Pro-choice" was once a fine libertarian term. Today, it is a code word for abortion
until birth. The libertarian meaning of the right to privacy also has been spoiled. The
charge against abortion is that it is homicide, the killing of one person by another, and
no homicide is a matter of privacy.
A libertarian framework
There may be no better issue than abortion for
understanding libertarian talk. Abortion is not a victimless-crime debate. In victimless
crimes, such as prostitution and using drugs, if there is harm, it is self-inflicted by
consenting adults. Human zygotes, embryos, and fetuses are not consenting adults, and
abortion clinics are not pleasure palaces.
Under libertarian principles, everyone,
including children, has unalienable rights. This one-tiered view of humanity is the
ethical premise of the Declaration of Independence, which says "that all men are
created equal."
Libertarian principles don't say when the
individual is created. They don't say whether it was at birth, viability, conception, or
last week. They don't define such terms as men, human beings, persons, or children; they
simply presume that we mean everyone. They don't tell us whether "everyone"
included you and me before birth. However, an all-inclusive, single-tier view of humanity
recognizes, as libertarian principles do, the inseparability of our life and our rights.
In contrast, under two tiers of humanity, society and/or the law arbitrarily decides who's
in and who's out. For example, in the past, women's right to own and control their own
property was severely limited by law.
Is conception Day One in our life? Two-tier
advocates generally don't deny that it is. But, they argue, we were only a human organism
then; we don't become a human person until later. Exactly when that moment is and what is
the magic that transforms an organism to a person, they aren't sure.
Two tiers of humanity is unlibertarian, because
it separates life from rights. It's bad enough when our rights are infringed. When
personhood is obliterated, rights are not in the picture at all.
Personhood is the foundation of our rights, and
it is pivotal in the abortion debate. If no person is killed by abortion, there is no
libertarian objection to abortion. Libertarians for Life holds that we are human beings
and persons from conception, and we explain and defend our position in some depth in our
literature. At this time, however, I will only outline our argument:
1) in biological terms, conception is Day One
in our life; we are all former zygotes, embryos, and fetuses; none of us was ever a sperm
or an ovum;
2) a line drawn for when personhood and rights
begin, other than at conception, is merely arbitrary;
3) we were persons even when we were zygotes
because we had then our capacity, our potential, for reason and choice; it is a potential
that we never fully develop, but it's a potential we lose only on death;
4) human zygotes are persons with potential,
not "potential persons"; they are actual persons with rights;
5) any argument that attempts to exclude
immature human beings from personhood or from rights also logically entails the legitimacy
of excluding more mature human beings, people who are very old, senile, mentally retarded,
etc., because such arguments measure personhood only in terms of activities a particular
individual can perform right now.
The non-aggression principle
If prenatal human beings are persons, then
abortion is homicide, and the argument that a woman has the right to control her own body
doesn't cover this fact. The libertarian-sounding rights talk we hear from abortion
choicers is generally an attempt to avoid this discussion. Nonetheless, when abortion foes
respond to rights-talk, we have to do so on the level of rights. My purpose here is to
argue from a rights perspective.
Interestingly, many people on both sides of the
debate see abortion as an insoluble clash between the child's unalienable right not to be
killed and the mother's unalienable right to liberty. Abortion choicers defend abortion as
an escape from slavery. (This was once my view.) Pro-lifers say: Respect life. And both
sides argue over which value is higher, life or liberty.
Obviously, both are priceless values, and who
would want to lose either? However, we should not confuse values and rights. Some things
can have a greater or a lesser value than other things, but here, we are discussing our
unalienable rights to things we value. Nobody's right to life or liberty is higher
or lower than anyone else's right to the same.
A "right" is a claim by one person
against another person to be given what is owed. So, what do we owe one another? What we
owe each other, basically, is non-aggression.
To "aggress" is to initiate physical
force against innocent people or their property, to commit fraud, or to fail to pay our
debts. Even endangerment, the threat of aggression, can also be aggression. However, force
per se is not necessarily aggression, as when used in defense. Defense is a just
response to aggression, if the force is proportionate to the aggression.
Your right to be free from aggression implies
my obligation not to aggress against you. You also owe me non-aggression. Obligations and
rights are opposite sides of the same coin. Non-aggression is a constant obligation
life-long, like it or not.
