Libertarians and Abortion
Tuesday, January 15, 2013
There are a handful of thorny issues for libertarians — in some cases, significant issues on which there is significant disagreement. One such issue is that of abortion.
My journey and reasoning on abortion begins and ends with the view that it is the taking of an innocent life. Whatever the cause of the pregnancy — chosen or not — the unborn child was innocent of causing the pregnancy and therefore not justifiably subject to aggression in the so-called self-defense of the mother.
However, for my purpose here, I will approach this issue via the positions of two of the staunchest libertarians of recent times — Murray Rothbard and Walter Block, and primarily Block. Although I believe it to be a moral issue, I will approach it here on their terms. Both have written in favor of abortion (although Block uses the term “evictionism”), and both have defended their respective positions from what they consider to be a libertarian viewpoint: a trespass by the unborn child and the property rights of the mother.
With this in mind, I will present the case that it is the unborn child, and not the mother, that has the right of use of the womb for the term of the pregnancy. I base this on causation, reasonable reliance, unilateral contract, and, as Block has introduced the language of landlord and tenant, a lease and the covenant of quiet enjoyment.
As mentioned, there are many libertarians that also hold the view that abortion is aggression, and that abortion is counter to libertarian principle. I will lean on one of these champions, Dr. Ron Paul, to buttress conclusions that I have independently reached on this matter.
Independent of the arguments I will make here, I conclude abortion is the initiation of the most grievous aggression: murder. I hold to this view so strongly that I am quite sure that no argument — libertarian or other — could sway me. Forewarned is forearmed — while I intend to make a libertarian case based on contract in this paper, I approach this subject with a strong bias.
I will avoid momentarily the act of rape as cause of the pregnancy, but will address this briefly toward the end of this post.
Abortion is Killing, but is it Murder?
Block and Whitehead make clear their personal view regarding abortion. From “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” by Dr. Walter Block and Roy Whitehead:
…we maintain that abortion is an abomination. It is a massive killer. More people die annually as a result of it (1,591,000) than perish from heart disease (720,058), cancer (505,322), stroke (144,088), or all accidents (91,983). Adding insult to injury, death occurs in these cases because of the purposeful action of other people.
Rothbard begins by recognizing the “Catholic” side of the argument. From “For a New Liberty: The Libertarian Manifesto,” by Murray Rothbard:
For the essence of that case — not really “Catholic” at all in a theological sense — is that abortion destroys a human life and is therefore murder, and hence cannot be condoned… Murder is not an expression of religious preference; no sect, in the name of “freedom of religion” can or should get away with committing murder with the plea that its religion so commands. The vital question then becomes: Should abortion be considered as murder?
Yes, this is the vital question, both from a moral standpoint and from a libertarian standpoint.
When Does Life Begin?
Rothbard suggests to not get bogged down in the “minutiae about when human life begins….” Block and Whitehead develop this concept further, concluding that it is appropriate to consider that human life begins at conception:
At what point does human life begin? There are really only two reasonable possibilities: at conception or at birth; all other points of development in between are merely points along a continuum which begins and ends with these two options.
So which is it? Does life begin at the beginning point of this nine-month continuum or at the end of it? We take the former position. We maintain that the fetus is an alive human being from day one onward, with all the rights pertaining to any other member of the species.
They will get no argument from me on this. As we know the result nine months later, to suggest anything other than human life resides in the mother is folly. To argue that the unborn child is not able to sustain itself is irrelevant. It is also true for a one day old baby or a six month old baby, just as it is true for the vast majority of people in the developed world today.
Aborting the Unborn Child is Like Failing to Come to the Aid
Block and Whitehead compare abortion to the act of failing to come to the aid of another — of failing to be a “good Samaritan” — not an aggressive act.
The woman who refuses to carry her fetus to term is in exactly the same position as a person who refuses to rescue a drowning swimmer. Abortion is not, in and of itself, an act invasive of other people or their property rights, even when fetuses are considered persons.
