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Fetal Rights: Enforceable in Principle

A response to "Fetal Rights: The Implication of a Supposed Ought," by Tibor R. Machan
by Edwin Vieira, Jr.
Libertarians for Life
Copyright 1996

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An argument frequently used to defend keeping abortion legal is that banning abortion will necessarily lead to severe invasions of personal liberty -- that there will be, for example, "pregnancy police". One important example of this line of reasoning, from a libertarian perspective, is presented by Dr. Tibor R. Machan in "Fetal Rights: The Implication of a Supposed Ought". There, he presents the following argument:
  1. If unborn children "have a serious right to life, then miscarriages or spontaneous abortions must become subjects of extensive and constant police scrutiny".
  2. This "constant police scrutiny" is impossible, because "[w]hatever ... is created at conception ... is often not known to exist until long after conception", even to the pregnant women.
  3. Moreover, "[w]hat is required is public knowledge as well as private knowledge"; for "the rights-protecting authorities ... must be able to know of the existence" of the unborn child in order to protect its rights.
  4. To obtain such "public knowledge" would require that the lives of all pregnant women be "unreasonably scrutinized by authorities".
  5. This "unreasonable scrutiny" would require the establishment of "institutional arrangements" that "involve extensive rights violations and, thus, make discovery of negligence and other criminal conduct during pregnancy morally impossible".
  6. And, therefore, "the 'pro-life' position implies a set of legal consequences that are impossible in the very society that supposedly recognizes the rights of its citizens in all cases other than the unborn".

Although superficially appealing, this argument is fatally flawed in numerous particulars.

Scrutiny

Machan is correct to state that

    Every state has some public policy regarding police investigation of unexplained deaths and homicide. ... The authorities must determine that there is no reasonable ground for suspecting murder or some other variety of illegal killing.

Machan fails to note, however, that these "public polic[ies]" involve investigations after, not before, deaths occur; and that the certificate of a private physician attending the deceased prior to or at death as to the cause thereof is almost always sufficient explanation to obviate further official inquiry. Because many (if not most) "miscarriages or spontaneous abortions" would be treated by private physicians who could report the deaths of the unborn children as easily as they now report the deaths of other persons, a key factual premise of Machan's thesis largely disappears. There is simply no experiential reason why any large number of presumably innocent "miscarriages and spontaneous abortions must become subjects of extensive and constant police scrutiny" beyond that already given to deaths in most instances.

Impossibility

In as much as "constant police scrutiny" of the condition of unborn persons would generally be unnecessary prior to deaths occurring -- and then, hardly ever significantly burdensome in cases involving an attending physician -- Machan's complaint that "constant police scrutiny" is impossible because an unborn child "is often not known to exist until long after conception" collapses, too.

Duty of care

No more cogent is Machan's additional concern with the morality of imposing a duty of care on a pregnant woman innocently unaware of her pregnancy. "[I]f someone is required to act in a particular way", warns Machan, "it must be possible for that person to carry out the responsibility." This is true, but irrelevant. For the law generally -- and certainly the libertarian "pro-life" position -- holds no one responsible for the violation of a theoretical duty the factual conditions precedent to which the putatively responsible individual does not know through no fault of her own.

At the earliest stages of pregnancy, a pregnant woman could have no legal duty whatsoever to the unborn child if she were unable to ascertain her state of pregnancy because of the nonexistence of a reliable scientific test. At later stages for which reliable tests were available, a pregnant woman would not violate any legal duty to the unborn child by engaging in conduct resulting in harm to the child if her failure to take a test prior to engaging in that conduct was reasonable, as the term "reasonable" is traditionally used in tort law. If her failure were unreasonable, and the conduct such that a reasoning individual would anticipate harm to an unborn child from engaging in it, the woman could be found liable for negligence. If her failure were unreasonable, the conduct foreseeably harmful to the child, and her intent in engaging in that conduct were specifically to kill the child, the woman could be held guilty of some variety of criminal homicide.

Analyzed in this manner, however, no anomalous disjunction such as Machan fears between individual knowledge and individual responsibility would arise at all. The law would exonerate all pregnant women who suffer "miscarriages or spontaneous abortions" where they cannot know or do not unreasonably fail to know they are pregnant. Thus, the libertarian "pro-life" position rests on the same general standard applicable to harms occurring between individuals after birth.

