The Libertarian Case Against Abortion

 

 

 

 

 

 

 

 

The Libertarian Case Against Abortion

The subject of abortion is without a doubt, one of the most controversial topics in our society today. Abortion is such an emotional topic for so many people, primarily because it involves two individuals with critically important, but apparently conflicting rights:

• Self Ownership and Non-Aggression Principle (NAP)
  • The right of the woman to own and control her own body vs.
  • The right of the baby not to be murdered

By definition however, a valid right can not be in conflict with another valid right.  As Murray Rothbard so poignantly observed

Anyone who believes in the existence of a natural law discoverable through right reason (as Mr. Meyer and myself both do), must also believe that this natural law is self-consistent. Outside of the irrational world of the Hegelian dialectic, there can be no conflicting truths, nor contradictory but true propositions. And since the rights of man are deducible from natural law, these rights cannot conflict with one another. If one discovers a contradiction, one has also discovered an error in one’s process of reasoning. We must not surrender reason at its most critical point by meekly accepting contradiction. We must go further to seek out the error and discard it.

Thus, it is incumbent upon those seeking a consistent political ethic to clarify each argument until the incontrovertible truth is found.  As example, can a poor man claim a right to “a basic safety net” after taking – – without permission – – the justly acquired property from a rich man’s house?  The answer is clear to the libertarian; the poor man’s taking of property is not a valid right, and his action is properly noted as theft and aggression against the rich man’s right to property.

It is my contention that an unfortunately large number of our fellow libertarians have come to the wrong conclusion on the subject of abortion.  This includes many utilitarian minarchists at Cato and Reason, and a number of highly respected natural rights anarchists like Walter Block and Murray Rothbard.

I will attempt to provide my clarification of the libertarian anti-abortion argument as properly aligned to self ownership, the non-aggression principle, and natural law.

Anti-Abortion Argument Summary

 

• A new human life is created at conception; with conception the scientifically defined start of human life and the earliest point in the biological continuum of human development.  

• An unborn human child is a distinct body which receives full self-ownership and natural rights immediately, with parents serving as secondary owners/trustees and guardians.

• The woman provides initial consent for the child to enter her womb/property by engaging in consensual sexual activity.

• The pregnant woman – – retaining full self-ownership rights and an inalienable will – – can withdraw that same consent and, by only the strictest of definitions, consider the unborn child a trespasser.  However…

• The woman must still adhere to the principles of proportionality in defense/punishment for any potential trespasser.

• The woman must also fulfill valid positive obligations.  Specifically, the woman must at least act to safely remove the child out of her property, and also transfer guardianship responsibilities.

• The child enters the womb and a state of mortal danger and dependency not by their own action, but by the actions of others.

• The child is completely unaware they are not welcome and considered a trespasser in the woman’s body/property (e.g. no mens rea).  

• The child has no means to remedy the trespass and remove themselves from the womb.

• Defensive violence to stop aggression against an innocent third party is both moral and legal.

• Thus, to be consistent, libertarians should not only be opposed to abortion, but in favor of making it a criminal act just like murder, rape, kidnapping, theft, assault, [fraud] and robbery would be in any libertarian society based on the non-aggression principle. (L. Vance, LRC, 2012)

• Thus, abortion is the murder of an innocent child and is to be outlawed in all cases of pregnancy except to save the life of the mother.

• If the mother’s initial consent is withdrawn, the mother must find the least violent and proportional method of removing the non-violent trespasser (e.g. give birth to the child at term, or utilize Block’s Theory of Evictionism after viability).  After the baby is safely removed from the woman’s property, she must avoid violating the child’s natural rights by fulfilling her positive obligations to transfer the child and her guardianship to a safe, sustainable environment.

• If the mother’s consent was never given (i.e. rape), the mother must still find the least violent and proportional method of removing the non-violent trespasser (e.g. give birth to the child at term, or utilize Block’s Theory of Evictionism after viability).  Since the mother’s consent was not provided, she incurs no legal positive obligations to act after extrication or facilitate proper guardianship transfer.    However, a fairly clear moral obligation can be noted for the mother to ensure the safety of the unborn child, since it was the biological father who was the aggressor, and the child is innocent in almost every possible respect.

First, we should start with a quick overview of the key rights and principles under consideration. (http://lewrockwell.com/vance/vance297.html)

According to the late Murray Rothbard here and here:

The fundamental axiom of libertarian theory is that no one may threaten or commit violence (“aggress”) against another man’s person or property. Violence may be employed only against the man who commits such violence; that is, only defensively against the aggressive violence of another. In short, no violence may be employed against a non-aggressor. Here is the fundamental rule from which can be deduced the entire corpus of libertarian theory.

Libertarianism holds that the only proper role of violence is to defend person and property against violence, that any use of violence that goes beyond such just defense is itself aggressive, unjust, and criminal. Libertarianism, therefore, is a theory which states that everyone should be free of violent invasion, should be free to do as he sees fit except invade the person or property of another.

