory and normative propositions are tested by drawing on constitutions and constitutional jurisprudence in four jurisdictions. Two are from the global south: India and South Africa; and two from the global north: Canada and the United Kingdom. I choose these because their legal systems are primarily in English; they share a colonial past and therefore a somewhat similar common law judicial reasoning process; they regularly cite each other’s jurisprudence; but they are at different developmental stages, have different judicial approaches and differing ways of socializing care, and are therefore interesting to compare. The United Kingdom differs in not having an entrenched, written constitution but gives statutory recognition to the European Convention on Human Rights (ECHR) and has previously incorporated EU law. I also refer briefly to the proposed constitutional changes relating to care in the Irish constitution, rejected in a referendum in 2024. The article does not, however, provide comprehensive case studies of these jurisdictions. Instead, it draws on constitutional texts and jurisprudence in these systems to test the concepts explored here. 

Section 2 examines the challenges of care in the context of the cluster of interlocking care relationships. Section 3 demonstrates the gaps and silos in existing regulatory structures, focusing on labor law and welfare law, as well as the increasing role of the private market. This sets the scene for the central question of what added value a constitutional perspective on care might bring. Section 4 considers the potential role of constitutions, arguing that care is best regarded as a constitutional value, and examining how this might be reconciled with judicial theories of interpretation and principles of the separation of powers. In Section 5, I imagine how care as a constitutional value might reshape judgments and legal principles in a selection of challenging cases in the four jurisdictions.

Consent

'Capacity to Consent to Sex: A Historical Perspective' by Laura Lammasniemi in (2024) Oxford Journal of Legal Studies 

 provides a historical perspective on capacity to consent to sex. It examines who could make decisions about sex, whose consent mattered and why. The article draws from legal history and from transcripts and testimonies in unreported sexual offence cases in England, heard in the Central Criminal Court in London and the regional assizes between the years of 1918 and 1950. These cases, often involving vulnerable complainants below the age of consent and those with mental disabilities, show that the concept of capacity was neither fixed nor clearly articulated. The article argues that, historically, capacity was not a biological or med- ical construct, but rather a social one, influenced by notions of class, gender and even eugenic ideals. The article demonstrates that, during this period, sexual offence law enabled social and population control, and that, despite significant legislative advances, capacity remains a fraught concept.

Lammasniemi comments 

Who is allowed to consent to sex, and whose consent matters? How does a child gain capacity to consent, and can adults lose it? In this article, I will examine these questions in a historical context. Specifically, I will analyse the boundaries imposed upon women’s and girls’ capacity to consent by criminal law, and how those boundaries were interpreted in English criminal courts in the early 20th century, during the decades leading up to the enactment of the Sexual Offences Act 1956. 

In this article, I advance an argument that the undefined concept of capacity, as used in criminal courts, was neither a biological nor a medical assessment, but rather a social one, influenced by notions of class, gender and eugenic ideals. To support this argument, I will trace the legal history of capacity in this context and draw extensively from transcripts and testimonies in lower-level sexual offence cases. In so doing, I will build upon existing historical scholarship on sexual offences and show that the law failed vulnerable complainants in two distinct ways. First, it failed to sufficiently protect vulnerable people against sexual exploitation and harmful sexual activity. Secondly, it failed to protect the autonomy of those with different capacities, often labelled ‘mentally defective’, and prohibited them from engaging in consensual sexual encounters and romantic relationships. This article and the arguments within are drawn from an analysis of nearly 200 case files of sexual offence cases heard in lower-level courts,  namely the Central Criminal Court in London and the assizes outside London, in the years 1918–50. Of these 200 cases, 135 were accessed through a privileged agreement with the Ministry of Justice. In line with that agreement, all names, locations, dates and identifiable data have been removed, and pseudonyms are used throughout. These cases represent a small fraction of all cases heard in the period, and the files that remain in the archives are fragmented—particularly those from the early years of the 20th century—and consist of partial details of transcripts, testimonies and depositions given at the police station. While record-keeping improved during the interwar years, there are significant gaps in the records; for most cases heard in the period, there were no surviving records beyond names in the Court Books. Where partial details of the case exist, the case details have been triangulated using other available sources—mainly online newspaper archives, along with census and workhouse records—to form a fuller picture of the case or to find the sentence imposed. 

The argument and methods used in this article are significant in three ways. First, I demonstrate that—historically—capacity was a crucial, if undefined, tenet in sexual offences law. There is little legal historical scholarship on capacity to consent to sex. Throughout history, capacity and incapacity have been legislated through medical and mental health law, and therefore most scholarship on capac- ity is focused on this context.6 Yet, there is related historical literature on mental disabilities and institutions7 and on the age of consent, both of which touch upon the concept within a criminal context. Out of this broader, rich scholarship on institutions and regulatory regimes on mental disabilities, I will draw pre- dominantly on scholarship on ‘mental deficiency’, as laws regulating ‘deficiency’ directly interacted with sexual offences law. By analysing the legal history of the concept and associated narratives in criminal courts, I will demonstrate that, historically, capacity as it was used in the courts was not objectively assessed. Instead, this assessment, both in law and in practice, was clouded by external factors such as social class, gender and the ideals of the eugenics movement. Secondly, by examining a range of previously unanalysed, unreported lower-level cases, I shed light on women’s lived experience of law during the period. Analysis of these lower-level trials, rather than those in the then appellant courts of the Court for Crown Cases Reserved or the Court of Criminal Appeal, gives an insight into how criminal law functioned in practice. This practice was often far removed from set principles in the period. The analysis illustrates the difficult experiences of women and girls within the criminal justice system, and how they attempted to navigate that system. Both these contributions are of wider impor- tance, as it was during this period of the late 19th century and early 20th century when legal principles were solidified, and the conceptual foundations of modern sexual offences laws were laid. 

Finally, gaining a better understanding of that legal history is of contemporary relevance, as issues related to capacity are yet to be resolved, despite significant legislative advances in the 2000s. While an assessment of capacity is now built into the language of the law,11 there remains ambiguity over its definition, and the extent to which intoxication, power relations or mental disabilities can impact capacity. 

This article assesses the concept of capacity in the following three sections. In section 2, I discuss the fragmented laws on sexual offences in the period, to illustrate the importance of capacity to the contemporary sexual offences framework, and its conceptual inconsistencies within that framework. In section 3, I focus on children and young people, arguing that, despite clear boundaries setting a minimum age of consent, working-class girls in particular had to attest to their incapacity. Finally, I focus on prosecutions under the Mental Deficiency Act (1913, and discuss capacity and incapacity in the context of mental disability and institutionalisation. The case analysis in section 4 also illustrates the extent to which criminal courts enforced and opted into social control and eugenics, and the impact this had on the lives of women caught in those regulatory regimes.

