"Justice without force is impotent, force without justice is tyranny. Unable to make what is just strong, we have made what is strong just." ~ Blaise Pascal
Column by Jim Davies.
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Last month I wrote Opinion and Reason to encourage clear, rational thinking: i.e., to begin with a premise, progress from it in logical steps, and only then to arrive at a conclusion. This sits in contrast to the much more usual method of reaching any opinion: to begin with a prejudice (a “pre-judgment”) and then perhaps look around for supporting rationale. Aware that alas I venture into a minefield, I thought to suggest here how the rational principle might work when considering the morality of prematurely ending a pregnancy.
Libertarians have always shown a strong majority in favor of what's called “choice” (though that's a poor term; there is always choice), but a significant minority has for long been of the other persuasion, which they call “life” (that too is a poor term, for it unfairly implies that the adversary favors death). I'll not take account of non-libertarians' views, since they all disqualify themselves from rational discourse by favoring an irrational entity, “government.” And of course, I don't imply that any majority ever properly determines any correct answer.
Axiomatically, every person has a right to life, and at some point between conception and birth, the fetus becomes a person. The problem is that people disagree about when that happens. Some say the moment is at conception itself, some that it's at natural birth but not sooner. Others hold that it takes place at the time the fetus becomes viable, able to survive solo with adequate care; presently that's early in the third trimester. The Supreme Court in Roe v Wade dodged that key question by agreeing that early on the mother has a right to privacy (even to the fact of pregnancy, let alone its outcome or external control) but said that later, the State (a mythical entity) has an “interest” in the developing babe. Presumably it acquired that interest by magic – as is quite appropriate to a fiction.
Recently three good libertarians have expressed their rationales on the subject, and have reached different conclusions; so here's a case where a correct methodology doesn't lead to total unanimity. So (shock, horror!) the coming free society will be diverse.
The three are Walter Block, Becky Akers, and Butler Shaffer. Here's my summary of how each of them sees the subject – and for good measure I'll wind up with my own take. The overall effect will, I hope, better enable the reader to form (or re-form) his or hers.
Professor Block teaches economics at Loyola University, and during his life I believe he has changed his opinion a bit, from close to endorsing “abortion on demand” (though not of course at taxpayer expense) to an original idea which he calls “Evictionism,” explained hereat length. His premise is that the fetus is “trespassing” upon the mother's body and therefore she has a right to evict the trespasser if she so wishes – but not to kill it - and the two actions are separate. The analogy is clear: a trespasser in a house can properly be subjected to such force as is needed to cause him to leave, but not to any excess force, and that principle will apply in a free society. Only in very rare cases will the necessary force prove to be lethal; the trespasser will normally just go.
Hence, in Block's Evictionism idea, the mother has the proper right to rid her body of an unwanted visitor, but not to end its life. As he says, this makes no difference in the first two trimesters – the fetus will expire after eviction – but during the third, the mother will have an obligation to see that the baby's life is preserved. The problem is one-third solved.
He makes the powerful comment that as time and science progress, viability will tend to move from six months to five, to four and so on – that eventually, it may be feasible in some “test tube” environment to take a very young fetus and bring it to maturity, and so the abortion controversy will shift, over time, and finally become moot.
This is creative thinking! It will not satisfy those whose premise is that even the fertilized egg is a human person with an inherent right to life, but it does deal with the third trimester and promises to move ever closer to dealing with even that extreme position. As a compromise, it has a great deal of merit. Its main shortfall as I see it is that while Block is a professor of economics, he deals with this as if to propose a change in the law. The problem there is that in a free society – towards which he is presumably working – there will be no law, for there will be no government, and so law is irrelevant except in the short term; rather, in that free society, economics will be the prime determinant of almost everything. Why, exactly, should the mother have an obligation to preserve the life of the evicted fetus? The answer is partly ethical, yes, but also partly economic. Somebody must pay for the baby's care. Who? Why? Prof. Block has published a great deal about this proposition, so perhaps I missed it, but I saw no reference to that key subject.
As an important aside, Walter Block briefly presented this idea to the recent Ron Paul rally in Tampa, before some 11,000 supporters. Part of that audience booed him. That tells me that participants in the political process – even those enlightened enough to like what Paul says, and who had themselves been booed and excluded from the nearby RP convention that same week! -- frequently reach their positions by prejudice instead of reason. All of them need to read, mark, learn, digest and practice the principles in Opinion and Reason. And yes, to stop wasting their time in politics, for it's a dead loss. Okay, end of detour.
Becky Akers is a formidable and prolific writer – examples here – whose pieces are a delight to read, especially her frequent denunciations of the government's TSA. She took strong exception, however, to Walter Block's proposal, scorning his use of the term “trespasser” on the grounds that no invasion of property took place; the fetus came by invitation, by a positive choice on the mother's part (rape cases excepted).
This criticism seems to me to rest on a rather narrow definition of the term. It's true that by “trespass” we normally refer to the act of crossing a forbidden threshold or border, but the condition of being a trespasser also describes someone who is on someone else's property without leave, regardless of how he got there. So for example, a girl may invite her date back home for a nightcap, but when it becomes clear he has something a lot more than cognac on his mind, she changes her mind and asks him to leave. If he refuses, he's trespassing and she is entitled to use whatever force is needed to evict him.
