"Every time we establish a new crime, we’re creating a new mechanism for the government to check up on you." ~ James A. Bruton III
Abortion Revisited: The Libertarian Case for Abortion
With the eruption of the Abortion War on STR, I thought I would throw my two philosophical cents into the discussion. While 'weebies' makes several overall good points, he could be mistaken for an advocate of the statist aggression of outlawing abortion, which I'm sure isn't his intention. However, in his attempt to refute the arguments of Rothbard and Block, he undermines the sanctity of property rights, particularly the inviolate right of self-ownership over one's own body, even when you are on another's property. If you dump that over the side, what of libertarianism is left?
Without the inviolability of individual sovereignty, libertarianism itself goes by the wayside. Individual sovereignty is a crucial moral weapon against the dominant ethos of consequence-based 'morality.' As I hope to demonstrate by the end of this column, without individual sovereignty, any aggression against the individual can be legitimized depending on the aims that the aggressors hope to achieve.
Traditional Arguments for Abortion
Before I begin, I would like to say that it is somewhat surprising that the traditional argument in favor of abortion has lasted for as long as it has. It is hard to deny that a being that is human outside the womb is not also human inside it, but it is easy to see that many abortion rights theorists believed that to concede that the fetus was in fact as human as you or I, that public support or at least acquiescence to 'abortion rights' would crumble. Recognizing the humanity of babies in the womb was likely widely believed to be a mortal threat to the entire abortion rights movement.
Pro-choice defenders had relied on this denial of the existence of the child, in thought if not in fact, for years, by denying that a human child was involved. Using terms like cellular matter, tissue mass, even the now ubiquitous fetus, pro-choice advocates labored to prevent any hint that a human life was involved, out of fear that this admission would strengthen the other side.
However, for years now, these old arguments have seemed to be met with increasing skepticism and ambivalence. I get the sense that it is likely that a large majority of Americans now believe that the old abortion argument (that in utero children aren't really human beings at all) is nonsensical (yet probably prefer not to think about the abortion issue at all).
I don't believe that the pro-choice movement, whether it's the confused mainstream or those of us in the ranks of libertarianism, can continue with the position that a fetus isn't a human being and hope to turn back the growing strength of the broad movement that exists for state control over the human body (from abortion, to drugs, to food supplements, to cigarettes, to alcohol, and extending to ideas and culture, etc.) that is based partly on what to many of the public appears to be the pro-life movement's sensible position.
The refusal to acknowledge the existence of anything capable of being injured or dying has greatly hurt the pro-choice movement and distracted it into the no-win position of arguing that the fetus isn't a human being at all.
But denying fetal humanity has a long history in the pro-choice movement. Each time pro-lifers have tried to legislate recognition of the embryo as a human being or person in one ruse or another, pro-choice advocates would respond by treating the fetus as a nonentity. As just one example, during the cloning debate, pro-choicer's would refer to embryos as "unfertilized blastocysts" or the "product of nuclear transplantation."
Criticisms of the Traditional Defense of Abortion
We might be at a crossroads where the very real possibility of the repeal of abortion rights is visible on the horizon. I believe that humanity's best defense is opposition to intervention by the state in any form, regardless of what that intervention claims to remedy, and consequently, I suggest that the pro-choice movement consider a change in strategy when it comes to the issue of abortion.
We should admit that a pregnancy involves a human child. Not a clump of cells, a tissue mass or some other euphemism used in all likelihood to mislead and coddle the consciences of women who are considering or have already undergone an abortion.
We should admit what the anti-choice movement believes in sincerely and with logical and empirical facts, but which many choose to ignore or have struggled for too long to deny, namely, the humanity of the fetus. Pregnant women are pregnant with an extremely young form of a human child, a life that if left uninterrupted by natural or artificial interventions, will develop into a complete human being.
Although, at this point it would be easy to adopt an argument that legitimizes abortion on the grounds that although the fetus is a human being, it is not a person, and therefore not being a person, it cannot have recognized rights in law as a human being. This would, however, be a dangerous step backward. If they are not inherently persons, are they property? What are they then?
It would be ironic if the 'women's movement' were to advance this argument to defend abortion. In the past, women were denied voting and property rights because they were not deemed to be persons. In Canada this was the case as women fought for the right to vote early in the last century. And for far too long, slavery was accepted because the enslaved were legal non-persons.
On top of this problem would be the problem of the arbitrariness of recognizing personhood in pre-adult children of any age. When should a child be considered a person? At adulthood? At puberty? Are we then to argue that until adulthood, children possess no inherent rights? The mainstream movement would be willing to make the mistake of denying the rights of a segment of society in order to maintain an issue they believe in, but we should hold ourselves to a higher standard.