And according to Rothbard’s disciple Walter Block here and here:

Libertarianism is a political philosophy. It [is] concerned solely with the proper use of force. Its core premise is that it should be illegal to threaten or initiate violence against a person or his property without his permission; force is justified only in defense or retaliation.

The libertarian position on anything is based on the question of, Does it violate the non aggression principle (NAP) about initiating or threatening physical violence. If so, the libertarian position is that it should be illegal, and punished by the full force of the law. If not, the libertarian position is that it should be legal, and it would be unjustified to use physical violence against the person who engages in that act.

Human life begins at conception

A significant (but hypothetical) discovery has just been made – – fertilized frog eggs have been found on the planet Venus.  However, due to environmental and other limitations these fertilized eggs never progress past a few days.  How would you expect the scientific community to react to this discovery?  Would it be a collective shoulder shrug “Well, we only found potential life…”?  Or would the reaction be closer to “Life found on Venus!!  We don’t know how it got there, or why it doesn’t progress further…but we found life on another planet!”?

For our analysis, we could replace the fertilized eggs in our scenario with just about anything else, but I specifically chose non-human eggs in order to avoid the the general political/emotional hesitation many individuals have when asked to define “when does human life begin?”.  Contrary to a famous politician’s assertions, the answer is not above anyone’s pay grade.

The sciencitific, biological answer to when human life begins is crystal clear – – conception.  The fertilized egg is a human being at the earliest point on the continuum of life.  As Judge Napolitano notes:

The baby is produced by the physical interaction of two human parents, and every unborn baby possesses a fully actualizable human genome: all the material necessary to grow to adulthood and to exist independently outside the womb

Many people claim unborn babies are not human and/or “alive” until they’ve exited the womb and are breathing open air.  I submit that the baby’s extrication from the mother and utilization of gaseous (vs. liquid) oxygen are just a couple of the major milestones in human development.  Selecting these as the definition of human life’s beginning is relatively arbitrary, and not based upon solid biology and science.

Overall Human Development Milestones

Zygote, Blastocyst, Embryo, Fetus, Neonate, Infant, Toddler, Play Age, Primary School Age, Adolescence, Adulthood, Death.

As an embryo:

• Weeks 1-3: the brain, spinal cord, heart, and gastrointestinal tract begin to form
• Weeks 4-5: brain activity starts, the heart beats and blood begins to flow
• Weeks 6-8: the baby is capable of motion, and the eyes begin to form

As a fetus:

• Weeks 9-16: other organs are formed by week 11 and functioning by week 14
• Weeks 17-25: at week 18, the baby can hear and is startled by noise; genitalia is formed.  At week 24, the lungs begin to develop materials which will allow air sacs to fill once outside and breathing gaseously
• Weeks 26-38: advanced brain development allowing sensory mediation; body fat rapidly increases; birth is imminent
• Weeks 39-41: extrication from the mother, baby’s lungs fill as it breathes open air; umbilical chord is cut and baby is now physically separate from mother’s body

Breathing outside air – – How exactly does the method by which a person acquires oxygen dictate their humanity?  As noted above, this biological advancement is just one of many development milestones.  To consider a quick scenario: Would a 3 year old child or 85 year old grandmother with defective lungs and whom required liquid oxygen delivery (like the pink liquid stuff in the movie ‘The Abyss’) be considered non-human and thus legally/morally acceptable to kill at whim?

Late Term and other “abortion no longer allowed” lines – Numerous other demarcation lines for the beginning of human life have been proposed.  I submit all of which fail due to their arbitrary nature and/or inability to refute the thesis that biological human life begins at conception.

More specifically, a clear majority of the overall population – – including many pro-choicers – – favor laws preventing abortion in the third and final term (often referred to as late term abortion).  The question becomes “why draw the line here and not a day, week or months earlier?”  The answer seems to be that late term abortion simply fails most people’s sense of decency because it is much harder to claim that baby is just a glob of cells and abortion just a medical procedure.  A third trimester baby now looks a lot more like a small child and less like an indistinguishable ink blot on an early ultrasound.  Additionally, medical advancement continues to move the line of viability earlier and earlier in the development stages.  Babies in the second trimester can now survive outside the womb, and many extreme prematurely born children have gone on to lead healthy, long and happy lives.

In a more scientific twist, Carl Sagan makes a fairly reasoned proposal that human life should be defined as beginning at 30 weeks since that is when regular patterned brain activity occurs.  Before this point, the baby is only a potential human, but after 30 weeks, Sagan believes abortion should no longer be tolerated (essentially pro-choice but no late term abortions allowed).  But why select regular patterned brain activity as the criteria for humanity instead of full capacity for and utilization of human reason?  After all, many philosophers and scientists agree that human capacity for reason, normative discussion, and purposeful action is the true distinction when comparing humans to the rest of the natural world (e.g. chimps, elephants…etc).  Following Sagan’s logic further to the point where the child is exhibiting reason would allow infanticide to ages that would make almost every pro-choicer shudder in disgust.  Perhaps in the case of a person with no brain functions (now and no possibility in the future), people of good faith can debate whether the unborn or born child could/should be euthanized out of mercy.  However, killing millions of children who, at the time of conception, have every required genetic component and will develop full brain capacity is a clear violation of the non-aggression principle and within the realm of political ethics.

