Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality
| Author | Caroline Henckels,Tania Penovic,Ronli Sifris |
| DOI | 10.1177/0067205X211039890 |
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
Article
Federal Law Review
2021, Vol. 49(4) 554–568
© The Author(s) 2021
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DOI: 10.1177/0067205X211039890
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Dignity as a Constitutional Value:
Abortion, Political Communication
and Proportionality
Caroline Henckels*, Ronli Sifris** and Tania Penovic***
Abstract
This article examines the High Court of Australia’s treatment of the concept of dignity as both a value
animating the implied freedom of political communication and as a legitimate reason to limit the exercise
of that freedom. It does so through the lens of Clubb v Edwards, Preston v Avery, where the Court found that
laws establishing safe access zones around abortion clinics were compatible with the implied freedom. The
use of dignity as a prism through which to view the interests at stake in both abortion and speech cases is a
familiar feature of developments abroad, and the Court has laid the foundations for recognition of dignity
as one of the axiological bases of the implied freedominamannerthatgenerally emphasises individual
autonomy over other conceptions of dignity that might be described as operating as a constraint on
behaviour to protect other interests. Yet, while the Court has used dignityas the common measure with
which to commensurate competing claims, it has yet to convincingly address concerns regarding in-
commensurability that attend the balancing stage of proportionality review, not to mention the potential
objection that its reliance on dignity is not properly grounded in the text and structure of the Constitution.
In light of these issues, the role of dignity ought to be tethered to its central role in facilitating political
participation so as to more clearly link the concept to the text and structure of the Constitution, and to
identify what is at stake when women’s ability to access reproductive health care is impaired or denied.
Received 22 October 2020
I Introduction
In this article, we examine the High Court of Australia’s treatment of the concept of dignity as both a
value animating the implied freedom of political communication and as a legitimate reason to limit
*Associate Professor, Faculty of Law and Member, Castan Centre for Human Rights Law, Monash University, Clayton, VIC,
Australia. Contact: caroline.henckels@monash.edu
**Senior Lecturer, Faculty of Law and Deputy Director, Castan Centre for Human Rights Law, Monash University, Clayton,
VIC, Australia
***Senior Lecturer, Faculty of Law and Member, Castan Centre for Human Rights Law, Monash University, Clayton, VIC,
Australia.
The authors prepared submissions for the Castan Centre for Human Rights Law, which appeared as amicus curiae in Clubb v
Edwards. We thank Heli Askola, Liz Campbell, Julie Debeljak, Patrick Emerton, Kathryn James and Maria O’Sullivan for
helpful discussions and Antonia Glover for excellent research assistance.
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