This is not a good analogy. In the case of the drowning swimmer, the potential rescuer (presumably) did nothing to cause the swimmer to drown — the person did not throw someone unable to swim into the middle of the ocean. However, the woman did take an action in the situation of pregnancy (she took action to get pregnant), and aborting the unborn child is like deliberately throwing a non-swimmer into the middle of the Pacific Ocean. This does convey some obligation.
The Unborn Child is Trespassing
Rothbard states this case:
…this is the crucial consideration. If we are to treat the unborn child as having the same rights as humans, then let us ask: What human has the right to remain, unbidden, as an unwanted parasite within some other human being’s body? …What the mother is doing in an abortion is causing an unwanted entity within her body to be ejected from it; If the unborn child dies, this does not rebut the point that no being has a right to live, unbidden, as a parasite within or upon some person’s body.
What is meant by the term “unbidden”?
It seems rather inappropriate to consider the child was “unbidden.” The mother took an action that might result (no matter the precaution taken) in pregnancy. Pregnancy is not spontaneous.
Block and Whitehead suggest the unborn child is trespassing:
Given this, how can we defend the mother's right to kill the fetus? Simple. She owns her own body, and the unwanted fetus growing within it is in effect a trespasser or parasite. This may sound harsh, but when the property rights in question are thoroughly analyzed, it is the only possible conclusion that may be reached.
Suggesting this is “simple”, and that only one “possible conclusion” may be reached when the property rights are thoroughly analyzed is a bit of a stretch, and one that I will challenge.
For the moment, I ask: if this is true for an unborn child in the womb, why not for an infant at one month old? The infant is trespassing in my bedroom. Do I have the right to place it in a situation that is certain to result in the infant’s death, simply for my convenience?
Dr. Paul agrees:
If the life of the fetus may be destroyed while within the body, there is no consistent argument against the same mother destroying that same life the minute or the week after birth it is in the mother’s home. Whether the baby is four centimeters below the skin or lying in a crib within the home, the right should be the same according to this argument, for both the body and the home are the property of the mother.
Dr. Paul cites…
…Dr. Bernard Nathanson, the abortion king who personally performed 1,500 abortions and supervised another 60,000, then subsequently changed his mind about the procedure….
An important point that convinced Nathanson abortion should be rejected was that “every good argument for abortion is a good argument for infanticide.”
But the question remains: “Does the fact that it rests in the mother’s womb and not in the mother’s crib exempt it from the prohibition against acts of violence?”
Block and Whitehead continue:
To see this point, consider the following case: Suppose one day you wake up to find yourself attached to another person, e.g., Thompson's by now famous violinist, through your kidneys. You have two healthy organs, and the other person has none that are functioning. During the night, while you slept , doctors performed an operation connecting that person to your kidneys through a sort of umbilical cord, and there you lie. This operation was conducted without the permission or even knowledge of either "patient."
What rights and obligations do you have with regard to this violinist?
The authors suggest that you have the right, after properly notifying persons who are able to assist the uninvited party, to sever the connection. I find this analogy quite lacking. I quote: “This operation was conducted without the permission or even knowledge of either ‘patient.’”
In the case of pregnancy, one of the two “patients” (the mother) did take an action with knowledge — she was no innocent bystander. The action taken always carries the possibility of pregnancy. This wasn’t some sneak event in the middle of the night performed by a devious Dr. Frankenstein, connecting a parasite to the kidney of a sleeping patient.
From Dr. Paul:
Those who defend liberty remarkably well in other areas frequently fail miserably on the abortion issue by saying that even though they recognize the fetus to be human and alive, it’s nevertheless an “intruder,” an “aggressor,” and the mother—because of her rights—can throw this intruder and aggressor out of her uterus. This argument must accept throwing out and killing an “intruder” whether one ounce, or seven pounds and one ounce, hardly a consistent position for those who say every individual by his very nature has a natural right to life and liberty. The fetus, of course, neither aggressed nor intruded. The mother and father placed him there.
