New York's Take on Fundamental Rights

R. J. Snell
January 18, 2019
Reproduced with Permission
Culture of Life Foundation

In recent days, news outlets have reported on the likely passage of the Reproductive Health Act (RHA) in New York state. Among other changes, the RHA repeals the requirement for abortion to be performed by a licensed physician and expands access to third-trimester abortions. Additionally, the RHA would codify abortion as a "fundamental right."

Just what, precisely, is meant by a "fundamental right?"

A fundamental right is the source or ground of other rights, but the civil right to abortion was based on the right to privacy in Roe v. Wade, with privacy itself divined in "penumbras formed by emanations," as infamously articulated by Griswold v. Connecticut. Moreover, the RHA states that an "individual possesses a fundamental right of privacy & with respect to their personal reproductive decisions," which likewise seems to suggest that abortion is not itself fundamental, but rather derived from another more fundamental right.

Since by "fundamental" the RHA cannot mean "ground," perhaps it means "obvious" or "self-evident." But this cannot be the case since for most of the nation's history abortion was not considered anything like a self-evident right, and even now approximately half the citizenry has serious reservations about the status of abortion.

One suspects the RHA's appeal to "fundamental right" is rhetorical hand-waving, nothing more than "we really mean it; we really, really mean it." In fact, it seems that much contemporary rights-talk is just so much hand-waving, as evidenced by the ever-burgeoning list of supposed rights, including the right to "sexual pleasure" and the right to a "safe and full sex life."

As such claims proliferate, it is clear that the contemporary understanding of rights follows a "principle of indeterminacy and limitlessness," as Pierre Manent puts it, with the State operating as the creator and source of "the ever-expanding rights of the individual." This, of course, is a far cry from the understanding of the Declaration of Independence which viewed the task of a legitimate government to be securing - not creating - self-evident natural rights.

When it comes to rights, we would do well to go back to the basics, to take a refresher class on the fundamentals. In a previous essay, the Culture of Life Foundation explained how basic human goods, "those goods proper to humans which provide the basis of intelligible action" are knowable through reason. Those knowable goods provide a coherent and intelligible framework for morality, for, as explained in that essay, "it is unreasonable - immoral - to knowingly and willfully choose to violate or harm these goods without justification."

Now, as opposed to the rhetorical arm-waving and assertion found in the RHA, natural rights are correlates of basic human goods and the requirements of justice entailed by those goods. For instance, life is a basic human good, it is always unreasonable to choose directly against life, and thus there is an exceptionless duty never to take, directly and knowingly, another's life without justification; from this, the other has a right not to have his life taken directly, knowingly, and without justification. Rights relate to goods and the requirements of justice correlative to those goods.

Another example is knowledge. Knowledge is a good, as is acting reasonably based on reasonableness; it is thus a duty to tell the truth since lying acts counter to that good. Correspondingly, others have the right not to be lied to, not to be deceived, so that they can act freely and reasonably based on what they take to be the truth as learned from my report of the facts.

All too often, contemporary rights claims express no more than wishes or power ploys, what someone wants or what someone insists upon. But as human wish and will is without limit, and often without form, contemporary rights claims expand and conflict based on nothing more fundamental than whim. Insisting that a supposed right is "FUNDAMENTAL" does no more than writing that claim in all-caps or shouting it loudly, as if the intensity of a demand corresponds to the justice of that demand.

Yet again, the natural law and natural rights tradition provides a better way, one based in reason and intelligibility. Natural rights are what they are because the basic human goods are what they are, and those goods are knowable, principled, and genuinely fundamental.

New York's Reproductive Health Act incoherently insists that abortion is a fundamental right, but there is a better way to think about rights, although that better way takes some thought, study and a return to reason. But since, as we noted above, reasonableness is a human good, the legislators of New York state have a duty to pursue such study, even as the citizens of New York have a fundamental right to expect their legislators to be reasonable.

In its current state, nothing about the Reproductive Health Act meets those requirements, no matter how much its supporters repeat the endless refrain of the "fundamental right," knowingly and directly, to take human life.