Decriminalisation

The Qld Law Reform Commission A decriminalised sex-work industry for Queensland report states 

The Queensland Government has committed to decriminalising sex work. In August 2021, the Attorney-General asked us – the Queensland Law Reform Commission – to conduct a review and recommend a framework for a decriminalised sex-work industry in Queensland. Our recommended framework treats sex work as work, not as a crime. It aims to regulate sex work as far as possible under the same general laws and in the same way as other work. Our review found that this is a better way to enhance safety, promote health and protect the human rights of people working in the industry. 

Why changes are needed 

The current system regulates sex work as prostitution, under criminal laws and licensing laws. These laws stigmatise sex workers, increase their vulnerability to exploitation and violence, and fail to protect their human rights. They prevent sex workers from working together and adopting safe work practices. Sex workers should not have to choose between working lawfully and working safely. 

The current laws are difficult to comply with and inhibit sex workers from accessing basic work rights. They isolate sex workers and create barriers to accessing health, safety and legal protections. Sex workers are reluctant to report crimes committed against them to police, because they fear being arrested or not being believed. We heard sex workers experience stigma and discrimination, in part because sex work is criminalised. The current licensing system for brothels has been taken up by only a small part of the industry. This has created a two-tiered industry where most sex workers are criminalised or working outside the licensed sector. 

The law should respond to reality, not myths. Stereotypes about most sex workers being street workers, victims of exploitation or trafficking, or ‘vectors of disease’ are not supported by the evidence or reflected in the diversity of the sex-work industry. The assumption that decriminalising sex work will increase the size of the industry is also unsupported. 

The reality is that sex workers already operate in suburbs, towns and commercial areas. Sex-worker organisations told us most sex workers value their privacy and operate discreetly. Most prefer not to work in the industrial zones in which licensed brothels mainly operate. Single operators work from their homes or other places in residential areas. Most sex work is arranged online or by phone, not by sex workers soliciting on the street. Research shows sex workers take care of their sexual health, have high levels of voluntary uptake of safer sex practices, and do not have rates of sexually transmissible infections (STIs) that are higher than the general population. Evidence from other jurisdictions suggests decriminalisation will not lead to an increase in the number of sex workers. 

Any criminal elements in the industry are best targeted by police enforcing criminal laws, not by licensing laws that are ill-equipped for that task. Research and evidence supports decriminalisation as the best way to safeguard sex workers’ rights, health and safety. 

The aims of decriminalisation 

Decriminalisation recognises sex work as work, not as a crime. It does not mean no regulation. Our recommended framework aims to treat sex-work businesses the same as other lawful businesses, with the same general laws applying to all. Sex-work businesses should be neither unfairly disadvantaged nor unfairly privileged. 

Special laws that single out sex work are not needed since laws of general application are fit for purpose. These general laws – including work, public health, advertising and public amenity laws – protect the rights of individuals and the public interest. Decriminalisation aims to help reduce stigma and discrimination, and safeguard sex workers’ rights, health and safety. 

Safeguards against exploitation 

Decriminalising sex work does not mean there should be no laws to protect the vulnerable. Sex work is between consenting adults. It is not the same as sexual exploitation, which is coercive or involves children. We recommend criminal laws with serious penalties for those who coerce individuals to provide commercial sexual services or involve children in commercial sexual services. This is needed to protect human rights. ... 

What we recommend 

Decriminalisation 

‘Each time I work I have to decide if it’s worth possible criminal charges ... to have someone working with me for security in order to be safe, or if it’s best to risk an assault, robbery or rape just to make sure I don’t face any criminal charges and ensure stability in my life.’ —Sex worker submission 

Working alone or with others 

The offences in chapter 22A of the Criminal Code create barriers to sex worker safety and access to justice. They make all sex work a crime, except in licensed brothels or by private sex workers working alone. The offences isolate sex workers, forcing them to choose between working safely or working lawfully. The offences are broad, unworkable and stigmatising. Research from decriminalised jurisdictions shows that removing sex work offences results in better outcomes for sex workers without expanding the size of the industry. 

Decriminalising sex work means recognising and regulating sex work as work, rather than as a crime. In our view, sections 229G to 229K of the Criminal Code are inconsistent with decriminalisation and should be repealed, along with related provisions in sections 229C to 229F and 229M to 229O. Repeal is needed to remove barriers to safe work practices, remove disincentives for sex workers to report crimes to police, and protect the human rights of sex workers and others. 

The related nuisance offence in section 76 of the Prostitution Act is inconsistent with decriminalisation and should also be repealed. Public nuisances are covered by existing general laws. 

Sex work will not be a crime. Subject to compliance with laws of general application, like planning laws and public nuisance laws: • it will be lawful for sex workers to work alone or for 2 or more sex workers to work together • it will be lawful to operate sex-work businesses, for sex workers to work at them and for clients to obtain services from them. 

Public soliciting 

Street-based sex work is a very small part of Queensland’s sex-work industry. It has become less common and there are no longer any specific locations in the state that are known for this form of work. Soliciting for sex work has shifted from the street to online. 

In our view, sex workers should not be singled out for special laws about public soliciting. These laws are not compatible with decriminalising sex work and treating it as legitimate work. The specific public soliciting offence and related provisions in sections 73–75 of the Prostitution Act should be removed. 

General laws about commercial soliciting and touting in public places apply to sex workers, like anyone else. Local governments should not make local laws specifically regulating public soliciting for sex work. 

Submissions were overwhelmingly opposed to any continued criminal law specifically against public soliciting for sex work. Research and submissions tell us people engaging in street-based sex work are more likely to be socio- economically marginalised and vulnerable. Continued criminal offences for public soliciting when other forms of sex work are decriminalised would further marginalise these workers. Street-based sex workers are more likely to experience violence and abuse. Risks to their health and safety are made worse by public solicitation offences. When these offences are removed, relationships between sex workers and the police may improve, allowing police to be seen as protectors of these workers rather than their prosecutors. Removing the offence may also reduce barriers to street-based sex workers accessing support services. 

Removing the public soliciting offence is consistent with human rights, especially in promoting sex workers’ freedom of movement. In our view, there is insufficient justification for restricting public soliciting in certain areas or at certain times. In submissions and consultations, we did not hear of any evidence that street-based sex work is prevalent or an issue of concern around schools, places of worship or hospitals. The specific move-on power for police if they suspect a person is soliciting for sex work, in section 46(5) of the Police Powers Act, should be removed. No other form of work is singled out in this way. It would be inconsistent to remove public soliciting offences and keep a specific move-on power. If police continued to have a sex-work- specific move-on power, sex workers might prioritise avoiding police over their own health and safety. 

Without a public soliciting offence and a specific police move-on power, there will still be several options to address any public amenity impacts of street-based sex work, including the public nuisance offence, general police move-on powers and non-regulatory solutions. Importantly, these options arise under existing general laws that apply to everyone. This is consistent with the aims of decriminalisation. 

The same general public nuisance laws and police move-on powers apply to everyone, including sex workers. Sex workers will not be singled out by special laws against public soliciting or street-based sex work. 