There is no Contract
Block and Whitehead suggest there is no contract:
The fetus does not yet exist, and even when it does, it is impossible to have a contract (implicit or otherwise) with a one-week-old baby.
Of course, it is possible to have a contract with a minor. It is voidable, however, only by the minor.
…there can be no such contract in the case of pregnancy, at the very least because there is simply no child to have a contract with at the point of intercourse when the child is created.
There is one type of contract that can arguably be applied to such a scenario; a point I will come to shortly.
There Might be an Agreement, But the Mother Can Change Her Mind
While Rothbard does not refer to the agreement as a contract (and from a libertarian standpoint, I find no difference), he does suggest an “out” clause, exercisable unilaterally by the mother:
The common retort that the mother either originally wanted or at least was responsible for placing the unborn child within her body is, again, beside the point. Even in the stronger case where the mother originally wanted the child, the mother, as the property owner in her own body, has the right to change her mind and eject it.
What Rothbard is suggesting is that the mother can break the contract (he doesn’t use the term contract, although I will), even if the result is the death of the counter-party. It seems a rather one-sided “out” clause — where the one breaking the contract suffers little if any consequence (in fact, sees a net gain, else why break the contract?), while the ultimate consequence is paid by the party that (presumably) was satisfied with the terms of the original deal. It doesn’t seem like any clause the unborn child would have agreed to up front.
Most, if not all, contracts contain language that covers the possibility of one party or the other wanting “out” of the agreement. Remedies include continuation of performance for a specific time, return of certain forms of compensation, etc. Such contracts even include language for the most significant breach (is there a more significant breach imaginable than one that would result in the death of the counter-party based on the actions of the one breaching the contract), something like the following:
It is further understood and agreed that any breach of this agreement by you will result in irreparable harm to the counter-party , that money damages will not be a sufficient remedy for any such breach of this agreement and that the counter-party will be entitled to equitable relief, including injunction and specific performance for any such breach or any threatened breach, and that you shall not oppose the granting of such relief.
Certainly, if the mother changes her mind — as Rothbard suggests she has every right to do — it will cause irreparable harm to the unborn child. Money damages will most certainly not be sufficient. The counter-party (the unborn child) is entitled to equitable relief, including specific performance, and such relief shall not be opposed.
Similar language is included in many contracts today, and one would expect in this most one-sided contract between mother and unborn child — where the party breaking the contract realizes a gain while the counter-party suffers death — it seems reasonable that the expectation would be not less than what is standard in every-day commercial agreements.
I find Rothbard’s reliance on the mother’s ability to change her mind lacking. She has entered into an agreement, and one in which she holds all the cards. If she changes her mind, the unborn child is entitled to relief — and such relief would certainly be at least as significant as that afforded in a commercial transaction.
Evictionsim is Block’s Answer
Here Block summarizes his concept of “evictionism,” which he describes as “the only true libertarian position on abortion”:
In a nutshell, the argument for evictionism is as follows:
First, I find no trespass. How is one trespassing when one was invited? When the party host extended the invitation, she knew it would be for a nine-month visit, more or less. The unborn child was invited, one way or another, by the action of the woman. Second, when the act of eviction results in killing, Block’s attempt at splitting hairs by stating eviction is justified but killing would be wrong is lost on me.
But let’s go on. He develops the idea further here:
What is evictionism? It is the theory that a pregnant woman has the right to evict from her body the unwanted unborn child, but not to murder it.
He recognizes that, with today’s medical technology, if the eviction occurs prior to the sixth month or so, the infant will likely die. However, he suggests, over time, that improvements in technology will afford the evicted infant a chance at life even if the eviction occurs earlier in the pregnancy.
From Block and Whitehead:
The position put forth here, in contrast, is one of eviction not of killing. However , if the only way to evict is by killing the fetus, then the woman's right to her property - that is, her womb - must be held above the valuable life of the fetus.