The non-aggression principle is the foundation,
the sine qua non, of a good society. This principle is pre-political and pre-legal.
It does not arise out of contract, agreement, or the law; rather, such devices presuppose
this principle. The unalienable rights to "Life, Liberty and the pursuit of
Happiness" announced in the Declaration of Independence are applications of the
non-aggression principle. The non-aggression principle would exist even if there were no
state, no Ninth or Tenth Amendments, nor any Constitution whatsoever. Our right to be free
from aggression is pre-legal.
And so is our personhood from which this
right flows.
Unalienable rights can be respected or
violated, but they can neither be bestowed, as a sort of gift, nor withdrawn, as with a
loan. Unalienable rights are logically necessary to the concepts of liberty and property.
If they were myths, then earning money versus stealing it and consensual sex versus rape
would be morally indifferent behaviors. Anyone who says aggression is unjust, or calls
abortion a fundamental right, agrees that there are unalienable rights. Both sides of
abortion generally agree on the primacy of such rights.
Just limits to state power
But agreeing to the primacy of unalienable
rights in principle, we have to ask how we may deal with them in practice. What is the
relationship of government to unalienable rights? Is there a just limit to governmental
power, and if so, what is it?
We have no obligation to permit aggression, and
it is not aggression to outlaw aggression. But behind every government law is the sword,
the threat of lethal force. So we must ask, when, if ever, may the government raise the
sword? The libertarian would respond, "Do you or I personally have a right to raise
the sword in order to achieve a value?" If we don't, then we have no just power to do
so and no just power to delegate to a government to do so.
This is affirmed by the Declaration of
Independence. It says, "Governments are instituted among Men, deriving their just
powers from the consent of the governed." To illustrate consent of the governed, our
right to spend our money includes our right to give others a power of attorney to spend
it. We cannot give others a just power to spend our neighbor's money, because we have no
just power to do so ourselves. A just police power is limited by the non-aggression
principle, because a just state is only an agent of individuals bound by the
non-aggression principle. No state has a just power to aggress, and no law or
Constitution can negate this principle.
Majority rule can neither withhold personhood
nor nullify unalienable rights. The strong have the brute power to legalize injustice, but
might cannot turn a wrong into a right. When aggression is legal, it masquerades as
justice, but it remains aggression.
Accepting that government should be limited
makes it easy for some people to say, "I'm personally opposed to abortion, but let's
keep it legal, because the state should be neutral." On the surface, that sounds
libertarian, but can the state be neutral as regards rights? Not in its own jurisdiction.
The state doesn't have the option of sheathing
its sword and letting people fight it out in the streets, because "free-fire
zones" are unthinkable in civilized societies. When one side claims a right to
act and the other claims a right to stop the act, the state can't enforce both claims; it
can only enforce one or the other. The state is certainly not neutral when it enables
killing by legalizing it, subsidizing it, and giving it police protection. Neither is it
neutral when it forces taxpayers to pay the bill. A government that sides with aggressors
at the expense of their victims is itself committing aggression.
One more point about the sword. There is no
such thing as a right or a just power to expose the innocent to attack. To disarm the
innocent is to limit their ability to defend against aggression. When government restricts
the just personal use of the sword, this can leave the innocent helpless against attack
and in danger of harm. Because there is no thing as a right, or a just power, to endanger
the innocent and let them be harmed, the government has the duty to protect them from
harm. Government forces us to pay taxes, claiming the necessity of defending the innocent.
Taking money under false pretenses is fraud.
Let's now return to why abortion is aggression.
On why life and personhood
coexist from conception
The benefit of the doubt
Abortion was legalized by a 1973 Supreme Court
decision on two cases, Roe v. Wade and Doe v. Bolton. In Roe, the
Court raised "the difficult question of when life begins"—and confessed
that it was "not in a position to speculate as to the answer." The Court didn't
know—yet in effect it arbitrarily decided that life begins at birth!
What should the Court do when it is undecided
on a pivotal question affecting two parties and feels it can't avoid making a decision?
