As the climate crisis deepens, including signs that it is causing severe damage to the health and development of infants, litigation seeks to redefine constitutional freedoms to include both a right to a restored biodiverse environment and more equitable conditions of birth and development for every child.
Seemingly unrelated factors worsen the crisis: Our failure to abide by the terms of the Paris Agreement, policies that encourage women to have more children for economic reasons that disregard climatological impacts and social inequity, and prominent politicians like Donald Trump refusing to acknowledge the climate crisis as an imminent threat. Even the U.S. Supreme Court’s expected decision eliminating the right to abortion can be expected to increase fertility rates and, in turn, increase greenhouse gas emissions. The climate crisis demands collective action and solutions beyond day-to-day governance.
Enter the litigators. Public interest groups are in the process of preparing litigation on two theories of human rights and constitutional law that push for a fundamental view of human freedom as including a right to a restored biodiverse environment and more equitable conditions of birth and development for every child. Why? We submit that, for our systems to be fair, we can’t hobble children, at the start line, by subjecting them to poverty, economic inequity, and a dangerously polluted and degraded environment.
The first case—to be filed later this year—argues that the right to liberty, or to be let alone, implies a right to a restored and biodiverse environment. This right requires significant greenhouse gas reductions well beyond the Paris Agreement that would protect even pristine wilderness areas from anthropocentric impacts. Why? If freedom requires some form of consent to the influence others would have upon us, then it also requires a nonhuman background environment that is restored and natural—or biodiverse and eco-centric—to make such consent possible.
The second case involves an amicus brief that Fair Start Movement and Population Balance will file in support of the United States’ legal challenge to Texas Senate Bill 8, which created a private right of action against any person who assists a woman in obtaining an abortion. The amicus brief argues that S.B.8 is unconstitutional not only because it infringes on a woman’s bodily autonomy, but also because it violates the due process and equal protection rights of future generations. Amici will argue that, as a matter of equal protection, the state assumes responsibility for the well-being of future generations when it compels the birth of children.
The two cases focus on the fact that the power others have over us is both ecological and social and should orient from a particular eco-social baseline that has not been promoted before, a baseline in which people maintain a state of relative self-determination, both ecologically and socially, relative to others.
Similar questions about autonomy have arisen elsewhere. Critics have argued against recognition of an individual right to bear arms under the Second Amendment instead of as collective militias. But the Supreme Court recognized this individual right as guaranteeing persons the right to defend against the harmful influences of other people, to be autonomous, and to protect a life of self-determination. Perhaps this concept of autonomy could also drive an effective response to the climate crisis?
Making autonomy work may mean modifying what we think it means. While many believe autonomy means being able to do as one wishes, many prominent legal and political theorists reject that concept. Negative rights enable us to be let alone by others, but humans also have positive rights to welfare and equity that ensure a range of valuable choices in their daily lives and empower them relative to others. Liberty in an eco-social sense would mean being educated and prepared—especially in terms of critical thinking skills—to be part of a group of self-governing people.
Anthropocentric emissions affect each of us physically, largely without our individual consent or control. If we are born poor while others are born and raised with million-dollar trust funds, they will influence the society in which we live much more than we will. Restorative environmentalism and distribution of wealth among children can begin to solve those problems.
The fresh perspectives these cases bring would enable persons to truly consent to the power others would have over them, with power defined as any form of human influence. And their vision is supported by early Supreme Court case law involving matters like child labor and mandatory education laws, where the Court recognized that democracy would be protected, not dismantled, through families and the state working together to empower people equally.
If there are modern versions of human rights that encompass such freedom, the climate crisis and vast developmental inequity worsened by the battle over reproductive rights may trigger their recognition.