Sex-work advertising 

The Prostitution Act includes several sex-work-specific advertising offences. As explained in chapter 13 of our consultation paper, the legislation imposes many strict requirements on what ads can contain, where they can be published, what size they can be, and the wording or images that can be used. Many of these requirements are included in section 15 of the Prostitution Regulation and in the guidelines issued by the Prostitution Licensing Authority (PLA) under section 139A of the Prostitution Act. 

We heard these laws negatively affect sex workers and business operators. They are difficult to comply with, create barriers to negotiating with clients effectively and safely, and put people at risk of being fined and having a criminal record. 

In our view, the sex-work-specific advertising offences are not needed and should be removed. No new offences should be made. Singling out sex work for special advertising offences is inconsistent with the aims of decriminalisation, including the recognition of sex work as legitimate work. 

The Prostitution Regulation currently includes assessment benchmarks for brothel signage. In our view, these benchmarks should be removed. Signs for sex-work businesses should be regulated by any relevant planning requirements and local laws, like signs for other businesses. The same general laws, standards and codes that apply to all advertising in Australia apply to sex-work advertising. Removing sex-work-specific offences does not mean sex-work advertising or signage will be unregulated, or that the community will be exposed to explicit and offensive material. Community expectations and concerns can be met by general advertising laws, standards and codes. 

The same general laws, standards and codes that regulate all advertising apply to sex-work advertising. Sex work will not be singled out by special advertising offences. It will be lawful for sex workers to describe their services (including massage), and for sex-work businesses to advertise job vacancies. Sex-work advertising will no longer be required to be in an approved form, and will not be prohibited on tv or radio. Like signs for other businesses, signs for sex-work businesses can be regulated by planning requirements and local laws. 

Police powers 

Sex-work-specific covert powers given to police under the Police Powers Act create a strong sense of fear and mistrust, and contribute to barriers to sex workers’ safety and their access to justice and human rights. 

In our view, these police powers will no longer be needed if the sex-work-specific offences in chapter 22A of the Criminal Code and in the Prostitution Act are repealed, as we recommend in our report. 

Police will not have extra powers, like posing as clients, to gather evidence of sex-work-specific offences, which will be removed. 

Licensing 

‘For my entire time in Queensland there has been a licensing system including screening of brothel owners. ... There is no logic behind the idea that licensing deters illegal activity. In Queensland, licensing takes the industry and divides us into legal and illegal.’ —Sex worker submission 

Queensland’s current licensing system applies to the operators and managers of brothels. A person who operates a sex-work business with 2 or more sex workers must hold a licence and follow licensing rules and conditions. Sex work other than in a licensed brothel or by a private sex worker working alone is criminalised. 

With some exceptions, submissions were overwhelmingly opposed to a licensing system for sex-work business operators. In our view, the current licensing system should be removed, and no new licensing system should be introduced. We also consider that a licensing or registration system for individual sex workers is not needed and should not be introduced. The Prostitution Licensing Authority (PLA), and its associated Office of the Prostitution Licensing Authority, will no longer be needed and should be abolished. 

Licensing can be a useful regulatory approach, but it does not suit all industries. The current licensing system has had some benefits for those working within it, but licensing has been taken up by only a very small part of the industry. 

Licensing creates a two-tiered industry of licensed and unlicensed operators. There are 20 licensed brothels in Queensland, estimated to be 10% of the industry. Most sex workers work outside the licensed sector, whether privately or at unlicensed businesses. In combination with the sex-work offences in the Criminal Code, this undermines sex workers’ rights, health and safety, and access to justice. Relatively simple and inexpensive suitability certificate schemes, such as those in New Zealand and the Northern Territory, can also create a two-tiered industry. The unlawful sector has continued despite the licensing system. Sex-work licensing does not necessarily ensure the health and safety of workers (most of whom work outside the licensed sector), does not mean that a person will be a good business operator, and is not well suited to keeping criminal elements out of the industry. Any criminal elements in the industry are a matter for the enforcement of criminal laws by law enforcement agencies, not licensing. 

In our view, sex-work-specific licensing is not effective and not needed. Work health and safety benefits can be achieved under laws that regulate sex work in the same way as any other work or business. Decriminalising sex work will remove barriers to sex workers’ access to work rights and protections. In chapter 4, we recommend public-health-informed work health and safety guidelines be developed for and in consultation with the sex-work industry. 

Removing the current licensing system will reduce costs for the industry and government, and give sex-work business operators a more level playing field. 

There will be no sex-work licensing or certification. The Prostitution Licensing Authority will be abolished and there will be no sex-work-specific industry regulator. 

Health, safety and worker rights 

Work laws, health and safety 

‘[T]he best method to ensure individuals in the sex-work industry meet their work health and safety standards is to develop guidelines that appropriately include sex workers and sex-work businesses [under] existing workplace laws.’ —One Woman Project submission 

Decriminalising the sex-work industry and recognising sex work as lawful work will remove barriers and enhance access to entitlements and protections under existing work laws. 

Queensland’s work health and safety laws aim to ensure the health and safety of workers while at work, and others who may be affected by the work. These laws apply to all workers, including sex workers, and Workplace Health and Safety Queensland (WHSQ) is the regulator responsible for making sure these laws are followed. 

To further support improved access to work health and safety protections, we recommend that WHSQ develop work health and safety guidelines for the sex-work industry. The guidelines should be developed in consultation with the sex-work industry, including sex-worker organisations and other relevant people and agencies. Guidelines will help sex-work business operators and sex workers understand their rights and duties under work health and safety laws, and give practical guidance about how to meet them. In a decriminalised context, sex work is legitimate work, not a crime. In our view, special laws like those in some other jurisdictions are not needed to state that: • a contract for sex work is not illegal or unenforceable on public policy grounds • a sex worker may, at any time, refuse to perform sex work • a contract for sex work does not constitute consent for the purposes of criminal law. 

These matters will be recognised and addressed by the application of existing laws to sex work as lawful work, including laws dealing with contracts, work health and safety laws, and sexual consent laws. 

Sex work will be recognised as lawful work. The same general work laws that apply to other workers and businesses apply to the sex-work industry, including work health and safety laws. Workplace Health and Safety Queensland is the regulator responsible for making sure work health and safety laws are followed. Guidelines will help the sex-work industry understand and implement their work health and safety rights and duties. 

Public health and sex workers 

‘Sex work could be regulated like other businesses using workplace health and safety frameworks supported by existing public health legislation and infection control guidance without the need for additional regulation...’ —Queensland Health submission 

‘Existing laws regulating sex work contribute to poor public health outcomes by promoting stigma and discrimination towards sex workers, which in turn can lead to increased rates of HIV and other STIs.’ —Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine (ASHM) submission 

In our view, sections 77A, 89 and 90 of the Prostitution Act, which require the use of prophylactics by all sex workers and their clients and prohibit sex workers at licensed brothels from working with a sexually transmissible infection (STI), are not needed and should be removed. No similar sex-work-specific offences should be enacted. 