Tossing a coin won't do in such cases. The only reasonable course is to weigh the possible
injuries that we would impose by a wrongful decision against either party and then choose
to avoid the worst possibility. When a human being's life is on the block, a proper legal
system gives the benefit of the doubt to life. This is why even advocates of capital
punishment call for stringent proof. If those accused of felonies get the benefit of the
doubt, why not the beings in the womb?
What are the possible wrongful injuries that
the Court should have considered? The pregnant woman allegedly faces a partial and
temporary loss of liberty; her fetus, however, allegedly faces the total and permanent
loss of life and therefore liberty as well. The answer is obvious. The Court should have
decided for life.
The Constitution affirms "the equal
protection of the laws" for all persons. The Court circumvented this principle by
dividing humanity into two tiers: a superior class of persons and an inferior class of
non-persons. In doing so, it shifted the law from the level ground of equality to a
slippery slope.
The "who decides?"
fallacy
Some abortion choicers talk as if they don't
care whether abortion is homicide; to them, the only issue is the pregnant woman's right
to her body. But what about her right to her body when she was in her mother's womb?
Was she a person when she was conceived? This question won't go away.
In considering the question, let's look again
at the libertarian-sounding rights-talk. A sound bite abortion choicers use is, "Who
decides?" One could respond, "Decides what?" "Who decides?" is
clever propaganda. It appeals to our love of liberty, and its vagueness encourages the
confused to sigh, "Oh, let the pregnant woman decide the status of her fetus."
Treating personhood as a matter of individual opinion, however, can lead to strange
results.
Imagine two pregnant women debating prenatal
personhood. One says that her fetus was a person at conception. The other says hers won't
be a person until birth. Both fetuses were conceived the same day. As the women debate, a
drunk driver hits them, killing both fetuses. What wrong has been committed?
If it's a mother's choice whether her fetus is
a person, then to be consistent, we would have to say that the death of one fetus is a
homicide but the death of the other is only, say destruction of property. This is absurd,
for the two fetuses who were killed are, objectively, the same kind of being.
Twins are born one at a time. One twin pops
from the womb. If she is a person, why not the her twin who is just minutes from birth?
Birth marks a difference in location but not a difference in kind. Getting older can make
a difference how we function, but it doesn't change what we are by nature.
If, on the other hand, we were our mother's
property when we began life, under the libertarian concept of property, she should be able
to retain ownership as long as she pleases. She could keep us as slaves and bequeath us to
others in her will.
No "moral
in-betweeners"
Anyone who denies that conception is Day One
for personhood has the burden of pinpointing when Day One is. And they must show why it is
this day rather than one day earlier, or one day later. Our need for exactness on
when personhood begins is inescapable, for we must not step on either a woman's or a
child's rights. We need a sharp dividing line. There is no moral class between
"person" and "non-person."
Abortion-choice theory, absent proof, sits on
the horns of an impossible dilemma. Drawing a line even one day before personhood begins
unjustly limits a woman's choice to destroy her property. To draw a line even one day
after personhood begins is to permit unjust homicide.
Personhood is an either-or, an all-or-nothing,
proposition because the right to be free from aggression is an either-or, an
all-or-nothing. The right not to be killed cannot be put on a degree scale, because one
cannot be "a little bit alive," or a "little bit dead." Killed or not
killed is an either-or, an all-or-nothing. You are either dead or alive. You exist or you
don't.
Thus, a so-called potential, partial, or lesser
right to life—a right that can be set aside—is, in effect, no right at all.
Persons have the right to life. If a being may be killed at whim, this being is not a
potential person: this being is a non-person.
"Person" or "non-person"
are constants. A person can have a better, or a poorer personality than other
persons, but no human being has more, or less, personhood than any other. Just as
the law has no power to give or withhold unalienable rights, it cannot give or withhold
personhood. To be an actual person, human beings need do nothing but be alive.
When one human being can dictate whether
another human being is a person, we should worry about our own prospects. I wouldn't want
my personhood to be conditional under the law, subject to the arbitrary opinions of
others. Would you? Yet, two tiers of humanity is precisely what abortion choicers support.
The answer to who decides when personhood
begins is: Personhood is inseparable from the right to be free from aggression and both
are inseparable from our life. We don't become persons; we simply are actual
persons from Day One.
