Re-thinking privacy in Australia in the wake of Dobbs v Jackson Women’s Health Organization

Abstract

ABSTRACT In June 2022, the Supreme Court of the United States overturned its decision in Roe v Wade, 410 US 113 (1973), which had established a right to abortion founded on an implied constitutional right to privacy. The decision in Dobbs v Jackson Women’s Health Organization, 597 US (2022) has sparked fervent debate about women’s reproductive rights and access to healthcare in the United States. This article presents a decisional privacy perspective on Dobbs and considers its implications for privacy rights in Australia. The concept of decisional privacy protects an individual’s ability to make decisions which contribute to defining their identity, free from the unjustifiable interference of other individuals or the state. Drawing on examples of the violation of rights of LGBTQIA+ individuals, I argue that threats to decisional privacy are alive and well in Australia; yet a failure to conceptualise and articulate them as such undermines the value of privacy both to individuals and to society. The Dobbs decision offers a prime opportunity to re-think the meaning and value of privacy in Australian law and society, not only to enrich privacy law scholarship and jurisprudence but also to enable privacy to be more robustly protected as a human right.