Sex-work-specific health offences criminalise and stigmatise sex workers and are not consistent with the aims of decriminalisation. They are a barrier to good health outcomes and do not align with evidence-based best practice in public health, which promotes informed and voluntary adoption of safer sex practices for the successful prevention of STIs and blood-borne viruses (BBVs). 

Public health laws and sexual health policies create a supportive environment to promote the optimal sexual health of sex workers and clients, while providing the necessary safeguards to protect public health. The Public Health Act supports a best-practice framework to manage ‘notifiable conditions’, including several STIs of particular significance to public health. As discussed in this chapter, work health and safety in the sex-work industry, including safer sex practices, is addressed by general work health and safety laws and will be the subject of specific guidance in the guidelines we recommend be developed for the sex-work industry. 

Health promotion, peer education, and access to health and other support services are important factors in the successful prevention of STIs, and we have made recommendations about this in chapter 7 of our report. 

Public health laws and policy approaches apply to protect public health and promote the health of all Queenslanders, including sex workers and clients. 

Work health and safety laws that apply to everyone at work ensure the work health and safety of sex workers and clients, including by the adoption of safer sex practices. Sex workers will not be singled out by special criminal laws. Informed and voluntary safer sex practices and sexual health testing will be supported. 

Discrimination protections 

Sex workers experience significant stigma, discrimination, and barriers to exercising their rights. Decriminalising sex work will remove some of these barriers and is a necessary first step to addressing stigma and discrimination. Protections under the Anti-Discrimination Act need to be strengthened as part of the decriminalisation framework. This is consistent with the aim of reducing stigma and safeguarding sex workers’ human rights, including the right to equal and effective protection against discrimination. In our view, the protected attribute of ‘lawful sexual activity’ in the Anti-Discrimination Act should be retained and its scope clarified and strengthened. The current definition, which limits the attribute to lawful sex workers, should be removed. Instead, ‘lawful sexual activity’ should be defined in the Act to include being a sex worker or engaging in sex work. For this purpose, ‘sex work’ should be defined to mean ‘an adult providing consensual sexual services, involving physical contact, to another adult in return for payment or reward’. These definitions make it clear that the protection applies to sex workers and includes engaging in sex work within the meaning of this review. However, the ‘lawful sexual activity’ attribute is defined inclusively and will not be limited to sex work. 

Exemptions in the Anti-Discrimination Act that presently allow discrimination specifically against a person because they are a sex worker are not needed, are inconsistent with decriminalisation, and should be removed. We recommend changes to: • repeal the ‘accommodation exemption’ that allows accommodation providers to discriminate against sex workers • repeal the ‘work with children’ exemption as it applies to sex workers, which allows employers at jobs that involve the care or instruction of children, like schools or childcare centres, to discriminate against a job applicant because the applicant is also a sex worker. The legislative changes we recommend in this chapter should be accompanied by adequately resourced education and awareness to help address stigma and discrimination, and to support sex workers to understand and exercise their rights. In developing our recommendations, we considered the Queensland Human Rights Commission’s (QHRC) 2022 review of the Anti-Discrimination Act. Our recommendations are limited to current provisions in the Act that are specifically about sex workers. 

A person who is a sex worker or engages in sex work is protected from unlawful discrimination under the Anti-Discrimination Act. 

The protection applies to ‘lawful sexual activity’, including but not limited to sex workers or sex work. Accommodation providers and employers will not have specific exemptions allowing them to discriminate, in particular circumstances, against people because they are sex workers. 

Planning and local laws 

‘When I’m working from home, I am very discreet and conscious of my surroundings and neighbours. I have set business hours, I ask my clients to park in my driveway in order not to impact others. I don’t have a red light on my letter box ... I do not have a line-up of clients down the street. An average week I would see 5–7 clients ... My neighbour gets more visitors than me. It’s stigma and prejudice ... that creates issues.’ —Sex worker submission ‘ 

[S]ex work businesses should, as far as possible, be regulated the same way as other businesses.’ —Queensland Law Society submission 

‘Sex-work businesses should not be forced into industrial zones or excluded from other areas [where] similar businesses are able to operate.’ —Sex worker submission 

Changes are needed to integrate decriminalised sex work into Queensland’s planning framework and make sure local planning instruments and local laws support the intent of decriminalisation. Currently: • some types of sex-work businesses, such as erotic massage parlours and sex-work collectives, are illegal and not specifically addressed in the planning framework • licensed brothels are subject to onerous restrictions and guided towards industrial areas • a sex worker can conduct a home-based business, but other laws limit them to working alone. We heard from sex workers, local governments and their representative organisations about challenging issues, including sex worker concerns about privacy and discrimination, and local government concerns about meeting community expectations and undertaking enforcement. 

Matters we considered included: • balancing the privacy needs and discrimination concerns of sex workers against the principles of transparency and community input that are features of Queensland’s planning system • the roles of state and local governments in setting planning requirements for sex-work businesses • the extent to which sex-work businesses should be able to operate in residential areas • providing viable avenues for existing sex-work businesses to become compliant with planning laws • sex worker and local government concerns about compliance and enforcement. 

We recommend changes to the Planning Act, Planning Regulation, Prostitution Act, Prostitution Regulation and some other legislation. Our recommendations aim to create a balanced approach to dealing with the issues above by treating sex-work businesses like other businesses, while also providing protections so the benefits of decriminalisation filter down to local government areas. 

For workers and businesses: • Planning frameworks will apply to ‘sex work services’ not ‘brothels’, better reflecting the variety of sex-work businesses. • Sex-work-specific prohibitions will be removed. • Sex-work businesses are to be treated like other businesses, with similar size and location requirements and no sex-work-specific separation distances. • Planning rules should allow sex work services to operate in centre (commercial) and mixed- use zones, not just in industrial zones. • Home-based sex-work businesses are to be treated like any other home-based business. • Sex-work businesses that apply for development approval within the first 12 months after decriminalisation starts will be protected from having information in their application used as evidence of a development offence. 

For the community: • Sex-work businesses are already operating in Queensland. • Amenity impacts can be addressed through planning requirements and development conditions in the same way as for other businesses. For sex work services, we recommend requiring that all activities relating to sex work be contained wholly within a building and not be visible from windows, doors or outside the premises. 

For local governments: • Local governments must not use local laws to single out sex-work businesses or re- establish sex-work licensing or offences. • State planning requirements for sex-work businesses will apply unless or until a local government makes its own requirements consistent with the principles of decriminalisation. 