The hard cases
Once we recognize that abortion affects two
human beings directly, then what about the hard cases? What about the mother's needs in
case of rape, incest, or when her life is in danger? How one deals with them can be a test
of whether one holds a one- or a two-tiered view of humanity.
The woman's life in danger is a life-boat type
of case. In life-boat cases, two or more individuals are at risk, and none of them is at
fault. Because none of them has a right to attack the innocent, none of them has a
right to attack the others. The mother's right to self-preservation does not turn her
child into a mere "thing" that she may destroy at will.
Life-threatening pregnancy is a medical
emergency in which doctors can only do the possible. Their goal should be to save both
patients, the mother and the child. The goal of a premature delivery is to help both. The
goal of abortion, however, is a dead fetus; in fact, a live birth is a failed abortion.
Incest presents no special problem for rights
if the female is a consenting adult. If she was raped, then adult or not, her role is
involuntary and such unwanted pregnancy presents a peculiar problem for rights. Not just
for the woman and her child but for observers. To explain this requires a discussion too
long to include here, but for information, please see "Abortion in the Case of
Pregnancy Due to Rape," an article by John Walker (available for $1.00 from
Libertarians for Life). Walker shows that having been victimized does not justify harming
any innocent person.
In any event, the hard cases do not obscure the
fundamental issues. If abortion per se were not aggression, then exceptional cases
like rape, incest, or the mother's life in danger would be non-issues.
What about the woman's
liberty?
Let's turn now to what abortion choicers claim
is fundamental: the woman's right to control her own body. Many abortion choicers oppose a
right to a dead fetus, particularly after fetal "viability." This is
interesting, because what about the woman's right to control her body when her fetus is
considered viable?
Strictly speaking, "viable" means
"capable of living or developing in normal or favorable situations." To
condition the right not to be killed on being able to survive in a hostile environment is
like saying, "If you are in danger, and I'm the only one who can save you, I have the
right to attack and kill you; but if you can fend for yourself, I have no right to kill
you."
We must not confuse technical medical problems
with philosophical problems. When artificial wombs are available, viability will start at
conception. Besides, a viability test is arbitrary, for it hinges largely on the
competence of medical personnel, which can vary. The fact that others lack the
ability to maintain your life does not justify or excuse the deliberate taking of your
life.
When a child is conceived, the child is
helpless. This can put the needs of parent and child in serious conflict. But it
doesn't put their rights to be free from aggression in conflict.
Some try to deal with their conflicting needs
by pointing to the common understanding of the non-aggression principle: Although we may
not aggress against one another, we have no obligation under rights to help one
another.
They are overlooking at least two important
distinctions. One distinction is between killing and letting die. The other is, who is
causally responsible?
Killing versus letting die
Abortion choicers use such euphemisms for
abortion as "pro-choice," "pregnancy termination," and
"reproductive rights," because most of them recoil at a "right" to a
dead fetus. Particularly among libertarians, some insist they favor only an
"eviction" abortion, that is, where the child is evicted intact and alive; if
she doesn't survive, that's too bad.
Letting die doesn't shut off the possibility of
survival, however theoretical and remote this possibility might be. For example, in
hysterotomy abortions (which are similar to Caesarian deliveries), children have come out
alive.
In the real world, however, the evictionist's
position gives only lip service to the moral distinction between intentional killing and
letting die, and those who give such service are playing let's pretend with somebody
else's life. Most abortions are meat-grinders, not simple "letting die"
procedures. Abortions don't merely place children in grave danger of death. In fact, the
point of abortion is intentional destruction of the fetus.
Nonetheless, the evictionist position must be
addressed. In theory, we could have a law that limits abortion to simple removal. On the
surface, such a law can seem to reflect the non-aggression principle. But let's look
deeper.
Many abortion choicers insist that, even in an
ordinary pregnancy, having to carry an unwanted child to term is slavery. The woman has no
obligation to be a good Samaritan, they argue; her right to liberty is paramount.
One error in that argument is that liberty is
not paramount. Life and liberty are equal rights; both are merely examples of the basic
right: the right to be free from aggression.
Another problem with the charge of slavery is
that it ignores the distinction between attack and negligence. When the cord is cut at
birth, the parents can passively abandon their child by walking away. Eviction, however,
is not passive; it is an active intervention against the child.
But we still have to address the heart of the
eviction argument.