Perhaps we might concede that children become persons when they start to walk or learn to talk? Or if not then, perhaps they are persons by virtue of being born? But are we going to argue for a standard that says children are persons the moment they leave the mother, but not two minutes before?
Compounding the absurdity of this argument, if embraced, would be the legitimization of the so-called "partial-birth" abortion procedure. That has done enough damage to the credibility of the pro-choice movement. By revolting and horrifying millions of soft abortion supporters, it handed the anti-abortion movement an extremely effective weapon.
This approach, if adopted, could also empower another argument often made by many in the anti-choice movement. The comparison of abortion to slavery could become a mainstream argument as the contemporary defenses of abortion all deny the natural and legal humanity of the fetus, something shared with the justifications for 20th Century slavery and in centuries prior with African and Native American slavery. The denial of natural and legal humanity is something we should have nothing to do with. Humanity has lived too long with slavery and the denial of considerations of mutual humanity and self-ownership rights.
Also, determining when someone is a person would be subjective under these circumstances and fraught with danger. Could personhood once gained, be lost due to age, mental illness or injury? And who would then determine this? Courts? Legislatures? Insurance companies? Legal heirs? The incapacitated themselves prior to their condition?
The recognition of personhood should obviously be inherent in the status of being human since only humans can be persons. A fetus is a human person. This is undeniable. Even in the womb and in its earliest stages, it possesses the potential and is developing the capabilities for independent life and personhood.
Now this would seem to legitimize even the most extreme (and consistent pro-life position that would rule out any exceptions even for rape). However, this need not be so.
The extreme position of no exemptions is the most logical and consistent position for the pro-life side, in contrast to the ball of contradictions that constitutes the official pro-life position of outlawing abortion in all stages of pregnancy, but allowing exemptions for rape, incest (which presumably would also be rape) or the ambiguous definition of the health or life of the mother.
The Traditional Pro-Life/Conservative Argument Against Abortion
The mainstream conservative position is fraught with contradiction. If abortion is to be outlawed, it could only be done on the grounds that it is the murder of a human being, hence the counter argument by pro-choicer's that what is aborted is not a human being at all, but if it is murder, then logically the mother must be charged as an accomplice.
Conservatives don't make this argument, at least in public, because of the distinct lack of support for such a view among the general public, who generally would consider a women on Death Row for aborting her child a great injustice. The general public's view of abortion seems to be confused and contradictory, viewing abortion as the recourse for women in dire straits and in need of a second chance, while generally abhorring abortion itself.
Allegedly, pro-life conservatives also traditionally opposed state intervention in the affairs of family life, but if they were to succeed in overturning Roe vs. Wade completely, this too would be overturned, and government, especially the federal government, would be injected into the womb of the family, into the intimate details of family planning and reducing the autonomy of families, supposedly a key tenet of conservatism. Is it really a pro-life position to place the engine of mass homicide and enslavement, namely the government, over individual voluntary choices to impose compulsory pregnancy?
By making the false conclusion that consent to sexual intercourse is also consent to the consequence of unplanned pregnancy and the child as a human life must be carried to term, then it is easy to see why the mainstream pro-life movement would deny that a woman can thereby revoke this consent and change her mind. But they go further and implicitly claim that the child's life is inherently superior to the mother's regardless of whether she consented to its creation.
Criticism of Traditional Pro-Life/Conservative Argument
The conservative/anti-abortion argument collapses because their argument ignores the rights of the mother, which exposes the contradiction in their position. If the child's right to its life is absolute, this must come at the expense of the mother's equal right to her life, even requiring the forced suppression of her rights for the duration of an unwanted, nonconsensual pregnancy. Is it just to enslave a women against her will, to place a child's rights above a women's without her consent?
Obviously, this is unjust to the mother, who it must be granted possesses superior prior rights to her life than those of the child's to its life, because the child is a secondary presence, or in more stark and perhaps distasteful language, the child, whether planned or unplanned, is, biologically speaking, a parasite on its host, the mother, regardless of whether or not she consents to its presence until it is able to survive outside the womb. Weebies takes exception to the comparison of a pregnancy to a parasitic infection, but nonetheless, the cases are similar in that one biological organism is utterly dependent on its host for its life functions. However, comparing a embryo to a parasite does not translate to a legitimate view of adults or even children as parasites worthy of extermination, as they are, unlike embryos, biologically independent beings who possess full rights to their bodies.