Coercion and the exploitation of children 

‘No person should be able to force or coerce another person into providing sexual services.’ —NZPC: Aotearoa New Zealand Sex Workers’ Collective (NZPC) submission 

Queensland’s current prostitution laws do not clearly distinguish between sex work and exploitation. The exploitation offences in sections 229FA and 229L of the Criminal Code, and section 77 of the Prostitution Act, should be repealed. Offences dealing with coercion and the involvement of children in commercial sexual services should be included in a new chapter in part 5 of the Criminal Code. Decriminalising sex work will help reduce sex workers’ vulnerability to exploitation. But protection is also needed for children and people who do not identify as sex workers. Decriminalising sex work does not require the removal of criminal laws against exploitation. Criminal laws against coercion and the involvement of children are needed to protect human rights and support Australia in meeting its international human rights obligations. Such laws are justified to set a clear policy position and avoid any gaps in protection. The criminal justice system should not be the primary focal point for responding to children and vulnerable adults involved in commercial sexual services. Non-legislative measures are needed, including information and education for sex workers and police. 

Sex work, which is between consenting adults, is distinguished from sexual exploitation. Newly defined criminal offences will ensure there are serious penalties for those who coerce individuals or involve children in commercial sexual services. 

Implementation 

‘It will take some time for the industry to transition and adapt.’ —Sex worker submission 

‘In changing [the] laws, there need to be public education campaigns, peer education, and sensitivity training for organisations [who] deal with sex workers. There should also be steps taken to build positive relationship[s] between sex workers, police and other authorities, and continuation of peer support and outreach services by sex-worker organisations.’ —Member of the public submission 

Timing of commencement 

If the Queensland Parliament passes legislation to decriminalise the sex-work industry, a period of time will be needed to transition to the decriminalisation framework before it commences. This will give the sex-work industry and the Queensland Government time to prepare for the new model of regulation. The timing is a matter for the government to consider and we make no recommendation on how long the transition period should be. 

The commencement of decriminalisation reforms in Victoria in 2 stages has caused confusion and uncertainty, resulting in lengthy delays to the start of beneficial reforms. A staged approach is not optimal and should not be followed in Queensland. We recommend all legislative reforms should commence simultaneously. 

All laws needed for decriminalisation will start at the same time to avoid uncertainty. 

Transition of licensed brothels 

Decriminalising the sex-work industry will have advantages and disadvantages for brothel licensees. We recommend removing the licensing system, which will mean reducing red tape and allowing brothel owners to better compete with other sex-work business owners. It may be difficult for them to move their businesses to commercial or mixed use areas in response to changes to planning requirements. Consideration should be given to a compensatory mechanism, such as fee relief, during the transition period, to defray some of the costs of moving from the current licensing system to the recommended new framework. 

Review of legislative changes 

Decriminalising the sex-work industry will be a significant change to the current regulatory approach. In our view, there should be a legislative requirement for the responsible Minister to ensure that the operation of the legislation giving effect to this change is reviewed by a committee no sooner than 4 years and no later than 5 years after decriminalisation is implemented. The review should focus on the effectiveness of the new regulatory framework. The review might consider, but should not be compelled by law, to assess the number of sex workers, or to collect baseline data since accurate data may be hard for it to obtain. 

The decriminalisation laws should be reviewed and evaluated after 4–5 years. Representatives of relevant non-government agencies, including sex-worker organisations, should be involved in the review process. 

Education and other measures 

Decriminalisation of the sex-work industry will be a significant change to how the industry is regulated in Queensland. Changes to the law will need to be accompanied by broader measures to support transition to, and implementation of, the decriminalised framework, and to help achieve the aims of decriminalisation. The Queensland Government should take the lead role in coordinating, and ensuring adequate funding, for a range of measures we recommend. Information, awareness programs, education and training will be needed to promote health and safety in the industry, address stigma, and change attitudes to sex work and sex workers. Policies and practices will need to be developed to support the recognition of sex work as work, rather than as a crime. 

Sex-worker organisations have lived experience and knowledge of sex work and should be involved in shaping and, in some cases, delivering the measures we recommend. Adequately funded health, safety, and other peer- support and outreach services should be provided for sex workers. Improved relationships between the sex-work industry and police are vital to the success of decriminalisation. Steps should be taken to build positive relationships between sex workers, police and other law enforcement authorities. 

A temporary working group should be established to help implement the decriminalisation reforms. It should consist of regulators and other relevant government agencies, sex-worker organisations and other non- government organisations with industry knowledge. The measures we recommend are likely to be particularly important in the first few years after the sex-work industry is decriminalised, as sex workers, the sex-work industry, police, government agencies, non-government organisations and the community adjust to the new regulatory model. The need for tailored information about general laws and regulations may diminish over time as the sex-work industry is integrated into mainstream regulatory frameworks. As well as our recommendations in this chapter, we note or recommend some related matters in other chapters of our report (see chapters 4, 5, 6 and 8). 

The Queensland Government should ensure the industry, the community, and government agencies are informed about the changes to the law and aims of decriminalisation. The Queensland Government should ensure sex workers continue to have access to peer-support services. A temporary working group will help implement the decriminalisation reforms. 

Other matters 

We were asked to consider if the criminal law should be changed to address concerns about fraudulent promises to pay sex workers for agreed sexual services. Submissions to our review also raised issues about stealthing, supply of alcohol by sex-work businesses, sex work performed by strippers, and expunging sex-work charges and convictions from criminal records. These are significant and complex issues that highlight important concerns about access to justice and safety for sex workers and others. However, most of these issues are secondary to the decriminalisation of sex work and we do not make recommendations about them for specific changes to the law. 

Fraudulent promises to pay a sex worker for agreed sexual services are adequately covered by the current criminal law and our recommended framework for a decriminalised sex-work industry, including the coercion offence recommended in chapter 6. We recommend that guidance be given to police and prosecutors to help them respond to sex-worker complainants, and that community legal services support sex workers to access their legal rights. 

Stealthing, which involves the non-consensual removal of or failure to use a condom, is addressed by a Women’s Safety and Justice Taskforce recommendation that the Queensland Government has committed to implementing. The supply of alcohol by sex-work businesses should be regulated by standard liquor licensing laws, with policy developed by the Office of Liquor and Gaming Regulation (OLGR). 

Strippers who perform sex work will benefit from decriminalisation, along with other sex workers. The regulation of adult entertainment under the Liquor Act is separate to the regulation of sex work and is not a focus of our review. Workplace exploitation at licensed adult entertainment premises is a matter for regulators under general laws, including for police in cases of serious violence. It is a policy matter for the Queensland Government to consider if changes to the regulation of adult entertainment should be made. Expungement of sex-work convictions raises considerations outside the scope of our review. Some concerns raised in submissions about disclosure of criminal records for sex-work offences might be addressed by other laws. We note that the Queensland Human Rights Commission (QHRC) recommends that ‘irrelevant criminal record’ be made a protected attribute in the Anti-Discrimination Act. 

In considering these and other issues, we identify consequential amendments to other legislation to reflect our recommendations about changes to the Prostitution Act and chapter 22A of the Criminal Code to decriminalise sex work and remove the brothel licensing system. The details of these amendments are set out in the table of drafting instructions in volume 2 of our report.