What if the mother could take off right after
conception as easily as the father can? An equalizer here is in vitro fertilization.
Abandoning a child so conceived without first finding a substitute guardian puts the
child, of course, in harm's way. May the parents leave their child unattended in hazardous
situations? If their child dies, is that simply regrettable, like famine victims dying
because no one gave them assistance? For the parents as regards obligations, is there no
difference between their own children and the children of strangers?
Interestingly, even most abortion choicers
consider gross neglect and outright abandonment to be criminal behavior. When children
have medical emergencies in the middle of the night, most parents don't go back to sleep
saying, "So what if my kid might die? I have the right to control my own body, don't
I?"
It is true that the means a woman must
use to mother her child before birth are quite different from the means she uses after
birth. But what difference does it make, in principle, whether her kid is in the
crib or in her womb? When she nurses her infant or carries him in her arms, she is using
the same body she used to carry that same child to term.
As even most abortion choicers recognize, the
parent is not a good Samaritan; parents owe their immature children protection from harm.
Well, why are they obligated to provide such support? Did you and I have the right,
before we were born, to be in our mother's womb?
To nail down why we did, we have to take a
further look.
Who's mugging whom?
A child's creation and presence in the womb are
caused by biological forces independent of and beyond the control of the child; they are
brought into play by the acts of the parents. The cause-and-effect relationship between
heterosexual intercourse and pregnancy is well known. The child did not cause the
situation. The parents are the causative agents of both the pregnancy and the child's
dependence.
Who among us could have chosen not to begin
life, or not to inhabit our mother's body when conceived? Inhabiting the mother's body is
a direct byproduct of the parents' volitional act, not the child's. What the
prenatal child does, she does by necessity. And this necessity is also a direct
byproduct of the parents' volitional act.
As everyone knows, nobody survives without
certain necessities of life, and very immature children can't obtain them without outside
help. Childhood dependency is a fact of nature, like the liquidity of water.
Abortion choicers know that the stork doesn't
drop children on our heads. Yet, many insist, parents are not responsible for
"accidental" pregnancies.
This raises two meanings of "responsible
for:" 1) being the source or cause of a consequence, and 2) being accountable to
others for the consequence, owing them.
One cause of the child's existence, the union
of a sperm and ovum, is natural. But it is dependent upon an antecedent cause, the human
action that enables the two cells to come together. Nature can't do its part unless the
parents pull the trigger, so to speak. What parents cause to be is not just a child but a
child with needs; it's a package-deal. A child would not be in need of sustenance and of
help if she didn't exist. And the stork did not do it.
The fact of parental agency refutes any
assertion that the child is an aggressor of any sort, a trespasser, a parasite, or
whatever. Since a prenatal child is where she is because of her parents' actions, she can
be said to be acting as her parents' agent - which places her alleged "guilt"
squarely on her parents' heads. We might even say that the mother aggressed against
herself, except that aggression doesn't apply to actions against oneself. Let's note the
two central aspects to conception that are relevant to rights: 1) It is voluntary on the
parents' part, and not on the child's; the situation is imposed on the child. 2)
The parents' power over the child is total; it is they who have set up and control the
entire situation. If their child dies due to their negligence, they have not merely
let her die; they have killed her.
To conceive and then abort one's child - even by
mere eviction - is to turn conception into a deadly trap for he child: it is to set her up
in a vulnerable position that is virtually certain to lead to her death. Conception
followed by eviction from the womb could be compared to capturing someone, placing her on
one's airplane, and then shoving her out in mid-flight without a parachute. The child in
the womb is a captive, in the sense that she is in the situation involuntarily. The
captive is not a trespasser on the captor's property, by definition.
The non-endangerment
principle
When abortion choicers liken the parent to the
good Samaritan, they talk as if feeding one's own children is an act of charity. It is a
kindness to give charity, because nobody has an obligation under unalienable rights to do
so. Giving to charity is a matter of choice, by definition. But the good Samaritan is not
a causative agent of another's need for support; good Samaritans are chance bystanders. In
procreation, parents are not chance bystanders but active participants. Conception and
pregnancy are foreseeable consequences of even careful sex.