There is significant fault with the authors’ assertion. Even if one grants that the woman has property rights to her womb, property rights can be legitimately defended only proportionately.
Can a shopkeeper shoot a six-year-old child in the back while the child is escaping with a $1 candy bar? After all, it is the shopkeeper’s property rights in question. Does the six-year-olds’ aggression justify any and every level of violence in retaliation? For the authors to suggest that the woman’s right to her property “must be held above the valuable life of the fetus” is a subjective statement, requiring judgment. The authors show no judgment here.
The Rights of the Unborn Child
I suggest a) that the unborn child does have contract rights, and b) the mother has obligations due to the concept of causation. I will caveat by stating that I am not a contract attorney. This is probably helpful, as I am not tainted by the legalese that might infect my thought. I think of contracts as agreements to be kept, with appropriate “out” clauses and penalties for non-performance — including the possibility of enforcing specific performance on the party wishing to break the contract (something the unborn child would certainly demand if faced with abortion).
First, to causation:
Causation is the " causal relationship between conduct and result ". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury.
The woman’s “conduct” certainly caused a “result.” It is difficult to accept that the woman somehow has no responsibility at all for the result directly caused by her conduct.
From the afterword of Dr. Paul’s paper, by Doris Gordon:
Being in the womb and needing parental care is a situation parents impose upon their children; children do not impose it upon their parents. As libertarians agree, no one’s mere need for care should be made an obligation upon anyone else under the law. But if we are responsible for causing those needs, as with our own children, and if we negligently or intentionally fail to provide care and then harm results, we are accountable.
The critical moral point is not need but causation and assent (i.e., choice), and thus responsibility. Since youth are not responsible for causing their country’s need for protection, military service ought to be voluntary for them. But since parents, fathers as well as mothers, are responsible for causing their own children’s need for protection, their obligation is not a matter of choice but of their children’s rights.
It cannot be avoided that the mother’s action caused the pregnancy. As her action caused the pregnancy, her responsibilities toward the unborn child cannot be brushed aside for convenience (or inconvenience).
The unborn child, now existing bidden in the womb, at the invitation of the mother, might reasonably conclude he can rely on certain conditions, a reasonable reliance:
… what a prudent person would believe and act upon if told something by another. Typically, a person is promised a profit or other benefit, and in reliance takes steps in reliance on the promise , only to find the statements or promises were not true or were exaggerated.
The one who relied can recover damages for the costs of his/her actions or demand performance if the reliance was "reasonable."
After receiving an invitation that inherently involved nine months of complete dependency, what would be more reasonable for the unborn child to rely upon than he was promised the benefit of term in the womb?
A Unilateral Contract
I suggest that the unborn child does have a right in contract, despite Block’s objection that a contract cannot be had with a party not yet in existence. On this point, he is incorrect:
A contract in which only one party makes an express promise , or undertakes a performance without first securing a reciprocal agreement from the other party . An agreement to pay in exchange for performance, if the potential performer chooses to act.
The counterparty need not be known at the time the contract is enforceable. Technically, the counterparty need not even be born when the offer was made. Offering a reward is a typical example of such a contract — a reward is made known to the general public. Subsequently, someone comes to claim it, the person who chose to act. Although he was not specifically the counterparty (at the time of contract, there was no specific counter-party), he has a contractual right to the reward.
The mother placed herself in a position of being obligated to a counter-party that might take her up on her offer.
The unborn child can enforce the contract — contracts with minors are enforceable by the minor, if the minor chooses to do so (guess what the unborn child would choose).
The Unilateral Contract is a Lease
Block uses the language of landlord and tenant to describe his concept — I will walk along his chosen path: The unborn child, as tenant, has entered into a lease —a fixed-term tenancy, with the term tied to a specific event: birth. Such a lease was recognized in common law:
A fixed-term tenancy or tenancy for years lasts for some fixed period of time. It has a definite beginning date and a definite ending date. Despite the name "tenancy for years", such a tenancy can last for any period of time—even a tenancy for one week may be called a tenancy for years. At common law the duration did not need to be certain, but could be conditioned upon the happening of some event, (e.g., "until the crops are ready for harvest" or "until the war is over").