Ideology and Originalism

'Judicial Ideology in the Absence of Rights: Evidence from Australia' by Zoe Robinson, Patrick Leslie and Jill Sheppard in 2020 comments 

This article investigates whether apex court judges behave ideologically in cases not involving civil, political, or economic rights. Research on comparative judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior is outside of rights-based issues. The study contributes to existing research by exploring the predictive effect of judicial ideology on the entire corpus of judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology based and uses original data on every decision by Australian High Court Justices between 1995 and 2018 to test whether, and in which types of cases, the votes of Australia’s apex court judges align with their ideology. The results show a strong relationship between ideology and voting behavior, regardless of policy area, suggesting that judicial policy preferences will inevitably find an outlet, even in the absence of authority over rights.

The dissent by Breyer, Sotomayor and Kagan  JJ in Dobbs v. Jackson Women’S Health Organization 597 U. S. (2022) 17 states in part 

The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. And that is indeed what the majority emphasizes over and over again. See ante, at 47 (“[T]he most important historical fact [is] how the States regulated abortion when the Fourteenth Amendment was adopted”); see also ante, at 5, 16, and n. 24, 23, 25, 28. If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist. 

As an initial matter, note a mistake in the just preceding sentence. We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788— did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship. 

Casey itself understood this point, as will become clear. See infra, at 23–24. It recollected with dismay a decision this Court issued just five years after the Fourteenth Amendment’s ratification, approving a State’s decision to deny a law license to a woman and suggesting as well that a woman had no legal status apart from her husband. See 505 U. S., at 896–897 (majority opinion) (citing Bradwell v. State, 16 Wall. 130 (1873)). “There was a time,” Casey explained, when the Constitution did not protect “men and women alike.” 505 U. S., at 896. But times had changed. A woman’s place in society had changed, and constitutional law had changed along with it. The relegation of women to inferior status in either the public sphere or the family was “no longer consistent with our understanding” of the Constitution. Id., at 897. Now, “[t]he Constitution protects all individuals, male or female,” from “the abuse of governmental power” or “unjustified state interference.” Id., at 896, 898. 

So how is it that, as Casey said, our Constitution, read now, grants rights to women, though it did not in 1868? How is it that our Constitution subjects discrimination against them to heightened judicial scrutiny? How is it that our Constitution, through the Fourteenth Amendment’s liberty clause, guarantees access to contraception (also not legally protected in 1868) so that women can decide for them- selves whether and when to bear a child? How is it that until today, that same constitutional clause protected a woman’s right, in the event contraception failed, to end a pregnancy in its earlier stages? 

The answer is that this Court has rejected the majority’s pinched view of how to read our Constitution. “The Founders,” we recently wrote, “knew they were writing a document designed to apply to ever-changing circumstances over centuries.” NLRB v. Noel Canning, 573 U. S. 513, 533–534 (2014). Or in the words of the great Chief Justice John Marshall, our Constitution is “intended to endure for ages to come,” and must adapt itself to a future “seen dimly,” if at all. McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). That is indeed why our Constitution is written as it is. The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions. 

Nowhere has that approach been more prevalent than in construing the majestic but open-ended words of the Fourteenth Amendment—the guarantees of “liberty” and “equality” for all. And nowhere has that approach produced prouder moments, for this country and the Court. Consider an example Obergefell used a few years ago. The Court there confronted a claim, based on Washington v. Glucksberg, 521 U. S. 702 (1997), that the Fourteenth Amendment “must be defined in a most circumscribed manner, with central reference to specific historical practices”—exactly the view today’s majority follows. Obergefell, 576 U. S., at 671. And the Court specifically rejected that view.4 In doing so, the Court reflected on what the proposed, historically circumscribed approach would have meant for interracial marriage. See ibid. The Fourteenth Amendment’s ratifiers did not think it gave black and white people a right to marry each other. To the contrary, contemporaneous practice deemed that act quite as unprotected as abortion. Yet the Court in Loving v. Virginia, 388 U. S. 1 (1967), read the Fourteenth Amendment to embrace the Lovings’ union. If, Obergefell explained, “rights were defined by who exercised them in the past, then received practices could serve as their own continued justification”—even when they conflict with “liberty” and “equality” as later and more broadly un- derstood. 576 U. S., at 671. The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply. 

That does not mean anything goes. The majority wishes people to think there are but two alternatives: (1) accept the original applications of the Fourteenth Amendment and no others, or (2) surrender to judges’ “own ardent views,” un-grounded in law, about the “liberty that Americans should enjoy.” Ante, at 14. At least, that idea is what the majority sometimes tries to convey. At other times, the majority (or, rather, most of it) tries to assure the public that it has no designs on rights (for example, to contraception) that arose only in the back half of the 20th century—in other words, that it is happy to pick and choose, in accord with individual preferences. See ante, at 32, 66, 71–72; ante, at 10 (KAVANAUGH, J., concurring); but see ante, at 3 (THOMAS, J., concurring). But that is a matter we discuss later. See infra, at 24–29. For now, our point is different: It is that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. The second Justice Harlan discussed how to strike the right balance when he explained why he would have invalidated a State’s ban on contraceptive use. Judges, he said, are not “free to roam where unguided speculation might take them.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (dissenting opinion). Yet they also must recognize that the constitutional “tradition” of this country is not captured whole at a single moment. Ibid. Rather, its meaning gains content from the long sweep of our history and from successive judicial precedents—each looking to the last and each seeking to apply the Constitution’s most fundamental commitments to new conditions. That is why Americans, to go back to Obergefell’s example, have a right to marry across racial lines. And it is why, to go back to Justice Harlan’s case, Americans have a right to use contraceptives so they can choose for themselves whether to have children. 

All that is what Casey understood. Casey explicitly re- jected the present majority’s method. “[T]he specific practices of States at the time of the adoption of the Fourteenth Amendment,” Casey stated, do not “mark[ ] the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” 505 U. S., at 848. To hold otherwise—as the majority does today—“would be inconsistent with our law.” Id., at 847. Why? Because the Court has “vindicated [the] principle” over and over that (no matter the sentiment in 1868) “there is a realm of personal liberty which the government may not enter”—especially relating to “bodily integrity” and “family life.” Id., at 847, 849, 851. Casey described in detail the Court’s contraception cases. See id., at 848–849, 851–853. It noted decisions protecting the right to marry, including to someone of another race. See id., at 847–848 (“[I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference”). In reviewing decades and decades of constitutional law, Casey could draw but one conclusion: Whatever was true in 1868, “[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.” Id., at 849. 