When children are conceived in petri dishes,
even then the parents are active participants in procreation. Here, of course, both
parents can walk off without attacking their child. But to abandon one's child in the
petri dish is like putting her on board one's airplane and then jumping out, leaving her
on the plane to crash, and doing all this without the child's consent. Sure, maybe a
stranger with a suitable womb will happen by who is willing and able to adopt her. But
what if this doesn't happen?
Let's talk again about the non-aggression
principle. Basically, non-aggression is a negative obligation, like don't commit robbery.
If we commit robbery, we incur positive obligations to the victim for the harm done.
We can also incur positive obligations even if
we have not initiated force. For example, a contract is not an initiation of force, yet by
merely signing the contract, each party to it now owes each other performance. Failure to
perform is an aggression.
The child's right of parental support does not
arise out of contract or tort, or out of any aggression committed by the parents. It does
not arise out of the biological relationship of parent to child. The child's right arises
out of the non-aggression principle. To see why, consider the matter of endangering
innocent people without their consent.
One example is lighting a barbecue in our back
yard. The mere act of starting the fire is not aggression. But if the fire threatens to
spread to our neighbor's land, we caused the danger. If their property catches fire, we
also caused the harm and initiated force. Since we may not end up initiating force, we
may not endanger others without their consent and then let harm befall them.
We could call this the non-endangerment
principle: If we endanger innocent people without their consent, we owe them protection
from the harm. Notice, although prevention of harm may require positive actions on our
part, it is still essentially a negative obligation. And we can incur it even though no
one has yet suffered any actual force.
Threats of harm, however, can be considered as
forms of aggression. The kind and degree of prevention we must provide depends upon the
kind and degree of the risk we impose upon others. When we drive a car, at the minimum, we
must stay alert and drive carefully. When people drive drunk, we have no obligation to
wait until they bash someone before we take them off the road.
The child's right to be in
the mother's womb
Some abortion choicers say that life is a gift
to the child by the parents, a gift that doesn't bind the parents. A "gift,"
however, implies the option to refuse to take it, and beginning life is not an option for
the child. Her life is thrust upon her, and so her need for life support and so is her
inability to fend for herself. Conception doesn't make a child worse off (or better off)
than before, because children do not pre-exist conception, but she is created vulnerable
to harm. For the parents to thrust this package upon the child and then take off is to
thrust the child into danger, to threaten her with harm. If harm befalls the child because
she was abandoned, it's the parents' fault, not the stork's.
The parent-child relationship is unique as a
situation: it is the only one that begins when one side causes the other side to exist.
But parental obligation is not unique as an obligation - the obligation to act justly
towards others is a universal, rather than a special, obligation.
The source of parental obligation is the
obligation to not aggress; parental obligation is simply a concrete example of this basic
obligation. By caring for their child, the parents prevent an aggression that would take
place if they were to willfully or negligently permit harm to befall her.
Conception is not, in itself, endangerment or a
threat of aggression; it's a normal, natural fact of life, and pregnancy automatically
protects the child against the possible dangers of an unsupportive environment. Yet by
conceiving a child, parents give themselves a life-or-death power over her, and they get
this control without her consent.
If parents intentionally or negligently use
their power to put their child in harm's way (not feeding her, for example), they caused
the danger without her consent. If the child is harmed (starves to death), they also
caused the harm without her consent.
Even simple eviction from the womb initiates
force and violates the child's rights. In most abortions, however, the child is first
dismembered or poisoned, then evicted.
Killing a child either directly or by
deliberate negligence is a wrong, not a right. Abortion - even a simple removal - is
lethal child abuse.
I once saw a bumper sticker that said, "I
owe, I owe, so off to work I go." It was a fun way of complaining about having to
drag one's body to work in order to make the car payments. And it also taught a
fundamental truth: the right to control one's own body doesn't justify the failure to pay
one's debts.
You owe your own kid protection from harm; you
must provide. She has the right, under individual liberty, to your support. Parents have
no right to kill their children, and neither do they have a right to evict their children
from home. For the prenatal child, the mother's womb is home; this is where she needs to
be - and this is where she has the right to be.
The so-called "right" of abortion is
not libertarian; it is a dogma in search of a rationale.
These remarks were presented at the
University of Chicago on November 10, 1994; the program was sponsored by the Pro-Life
Association of the University of Chicago.