The argument of the pro-life/anti-choice movement could also be extended to apply to what many of them would likely oppose in other areas, such as labor competition and free markets. By repealing a woman's de facto ownership over her own body and making it subordinate to legislatures and courts, it would attack the key achievement that distinguishes modern man from previous societies, namely, that a human being controls his own labor and chooses his own avenues to contribute to society and does not exist as the property of governments and a ruling caste of either church or state that claims sole authority over the lives of the lower classes.
This achievement of the Enlightenment is the foundation of our modern concept of human rights and human dignity--to be free of aggression and violence, especially the aggression and violence aimed at overturning this concept of human social, political and economic relationships.
Prior to this, more than 99% of humanity were either slaves or serfs of one form or another, both bound to situations and conditions governing their lives that neither consented to. This is the world that women would return to, in at least one area of their lives, should either the moderate or extreme application of the pro-life argument be enacted into law.
The 'pro-life' (really, conservatives are not pro-life at all, but that's a debate for another day) side is gaining legislative and court successes. To counter this, the broader pro-choice movement needs to move beyond the old dichotomy of whether a fetus is a human being, a person or a tissue mass and embrace the reality that the child in utero is both a human being and a person and combine that with a libertarian defense against the inroads made by the anti-choice forces.
The Libertarian Case for Abortion
Any defensive argument for the right of women to abort any unwanted pregnancy, whether derived from consensual intercourse or violation, or even if circumstances change or initial consent is withdrawn, must not be based in the tenuous legal concept of a woman's right to privacy, as it currently does. Rather, a woman's right to an abortion should have been grounded from the start in her inalienable human right of self-defense as a human being against unwanted aggressions, intrusions and violations of her person. This is a right shared by both men and women, and forms the basis of other universal rights that first undermined and then defeated 'official' slavery and tyranny (and maybe, the unofficial kinds, like taxation, to come later).
In the mid-'90s, Naomi Wolf created a stir among abortion defenders and opponents with her essay in The New Republic. In that piece, entitled "Our Bodies, Our Souls," she made the provocative assertion that pro-choicer's should frankly admit that abortion is an evil, although a necessary one, because it ends a human life.
Not surprisingly, this is a strategic tactic that has not caught on, mainly due to its bad public relations for the abortion rights movement and its dangerous implications for equality before the law, which turns around and strikes at the very foundations of the abortion argument. Obviously to adopt the Naomi Wolf defense would grant to women a privileged position to murder that is not shared by most men (politicians murdering foreigners is another matter, however).
Abortion is legitimate not because a women's body is her own and a fetus is not really a human being anyway, but because a woman's body is her own and abortion of an unwanted fetus falls under her legitimate right to defend her person from unwanted violations of her body.
From the beginning, the right of abortion should have been rooted in the liberal rights of the individual and the equality of the right to self-defense. Those who support abortion should advance the principle that abortion is a component of a women's sovereign right of self-defense of her life against unwanted violations of her body, just as every man has the sovereign right to defend his life against aggression from muggers, thieves or politicians, by using whatever amount of coercive force is necessary to repulse the attack on his life or property.
On the other side, the anti-abortion argument centered on a "right to life" is somewhat nebulous. A right to life can only mean a right to exist free from aggressions against oneself, one's life and one's property. But this same "right to life" concept if claimed on behalf of a child in the womb by an outside agency, against the will of the mother, is committing aggression and violating the self-same "right to life" that conservative pro-lifers hail as their reason for intervening.
As Professor Judith Jarvis Thompson wrote more than 30 years ago in A Defense of Abortion, "Having the right to life does not guarantee either a right to be given the use of or a right to be allowed continued use of another person's body -- even if one needs it for life itself."
Both women and men should be under no illusions that abortion involves terminating the life of a human being. The pro-choice movement should concede that a human life is taken during an abortion, but defend the right to abortion as consistent with modern definitions of humanity itself, as free, self-owning individuals, and support educational efforts to make abortion rare. The anti-abortion movement should accept this right and focus its efforts on education and providing alternatives to abortion, instead of wasting energy and resources fighting the legitimacy of individual ownership. I happen to think the best way to reduce the number of abortions is to allow infants to be bought and sold, giving women the option of both continuing an unwanted pregnancy and to be financially compensated for her free choice not to have an abortion.
Around the twin pillars of legality and rarity, the opposing pro-choice and pro-life movements could learn to cohabitate and possibly even cooperate. Perhaps only by mutually cooperating in this way could the abortion wars finally be resolved.