And that conclusion still held good, until the Court’s intervention here. It was settled at the time of Roe, settled at the time of Casey, and settled yesterday that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decisionmaking. A multitude of decisions supporting that principle led to Roe’s recognition and Casey’s reaffirmation of the right to choose; and Roe and Casey in turn supported additional protections for intimate and familial relations. The majority has embarrassingly little to say about those precedents. It (literally) rattles them off in a single paragraph; and it implies that they have nothing to do with each other, or with the right to terminate an early pregnancy. See ante, at 31–32 (asserting that recognizing a relationship among them, as addressing aspects of personal autonomy, would ineluctably “license fundamental rights” to illegal “drug use [and] prostitution”). But that is flat wrong. The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination. 

And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” posi- tion, as JUSTICE KAVANAUGH tries to argue. Ante, at 2–3, 5, 7, 11–12 (concurring opinion). His idea is that neutrality lies in giving the abortion issue to the States, where some can go one way and some another. But would he say that the Court is being “scrupulously neutral” if it allowed New York and California to ban all the guns they want? Ante, at 3. If the Court allowed some States to use unanimous juries and others not? If the Court told the States: Decide for yourselves whether to put restrictions on church attend- ance? We could go on—and in fact we will. Suppose JUSTICE KAVANAUGH were to say (in line with the majority opinion) that the rights we just listed are more textually or historically grounded than the right to choose. What, then, of the right to contraception or same-sex marriage? Would it be “scrupulously neutral” for the Court to eliminate those rights too? The point of all these examples is that when it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers. And to apply that point to the case here: When the Court decimates a right women have held for 50 years, the Court is not being “scrupulously neutral.” It is instead taking sides: against women who wish to exercise the right, and for States (like Mississippi) that want to bar them from doing so. JUSTICE KAVANAUGH cannot obscure that point by ap- propriating the rhetoric of even-handedness. His position just is what it is: A brook-no-compromise refusal to recognize a woman’s right to choose, from the first day of a pregnancy. And that position, as we will now show, cannot be squared with this Court’s longstanding view that women indeed have rights (whatever the state of the world in 1868) to make the most personal and consequential decisions about their bodies and their lives. 

Consider first, then, the line of this Court’s cases protecting “bodily integrity.” Casey, 505 U. S., at 849. “No right,” in this Court’s time-honored view, “is held more sacred, or is more carefully guarded,” than “the right of every individual to the possession and control of his own person.” Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891); see Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 269 (1990) (Every adult “has a right to determine what shall be done with his own body”). Or to put it more simply: Everyone, including women, owns their own bodies. So the Court has restricted the power of government to interfere with a person’s medical decisions or compel her to undergo medical procedures or treatments. See, e.g., Winston v. Lee, 470 U. S. 753, 766–767 (1985) (forced surgery); Rochin v. California, 342 U. S. 165, 166, 173–174 (1952) (forced stomach pumping); Washington v. Harper, 494 U. S. 210, 229, 236 (1990) (forced administration of antipsychotic drugs). 

Casey recognized the “doctrinal affinity” between those precedents and Roe. 505 U. S., at 857. And that doctrinal affinity is born of a factual likeness. There are few greater incursions on a body than forcing a woman to complete a pregnancy and give birth. For every woman, those experiences involve all manner of physical changes, medical treatments (including the possibility of a cesarean section), and medical risk. Just as one example, an American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion. See Whole Woman’s Health v. Hellerstedt, 579 U. S. 582, 618 (2016). That women happily undergo those burdens and hazards of their own accord does not lessen how far a State impinges on a woman’s body when it compels her to bring a pregnancy to term. And for some women, as Roe recognized, abortions are medically necessary to prevent harm. See 410 U. S., at 153. The majority does not say—which is itself ominous—whether a State may prevent a woman from obtaining an abortion when she and her doctor have determined it is a needed medical treatment. 

So too, Roe and Casey fit neatly into a long line of decisions protecting from government intrusion a wealth of private choices about family matters, child rearing, intimate relationships, and procreation. See Casey, 505 U. S., at 851, 857; Roe, 410 U. S., at 152–153; see also ante, at 31–32 (list- ing the myriad decisions of this kind that Casey relied on). Those cases safeguard particular choices about whom to marry; whom to have sex with; what family members to live with; how to raise children—and crucially, whether and when to have children. In varied cases, the Court explained that those choices—“the most intimate and personal” a per- son can make—reflect fundamental aspects of personal identity; they define the very “attributes of personhood.” Casey, 505 U. S., at 851. And they inevitably shape the nature and future course of a person’s life (and often the lives of those closest to her). So, the Court held, those choices belong to the individual, and not the government. That is the essence of what liberty requires. 

And liberty may require it, this Court has repeatedly said, even when those living in 1868 would not have recognized the claim—because they would not have seen the person making it as a full-fledged member of the community. Throughout our history, the sphere of protected liberty has expanded, bringing in individuals formerly excluded. In that way, the constitutional values of liberty and equality go hand in hand; they do not inhabit the hermetically sealed containers the majority portrays. Compare Obergefell, 576 U. S., at 672–675, with ante, at 10–11. So before Roe and Casey, the Court expanded in successive cases those who could claim the right to marry—though their relationships would have been outside the law’s protection in the mid- 19th century. See, e.g., Loving, 388 U. S. 1 (interracial couples); Turner v. Safley, 482 U. S. 78 (1987) (prisoners); see also, e.g., Stanley v. Illinois, 405 U. S. 645, 651–652 (1972) (offering constitutional protection to untraditional “family unit[s]”). And after Roe and Casey, of course, the Court continued in that vein. With a critical stop to hold that the Fourteenth Amendment protected same-sex intimacy, the Court resolved that the Amendment also conferred on same-sex couples the right to marry. See Lawrence, 539 U. S. 558; Obergefell, 576 U. S. 644. In considering that question, the Court held, “[h]istory and tradition,” especially as reflected in the course of our precedent, “guide and discipline [the] inquiry.” Id., at 664. But the sentiments of 1868 alone do not and cannot “rule the present.” Ibid. 

Casey similarly recognized the need to extend the constitutional sphere of liberty to a previously excluded group. The Court then understood, as the majority today does not, that the men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens. See supra, at 15. A woman then, Casey wrote, “had no legal existence separate from her husband.” 505 U. S., at 897. Women were seen only “as the center of home and family life,” without “full and independent legal status under the Constitution.” Ibid. But that could not be true any longer: The State could not now insist on the historically dominant “vision of the woman’s role.” Id., at 852. And equal citizenship, Casey realized, was inescapably connected to reproductive rights. “The ability of women to participate equally” in the “life of the Nation”—in all its eco- nomic, social, political, and legal aspects—“has been facilitated by their ability to control their reproductive lives.” Id., at 856. Without the ability to decide whether and when to have children, women could not—in the way men took for granted—determine how they would live their lives, and how they would contribute to the society around them. 

