A Supreme Court ruling that would undermine Women’s Rights and Democracy in backsliding US
The US Supreme Court leaked a draft majority judgment on 3 May 2022, authored by Justice Samuel Alito, describing the Roe v Wade decision of 1973 as ‘egregiously wrong’. If the draft is real and is finalized in this form, it will end almost half a century of the constitutional protection of the right to abortion in the US. The judgment sets US democracy back in several ways. First, it reveals just how politicized the US justice system is. The Mississippi case that is at the heart of this ruling was taken to the Supreme Court specifically because of its new conservative majority. In fact, Justice Sonia Sotomayor asked if the Court would even survive the ‘stench that this creates in the public perception that the Constitution and its reading are just political acts’. Indeed, there were ardent calls for much-admired Justices Ruth Bader Ginsburg and Stephen Breyer to strategically retire just so that a Democratic president could fill those vacancies. Former President Trump was explicit in his plan to appoint judges specifically to overturn Roe. Second, the decision entrenches political polarization at a time when the country is arguably more divided than it has ever been. Already, analysts predict that the ruling would prompt around 20 states to immediately further restrict or ban abortion entirely. On the other side of the spectrum, states like Connecticut, Colorado and New Jersey are urgently passing legislation to protect abortion access. As of mid-April, 33 abortion restrictions had been enacted in 9 states. Third, it casts serious aspersions on the US commitment to gender equality and democratic rights. Already, the US fell below the North American average in terms of gender equality (Figure 1), and is the only industrialized democracy not to have ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Now, Mexican activists are planning to offer help and services to their neighbours in the north, setting up ways to shuttle Americans across the border to receive treatment and to send pills to those in need. Mexico decriminalized abortion in 2021. In Canada, the Trudeau Government pledged to substantially increase funding to fight attacks on women’s health, dedicating half of CAD 1.4 billion to sexual and reproductive needs. Figure 1. Gender Equality in North America Fourth and most importantly, the judgment could eviscerate women’s agency in the most intimate way. And it would do so at a time when the impact of a decline in women’s participation in society is crystal clear. The ruling, made by a Bench on which there are twice as many men as women, would take away rights from those who were at the frontlines of the pandemic and would significantly threaten their safety. As a significant amount of research shows, such restrictions have disproportionate impacts on women from minority communities and economically disadvantaged groups. These findings stand in stark contrast to Alito’s attempt to justify the decision by claiming that abortion rights support racist goals. Of course, the leak could be strategic, paving the way for a judgment that does not completely overturn Roe but imposes lesser restrictions. Either way, it’s a step backwards for an already backsliding US democracy. The Gilded Age may indeed be making a return, in more ways than one.
Sri Lanka’s Democracy: Awakening from a deep slumber?
In the wake of the worst economic crisis in its post-independence history, over the past two months thousands of Sri Lankans have been taking to the streets to peacefully demand the resignation of their government. After protests reached President Gotabaya Rajapaksa’s residence, the government temporarily declared a State of Emergency, imposed curfews and blocked social media. On 19 April, the first death was recorded when police opened fire on protesters. Yet, violating the right of Sri Lankans to their freedom of expression and assembly has only fuelled the peoples’ grievances further. On 12 April 2022, two decades of a brewing debt crisis resulted in the Sri Lankan government defaulting on USD 51 billion of foreign debt. In the coming months and years, 22 million Sri Lankans will likely suffer from increased living costs, taxes, and borrowing rates as a result. These difficulties are compounded by frequent electricity outages and growing shortages of fuel, medicines, staple foods, and other essentials in what was once known as the “Pearl of the Indian Ocean.” As the going gets tougher for all Sri Lankans, much of the country’s population is uniting against a seemingly common “enemy”—their very own government. Growing public pressure by ordinary Sri Lankans and civil society on their elected leaders indicates that Sri Lanka’s faltering democracy may be at a turning point. Propelled by economic hardship, Sri Lankans are finally waking up from a deep slumber to voice the need for urgent and far-reaching system reform. While many past protests have been partisan in nature, we are now witnessing Sri Lankans of different ethnic, religious and socio-economic backgrounds overcoming those divisions to pave a path for radical change. The unity is especially striking in a country that faced 26 years of civil war. In response, the entire Cabinet (including the President’s nephew) resigned, but President Gotabaya Rajapaksa and his brother, Prime Minister Mahinda Rajapaksa, refuse to cede power. The Rajapaksas are criticized for exacerbating a culture of corruption, nepotism, and dishonesty in Sri Lanka’s political and business communities. Their practice of awarding project contracts to their henchmen and appointing unqualified friends and family into senior posts has led to incompetent and unchecked decision-making. The absence of good governance has also contributed to a continuous brain drain from the island. Soaring inflation, rapid currency devaluation coupled with decades of debt accumulation and economic mismanagement—including ill-conceived infrastructure and vanity projects that generated no or negligible returns, baseless tax cuts and arbitrary policies to force