A fixed term tenancy comes to an end automatically when the fixed term runs out or, in the case of a tenancy that ends on the happening of an event, when the event occurs.
Can the landlord evict the tenant without cause? I have reviewed several typical real estate lease contracts, and find nothing to suggest this is so. And without such a possibility, there is, of course, no remedy proposed. I suspect if the landlord wants the tenant out during the term of the lease, the landlord must negotiate proper terms and compensation for this proposed breach. What would the unborn child demand as compensation? It doesn’t seem so difficult to guess.
So, why would the mother evict the unborn child? On what grounds? For what breach?
Covenant of Quiet Enjoyment
In a lease, the tenant is protected in his right to enjoy the property without disturbance by the landlord:
In the covenant of quiet enjoyment, the landlord promises that during the term of the tenancy no one will disturb the tenant in the tenant's use and enjoyment of the premises. Quiet enjoyment includes the right to exclude others from the premises, the right to peace and quiet, the right to clean premises, and the right to basic services such as heat and hot water and, for high-rise buildings, elevator service.
It would seem to be clear that the unborn child would want to exclude an abortion doctor from the premises, and would want peace and quiet as opposed to the horrendous and permanent calamity that comes with being aborted.
The Property Rights to Use the Womb Belong to the Unborn Child for the Duration of the Contract
Based on these factors and contractual principles, I suggest that the unborn child has the rights to use the womb, rights the mother gave up for a time — in a similar manner in which a tenant has the right to occupy the rental home, rights the homeowner has given up for a time. Just as in a rental agreement where the homeowner transfers the right to occupy the house to a tenant, the mother has transferred the rights to occupy the womb to the unborn child.
The mother took an action that caused the pregnancy — causation. Her conduct caused a result for which she is responsible. Can she be relieved — by her unilateral choice — of the obligation that came to be as a direct result of her action? I don’t see how. The obligations, caused by her actions and not by the actions of the unborn child, are hers because of a unilateral contract — the one the mother extended to the potential taker — the unborn child. In this case, the unborn child took up the offer at the moment of fertilization. That he did not exist when the offer was made is irrelevant. There was sound basis for the unborn child to reasonably rely on his being wanted — the mother took action that gave this appearance.
The use of the property (the womb) belongs to the unborn child for the term of the lease — a fixed-term tenancy tied to a specific event: birth. The unborn child has the right of quiet enjoyment in the property. I conclude that the unborn child, not the mother, has property rights in the womb for the duration of the pregnancy
What of Rape?
Now, as to rape: the mother did not voluntarily take an action that resulted in the pregnancy. The pregnancy was the result of an aggression against the woman.
This could be viewed through the lens of the non-aggression principle:
The non-aggression principle (NAP)…is a moral stance which asserts that aggression is inherently illegitimate. NAP and property rights are closely linked, since what aggression is depends on what a person's rights are.
In contrast to pacifism, the non-aggression principle does not preclude violence used in self-defense or defense of others.
Aggression is justified only in defense, and only against the aggressor. The aggressor was the rapist. Whatever the unborn child is, he is not the aggressor.
Is the unborn child trespassing? I will suggest that the trespass occurred by the rapist. The unborn child is merely the result of the trespass. The remedy to the trespass cannot include aggression against a third party — the unborn child.
However, I revert to the issue of “reasonable reliance.” Does not the unborn child as result of rape have the same reason to rely as does the unborn child from a consensual relationship? From the point of view of the unborn child, in both cases, the basis for reliance identical, and the unborn child can demand performance.
The unborn child is not the aggressor; the unborn child is not the trespasser. The unborn child has property rights of use of the womb based on causation and a lease based on unilateral contract and his reasonable reliance. He has the right of quiet enjoyment.
The mother therefore has no right to take action against the unborn child that might result in harm to the unborn child.
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