In a later blog, Mrs. Akers makes plain her premise about human personhood: that it begins at conception. She opposes “removing in any way the life Providence creates in the womb” and opposes all abortion because “God said, 'Thou shalt do no murder.'” On that premise, of course, all abortion is immoral if it terminates the fetus, and her solution to the problem is not to take the action that is likely to produce a pregnancy; easy to say, but not always so simple to do. But what's the source of that premise? Will it withstand scrutiny? Those quotes make it plain: she thinks God is.
The trouble with that basis for any premise is that “God” is him/her/itself a hypothesis, whose existence is incapable of proof and whose essence so far lacks any definition. Such a foundation is one of sand. She might as well have said (though as a good anarchist she certainly did not) with the Supreme Court that “the State has an interest in the unborn.” God and State: equally fictitious.
Butler Shaffer is Professor of Law at Southwestern University, and recently wrote Of Children and Fetuses on this very subject. If you have time to read only some of the articles referenced here, do include this as a “must-read.”
I can relate very readily to his reverence for life. He sees it “as sacred; not 'sacred' according to some formal religious doctrine” but “as a quality innate in, perhaps, all of existence.” He even preserves the life of spiders on the wall – in which I cannot join him, being a lifelong certified arachnophobe – but I applaud his “anger toward other kids who would step on ants or bugs for no other apparent reason than to kill them.” I wonder if such brats typically grow up to become government employees? To find out would make a fascinating research project. Wonder at the richness of life in all (or most of) its forms is one of our great pleasures; step into the back yard, and see some of what two or three billion years of blind, impersonal, random evolutionary steps have produced! (Just after I wrote that sentence, a couple of young deer meandered across mine – as if to agree.)
Surprisingly, Shaffer accepts that a zygote is a human person in this context, on the grounds that conception “is the point at which one acquires his/her unique DNA that the sense of 'thingness' is transformed into a 'personhood' that is relatively free of arbitrary definition.”
A much greater surprise comes, though, when we read what he proposes to do about mothers who abort: nothing! “I am unwilling to sanction the use of violence to either (a) physically prevent, or (b) punish a woman for having an abortion” he writes. Thus, he moves the discussion to an altogether higher plane. In a free society, from which government force is excluded and in which justice consists of restitution but not punishment, that's exactly the point – and meanwhile, Shaffer will give no support to its use of force today. Mothers will be free to abort if they wish, but their choice will bring consequences not of legal sanction, just the disapproval of some of her neighbors – who will, no doubt, decline to employ, or keep company or do business with her; and Shaffer may be among them. She will know that, and make her choice accordingly.
So here's one law professor who favors the absence of legal sanction in this matter: good for him! I think he's exactly right, and that libertarians have been preoccupied for far too long, arguing about whether to compel unwilling mothers to give birth, or else to deny life to potential humans. In effect, Butler Shaffer places a pox on both these houses and recalls our attention to what we really stand for: abolishing compulsion, laissez faire.
My own take on this vexing subject is to applaud Schaffer in his refusal to condemn those who choose to abort, but to make that tolerance easier by saying that human personhood by no means begins as early as conception.
I suggest for a premise that a human being is a reasoning animal. That's the definition, the distinguishing feature of our race. It's not perfect and needs quantification, for the dogs I've known have been pretty smart, and I hear chimps can make rational choices, but perhaps it's close enough. Reasoning – rationality – is why we can claim to have a right to life; such a right would make little sense to an entity whose existence is pre-programmed. And of course, with rights come responsibilities. The power to make rational choices introduces moral responsibility, for a prime example.
Now, is a fertilized egg able to reason? Of course not. It has no brain, even. The question is absurd. Therefore, the zygote is not a human being and so it has no inherent rights, nor responsibilities – which in any case it would have no way to fulfill. Yes, of course it is a potential person, a proto-human, but until it acquires that ability it is not, and the contrary suggestion is ludicrous.
We therefore have two parties involved: (1) the mother, who certainly has the right to choose how to dispose of all parts of her own body throughout the process, and (2) the fetus, which has no such right initially but who acquires it at some point and at latest when born. If there is a conflict, the mother's choice must therefore prevail; the fetus' rights are uncertain and variable, the mother's rights are fixed and certain. End of story.
Except for a hopefully useful post-script: those who frown upon abortion at any stage will be entirely free, absent government and its regulations, to persuade the mother to give normal birth – the persuasion taking the form of a contract to adopt the child, and of a handsome fee. This, I explored in Abortion: A Market Solution?
In the future, when government has vanished, like all other divisive issues this one will become far less important. There will be no voter groups striving to impose their will on everyone else, for there will be no mechanism for imposing anything on everyone else. Instead, there will be a true diversity, rather like the diversity shown by the three distinguished thinkers above--a marketplace of ideas and preferences, and conduct offensive to some will come with its own structure of costs. Nobody will be forced to act against his wishes. Or hers.
I hope therefore that the reader will focus on what matters: ending the government era, as soon as can be done, and not get distracted by transient controversies like this one.