Public knowledge

Machan's assertion that "public knowledge ... of the existence" of the unborn child is somehow strictly necessary to protection of the child's rights in most cases is equally inaccurate. For protection of legal rights often operates through deterrence of illegal conduct by the wrongdoer's fear of detection and punishment after the fact. As history records, many illegal individual abortions -- and certainly the existence of "doctors" routinely performing such killings -- can be detected by the authorities using routine police methods, even where they are initially ignorant of the existence of the pregnant women involved. That ex post facto detection of illegal abortions in some cases is possible will cause deterrence in others.

To be sure, some illegal abortions would never be punished because they remained undiscovered, just as some murders of individuals already born remain unknown (because the person simply disappears without a trace, negating a finding of homicide at all), or are undefinable as "murder" (because the possibility of a natural death or innocent homicide cannot be excluded), or go unresolved (because of lack of evidence inculpating the perpetrator). But illegal abortions as such would not be beyond control by the standard processes and techniques of civil and criminal law-enforcement.

Machan's implicit point may be that the right of an unborn child not to be killed through abortion cannot be "protected" in a meaningful sense unless the abortion is prevented: and that that course of action is foreclosed to the authorities without knowledge of the child's existence. This interpretation proves too much, though. For most violations of the rights of born children, whose existence is presumably "public knowledge" through birth certificates and other records, are not prevented, only punished after the fact, when both the existence of the child and the fact of the violation of his rights become meaningfully known to the authorities simultaneously. Admittedly, the disappearance by abortion of an unborn child the existence of which the authorities have no reason to suspect is more difficult to uncover than the disappearance of a born child whose existence is recorded somewhere. But the proof typically useful in an abortion-case -- such as that woman A sought the services of a known abortionist B, that B administered a pregnancy test that was positive, and that B then performed a procedure calculated to kill the unborn child -- would certainly suffice for a finding of liability or guilt, even though the authorities had no pre-existing evidence of the existence of the unborn child so victimized, and perhaps even no evidence of his disappearance other than that which proved the commission of the abortion-procedure.

Police state

Machan then describes a "1984-like" system of constant surveillance of pregnant women that, he says, "one could imagine" as a "solution" to what he posits as the problem of "public knowledge" of the existence of an unborn child. Correctly, he denounces "[t]his kind of 'solution'" as "conflict[ing] with the existence of the rights of persons to not have their lives unreasonably scrutinized by authorities". Incorrectly, though, he assumes that the horrible "solution" he imagines has some relevance to the real world. No one, however, could [[realistically]] believe that such a draconian system is necessary to deal with any reasonably foreseeable problem of "miscarriages or spontaneous abortions" arising from arguably negligent behavior by pregnant women. Certainly such a scheme was never seriously advanced as necessary -- let alone implemented -- when abortion was largely illegal throughout the United States. Neither does it have any significant support among "pro-life" libertarians today.

Moreover, Machan's fantastic fear proves too much. For "one could imagine" such a scheme of police-state surveillance implemented in supposed protection of virtually any right. If the mere possibility that wildly over-zealous authorities could establish what Machan describes as a "veritable police state ... so as to uphold ordinary justice" suffices to prove that "a law is unenforceable in principle", then probably no law is enforceable "in principle", not just laws relating to abortion.

In sum, Machan's claim that the libertarian "pro-life" position on the humanity of unborn children necessarily implies an "absurd invasion of the rights of adult human individuals" is without substance.


Edwin Vieira, who helped organize the Maryland Libertarian Party, is an attorney who practices constitutional law. For more by Dr. Vieira on Dr. Machan's views on abortion, see also "The 'Right of Abortion': a Dogma in Search of a Rationale," published in 1978 by LFL ($1.50). This also comments on two other prominent abortion-choice libertarians, Murray Rothbard and Walter Block.

Tibor R. Machan is a Distinguished Fellow and Professor at the Leatherby Center for Entrepreneurship and Business Ethics, Chapman University, Orange, California, and a Research Fellow at the Hoover Institution, Stanford University, California.

"Fetal Rights: The Implication of a Supposed Ought" appeared in Liberty magazine, pp. 51-52, July 1989 (Liberty, P.O. Box 1167, Port Townsend, WA 98368).




LFL explains and defends the libertarian case against abortion choice. Our reasoning is expressly scientific and philosophical rather than either pragmatic or religious, or merely political or emotional.

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