[6.] Rights.

 

The concept of natural rights as played an important role in moral philosophy since at least the time of Thomas Hobbes, whose account of the origin of law in a social contract relies heavily on the notion.

 

But not all philosophers have accepted the idea that people have natural rights without skepticism. Utilitarian philosopher Jeremy Bentham famously described the idea of natural rights as “nonsense,” and that of “natural and imprescriptable rights” (natural rights that morality prohibits us from violating, no matter what the circumstances) as “nonsense upon stilts.” This reflects the traditional tension within normative ethics between considerations of utility (making people happier or better off) and respect for personal rights.

 

Bentham did, however, have respect for legal rights, rights bestowed on individuals within the context of a given legal system.

 

There is, then, a difference between the concept of a moral right and that of a legal right. For instance, individuals can have a moral right to do something but not have a legal right to do it, and vice versa.

 

 

[6.1.] Gerald MacCallum’s Analysis of the Concept of a Right.[1]

 

Gerald MacCallum (1925-1987, professor of philosophy at the University of Wiscomsin—Madison) put forward the following triadic analysis of the concept of a right.

 

For there to be a right is for (1) an agent to have (2) a certain sort of demand for (3) some object (the thing to which the agent has the right).

 

1. An agent of rights: the being who “possesses” the right.

·         Presumably, all human beings have human or moral rights, although this was not always widely accepted in the Western world, e.g., slaves and women were denied rights that other human beings were acknowledged to have).

·         An important moral question is whether there are other beings who have rights, e.g. non-human animals and pre-birth humans?

 

2. Demands: a right can constitute one or the other of two different sorts of demand:

·         rights-as-privileges: a demand for noninterference from others (closely related to negative liberty)

·         rights-as-claims: a demand for specific action from others.

 

Simon uses the Americans with Disabilities Act of 1990 (ADA) to illustrate the difference between these two types of demand.

 

The ADA outlaws discrimination against people with disabilities, where “disability” is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” The law prohibits discrimination with regard to employment and public accommodations, among other things.

 

Regarding public accommodations:

 

Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements. Additionally, public accommodations must remove barriers in existing buildings where it is easy to do so without much difficulty or expense, given the public accommodation's resources. [2]

 

According to the ADA, handicapped individuals have a legal right that is more than a mere privilege; it is actually a claim against other people, e.g., against the owners of businesses, to ensure that the entrances to their businesses are accessible by people in wheelchairs (perhaps by adding ramps). If the legal right afforded by the ADA were a mere privilege, then business owners would be prohibited from keeping handicapped people from entering their businesses, but they would not be required to alter their entrances to enable wheelchair-bound people to enter.

 

Simon raises the question whether the moral rights handicapped persons have are claims (e.g., against business owners to provide them with ramps) or merely privileges (e.g. to enter a store, if in fact they are able to do so).

 

 

[6.2.] Legal vs. Moral Rights: Roe v. Wade.

 

Some believe that states that outlawed abortion before the Supreme Court’s decision in the case of Roe v. Wade (1973) were denying their female citizens a legal right to abortion when those citizens had a moral right to abort their pregnancies. Others believe that that decision gave women a legal right to do what they do not have a moral right to do.

 

·         Norma McCorvey (at the time known as Jane Roe to protect her identity) brought a class-action lawsuit against Henry Wade, the district attorney of Dallas County, Texas, challenging the constitutionality of Texas’ abortion laws.[3] Those laws prohibited abortion except in order to save the life of the mother. Many other states had similar statutes at the time.

 

·         The majority opinion in the Supreme Court’s decision, written by Justice Harry Blackmun, limited the states’ ability to restrict abortion to the point of viability:

 

                With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion … during that period, except when it is necessary to preserve the life or health of the mother.

                Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here. [4]

 

·         The majority held that laws like Texas’, which prohibit abortion at every stage of pregnancy except in order to save the life of the mother, violate the due process clause of the 14^th Amendment:

 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[5]

 

As we have seen before, “due process” means “the legal procedures that have been established as a means of protecting individuals’ rights.”[6] This amendment was ratified in 1868. Before this point, the individual rights enumerated in the Bill of Rights were protected only against federal intrusion, and thus citizens were still susceptible to numerous infringements by state and local governments. In the 20th Century, the Supreme Court began to construe the due process clause as prohibiting states from infringing against certain specific rights (especially freedom of the press, speech, assembly and religion) enumerated in the Bill of Rights.

 

·         In the Roe v. Wade decision, Blackmun described the due process clause as protecting “against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.” (emphasis added)[7]

 

·         In making this argument, Blackmun referred a number of times to the Supreme Court’s decision in Griswold v. Connecticut (1965). At that time, Connecticut had an anti-contraception statute at the time, making it illegal to prevent conception with a drug or device. Griswold was the executive director of the Planned Parenthood League of Connecticut. He, along with the organization’s medical director, were convicted as accessories to the crime of using a drug or device to prevent conception. The Court found that such laws violate citizens’ constitutional right to privacy. Although there is no such right enumerated specifically in the Constitution, “the First Amendment has a penumbra where privacy is protected from governmental intrusion.”[8]

 

So the majority decision in Roe v. Wade, as well as the decision in Griswold v. Connecticut, interpreted the Constitution as implying a legal right to privacy.

 

Supporters of Roe may maintain that the Court’s decision in that case is tantamount to securing a legal right corresponding to a moral or human right female citizens already had.

 

Critics of Roe, on the other hand, might maintain that although women currently have legal rights to abort pregnancies, they have no moral right to do so, and might use this as an argument that the Court’s decision in Roe should be overturned.

 

 

Stopping point for Monday April 9. For next time, read pp.292-96.