organic farming—are just a few of many decisions that now threaten what was once one of South Asia’s fastest-growing economies. International IDEA’s 2021 GSoD report identified Sri Lanka as being at high risk of “democratic backsliding.” GSoD data show that Sri Lanka has suffered decreases in all of the sub-attributes of Check on Government as well as decreases in Absence of Corruption over the past several years. Declines in these attributes signify serious failures of the Rajapaksa government to uphold the rule of law in the delivery of services to its people. Declines in Selected Subattributes, 2015-2020 Protest momentum is being driven by Sri Lanka’s youth, business owners, artists, activists, and entrepreneurs. C. Perera, a Sri Lankan national who advises the tourism investment sector notes that “Sri Lankan university students and labour unions regularly stage protests; but now, the elite, upper classes and business community are taking to the streets themselves, for the first time in our history.” Perera adds, “Younger generations are showing more courage and confidence, unafraid to voice opinions and request for a much-needed system overhaul that older generations have failed to address. Responsible thinking and years of pent-up frustration drives the current momentum for positive, values-based change. Sri Lankan people are rightfully demanding for transparent and accountable leadership which simply has not existed for decades across government and big business.” Photo by C. Perera The country began talks with the International Monetary Fund (IMF) on 18 April with the aim of expediting financing to Sri Lanka, but addressing the fragmented political system will take time. Reforms which have been recommended include abolishing the executive presidency, reinforcing and protecting an independent judiciary, increasing accountability among the political classes i.e., declaring their assets and auditing expenditures, enforcing transparent and professional tender and contract processes; and filling key economic decision-making roles with competent and experienced professionals to reinstall confidence among the Sri Lankan public and international creditors. For many, there is hope that this crisis—echoed by people’s protests- will serve as a wakeup call and turning point toward much needed political, economic and social reform. Ultimately, an uprising of this scale and diversity will be hard for the rulers of Sri Lanka to ignore. Disclaimer: Opinions expressed in this commentary are those of the author and do not necessarily represent the institutional position of International IDEA, its Board of Advisers or its Council of Member States.
The Day after the Digital Service Act
The European Union has approved landmark legislation, known as the Digital Service Act (DSA), that seeks to transform social media into a safer space, tame disinformation and illegal content, increase transparency and create monitoring and enforceability mechanisms. It is not only an important milestone for the European Union; it will likely serve as a global benchmark on how to regulate social media content. The DSA is not alone, and lives alongside other EU legislation - some approved, some being discussed - on political ads, digital markets and Artificial Intelligence. The question remains, though: Is this enough to protect democracy from digital threats? The short answer is simple: no. The target of the Digital Service Act is big social media companies. It makes them liable for the content they host insofar they know it is illegal and imposes requirements on how to control content. However, social media companies are not the only actors trying to manipulate public opinion online, and it could be argued that they are not even the most important ones. A key next step in the legislative battle is a law that confronts the origins of the threats to democracy: political parties and PR companies, and to the enabler: money. Political parties and other interest groups can mount successful online operations because they can pay for them without breaking any laws. Also, the public remains largely in the dark about those expenditures. A possible solution could be to update political finance regulation to tackle the issue. For example, all political actors should have to disclose detailed expenditures for online activities. Yet, legislation to control the flow of money wouldn’t be sufficient. EU and Member States alike should seek to promote actions that deter engagement in disinformation activities. These can range from electoral codes of conduct, such as the Dutch rules that require a rejection of foreign money for election ads, to broad agreements that open their data. As key actors in democracy, political parties should be open to impartial digital audits that allow oversight institutions to find instances of wrong-doing in their behaviour online. Opening up their servers to oversight agencies could also be established as a precondition to access public funding. To carry out these audits, we also need increased capacity of oversight agencies. Political campaigns are increasingly complex, and every political party relies on private marketing and public affairs companies to run their campaigns. This isn’t the problem. The issue is that these companies are a black box. While a political party might not be allowed to engage a troll farm, private PR companies are not subject to the same level of controls; they should be placed under strict scrutiny. All such companies should be included in a publicly accessible registry that shows all contracts with political parties and interest groups. The EU or member states can also create a pre-approval authorisation mechanism to work on political campaigns for private companies, under the condition they open their servers to digital audits and provide data to regulators. The day after the DSA has arrived, democracy is far from being shielded from digital threats. What the DSA’s long negotiation process has shown is that online regulation is possible and effective, even if imperfect. That same spirit should be carried forward to protect democracy online.