… Faced with all these connections between Roe/Casey and judicial decisions recognizing other constitutional rights, the majority tells everyone not to worry. It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.) Today’s decision, the majority first says, “does not undermine” the decisions cited by Roe and Casey—the ones involving “marriage, procreation, contraception, [and] family relationships”—“in any way.” Ante, at 32; Casey, 505 U. S., at 851. Note that this first assurance does not extend to rights recognized after Roe and Casey, and partly based on them—in particular, rights to same-sex intimacy and marriage. See supra, at 23.6 On its later tries, though, the majority includes those too: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66; see ante, at 71–72. That right is unique, the majority asserts, “because [abortion] terminates life or potential life.” Ante, at 66 (internal quotation marks omitted); see ante, at 32, 71–72. So the majority depicts today’s decision as “a restricted railroad ticket, good for this day and train only.” Smith v. Allwright, 321 U. S. 649, 669 (1944) (Roberts, J., dissenting). Should the audience for these too-much-repeated protestations be duly satisfied? We think not. … 

According to the majority, no liberty interest is present— because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved. And if that is true, it is im- possible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten—does not even “undermine”—any number of other constitutional rights. Ante, at 32. 

Nor does it even help just to take the majority at its word. Assume the majority is sincere in saying, for whatever rea- son, that it will go so far and no further. Scout’s honor. Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads, rather than tolerating hard-to- explain lines. Rights can expand in that way. Dissenting in Lawrence, Justice Scalia explained why he took no comfort in the Court’s statement that a decision recognizing the right to same-sex intimacy did “not involve” same-sex marriage. 539 U. S., at 604. That could be true, he wrote, “only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.” Id., at 605. Score one for the dissent, as a matter of prophecy. And logic and principle are not one-way ratchets. Rights can contract in the same way and for the same reason—because what- ever today’s majority might say, one thing really does lead to another. We fervently hope that does not happen be- cause of today’s decision. We hope that we will not join Jus- tice Scalia in the book of prophets. But we cannot under- stand how anyone can be confident that today’s opinion will be the last of its kind. 

Consider, as our last word on this issue, contraception. The Constitution, of course, does not mention that word. And there is no historical right to contraception, of the kind the majority insists on. To the contrary, the American legal landscape in the decades after the Civil War was littered with bans on the sale of contraceptive devices. So again, there seem to be two choices. See supra, at 5, 26–27. If the majority is serious about its historical approach, then Griswold and its progeny are in the line of fire too. Or if it is not serious, then . . . what is the basis of today’s decision? If we had to guess, we suspect the prospects of this Court approving bans on contraception are low. But once again, the future significance of today’s opinion will be decided in the future. At the least, today’s opinion will fuel the fight to get contraception, and any other issues with a moral dimension, out of the Fourteenth Amendment and into state legislatures. Anyway, today’s decision, taken on its own, is catastrophic enough. As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it. Our law in this constitutional sphere, as in most, has for decades upon decades proceeded differently. It has considered fundamental constitutional principles, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents. It is disciplined but not static. It relies on accumulated judgments, not just the sentiments of one long-ago generation of men (who themselves believed, and drafted the Constitution to reflect, that the world progresses). And by doing so, it includes those excluded from that olden conversation, rather than perpetuating its bounds. 

As a matter of constitutional substance, the majority’s opinion has all the flaws its method would suggest. Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today. Because those laws prevented women from charting the course of their own lives, the majority says States can do the same again. Because in 1868, the government could tell a pregnant woman—even in the first days of her pregnancy—that she could do nothing but bear a child, it can once more impose that command. Today’s decision strips women of agency over what even the majority agrees is a contested and contestable moral issue. It forces her to carry out the State’s will, whatever the circumstances and what- ever the harm it will wreak on her and her family. In the Fourteenth Amendment’s terms, it takes away her liberty. Even before we get to stare decisis, we dissent.

Autonomy and Genomics

'Reevaluating the “right not to know” in genomics research' by Nina B.Gold and Robert C.Green in (2022) 24(2) Genetics in Medicine 289-292 comments 

In clinical exome or genome sequencing, the American College of Medical Genetics and Genomics (ACMG) has recommended that a minimum set of secondary findings for actionable conditions should always be offered to patients. In the research domain, millions of individuals have been sequenced, but the return of actionable genomic results is rarely offered. In most research projects that do offer the return of genomic information, participants are asked at the outset whether they wish to be contacted with genomic results of medical importance in a consent process that often stresses potential harms, such as privacy threats or psychological distress, over potential benefits. If participants answer “no,” they are rarely asked again or offered the opportunity to change their response. Participants who decline the return of genomic information about themselves in research are said to be asserting their autonomy around the “right not to know.” The recent report by Schupmann et al challenges this paradigm by showing that participants’ decisions about receiving unanticipated genomic information in research may change when they are given more information and an opportunity to reconsider. These findings prompt us to ask if we can expand autonomy by offering participants opportunities to change their choices, given new experiences in their lives or advances in medical science. Furthermore, should we more fundamentally reappraise the “right not to know” in research by routinely alerting participants to a specific finding within their own DNA and only then allowing them to decide how to proceed? 

Although there is no accepted standard for the variants or genes to be returned in genomic research studies, many investigators return pathogenic and likely pathogenic variants in the genes on the ACMG list of secondary findings described earlier. Even within this limited list, the type of disorder, penetrance and expressivity, and available treatments and surveillance protocols can vary widely. Some research participants who decline genetic information may not fully understand how such information might impact their lives. A man with syncopal episodes might not appreciate that a variant associated with arrhythmogenic right ventricular cardiomyopathy could provide an explanation for his symptoms and a course of action to address them. A woman with a family history of breast cancer might not recognize the scope of surveillance protocols available to BRCA1-positive individuals, wrongly assuming that her only option in the case of a positive finding would be mastectomy. In these cases, prioritizing the right not to know with a single global question about returning genomic findings could preclude the disclosure of life-saving information. We rarely ask what happens to people who could have learned about medically actionable genomic information but declined results. 

The report by Schupmann et al begins to address this question. The authors contacted more than 150 participants in a genomic research study who initially declined genetic results (“refusers”) and a cohort of individuals who had accepted them (acceptors). The researchers then provided participants with an educational intervention and asked if they would reconsider their original decision about receiving genetic findings. Importantly, roughly half of participants who had originally declined the return of results changed their decision (“reversible refusers”). Three-quarters of the reversible refusers believed that they had initially chosen to receive genetic results. The proportion of “persistent refusers,” those who were steadfast in their decision not to learn secondary genetic findings, was found to be less than 1% of the initial study population. The finding that a high percentage of refusers reconsidered their decision (and incorrectly recalled their initial choice) requires us to rethink how we ask about the return of genetic information in research. Should we take no for an answer, or at least for a permanent answer, when research participants initially decline actionable genetic results? 

In considering this issue, we address 3 separate but interrelated questions.

Those questions are 

•  Should Actionable Genetic Results Routinely Be Offered for Return in Genomic Research Studies?  
• Should Research Participants Be Offered Genomic Information More Than Once?
•  Can Autonomy Be Enriched by an Incremental Disclosure and Choice Process?