A mother’s preference does not determine when human life begins

Biologically, the 1 day old fertilized egg or even the 8 month 29 day old child still in the womb is either a child (as we have claimed above), or a simple glob of cells – – the mother’s preference can not dictate human life.  This is intuitively seen in a common debate scenario offered up to the pro-choice crowd – – Is it simple assault or murder in a case where the woman desperately wants the child, but the baby’s biological father does not, and thus hires a thug to punch/kick his pregnant girlfriend in the stomach, killing the child?  Murder is a violation against the natural law, and can not be arbitrarily defined based upon an individual’s specific situation or wants.  A pregnant woman is not Caesar, extending her hand and then thumb pointed up or down to confer life and natural rights.

“I happened to have walked into an operating room where they were doing an abortion on a late pregnancy. They lifted out a small baby that was able to cry and breathe and they put it in a bucket and put it in the corner of the room and pretended it wasn’t there. I walked down the hallway and a baby was born early — slightly bigger than the baby they put in the bucket and they wanted to save this baby. So they might have had 10 doctors in there doing everything conceivable [to save that baby’s life].”

“Who are we to decide that we pick and throw one away and pick up and struggle to save the other ones,” Paul continues. “Unless we resolve this and understand that life is precious and we must protect life, we can’t protect liberty.”

Ask the Scientific Experts

When considering the scientific foundation of the claims above, we encourage you to reference the testimony of preeminent doctors and scientists in the fields of genetics and biology.  Here are just a couple of the quotes from the Sentate Judiciary subcommittee meeting held in April 1981 on the subject of “When does life begin?”

Dr. Hymie Gordon, Chairman of the Department of Genetics at the Mayo Clinic, said: “By all the criteria of modern molecular biology, life is present from the moment of conception.”

Dr. McCarthy de Mere, a medical doctor and law professor at the University of Tennessee, testified: “The exact moment of the beginning of personhood and of the human body is at the moment of conception.”

Dr. Jerome Lejeune, The Father of Modern Genetics, testified that, “Each of us has a very precise starting moment which is the time at which the whole necessary and sufficient genetic information is gathered inside one cell, the fertilized egg, and this is the moment of fertilization. There is not the slightest doubt about that and we know that this information is written on a kind of ribbon we call the DNA.”

In addition, here are numerous other references to scientific journals, articles and quotes further stating that human life begins at conception (https://www.princeton.edu/~prolife/articles/embryoquotes2.html)

When in doubt…

If you still question when life begins, there is one other aspect to consider which may help.  In the absence of moral/philosophical certainty, we should consider the pragmatic risks and cost/benefit.  What if life begins at conception?  Then abortion is the murder of an innocent, defenseless human child.  What if life begins after birth?  Then the woman is temporarily enslaved.  On the continuum of aggression, murder of the innocent significantly outweighs temporary enslavement.  When in doubt

– – go with life.

Children are self owners and receive full natural rights immediately; parents are custodians and guardians obliged not to infringe on those rights

Now that we have established the scientific definition of a new human life, we should consider whether natural rights (with the core of self ownership and freedom from aggression) are bestowed immediately, completely/simultaneously or rather bestowed later and/or along a continuum (i.e. only as they are earned – – either through asserting them, or some other biological progression).

This article maintains that all human beings have full and immediate natural rights regardless of sex, age, development, ethnicity, race or skin pigment, sexual orientation, geographical location, their life’s place in historical time, or any other consideration.  They have these rights as part of their humanity in accordance with natural law (as advocated by Rothbard) – – or as Hoppe notes in his A Theory of Socialism and Capitalism

“…rights are held by rational agents — those who are “capable of communicating, discussing, arguing, and in particular, [who are] able to engage in an argumentation of normative problems“

We reject the concept of ‘potential humans’ as advocated by many in the pro-choice camp.  Utilizing the scientific, biological basis noted above; from conception to death, a person is fully human with full rights.

Additionally, if one is to hold to the strictest philosophical definition that one must actually exhibit rationality before gaining rights, this invites the horrific state of affairs where infants, toddlers, young children and perhaps some teenagers and adults would not be considered human.  Aggressive violence of the worst kind (e.g. slavery, rape, murder) against these pre-rational ‘potential humans’ would seem to be completely legal.  Additionally, it would also seem legally acceptable to take actions to prevent these potential humans from ever attaining rationality (e.g. introduction of chemicals designed to retard cognitive development, outlawing education and philosophic discussions; indoctrination techniques to maintain subservience).

Let us now consider the theory that rights are earned along a continuum.

A common view involves a belief that rights are earned as they are asserted/argued.  But does assertion earn the right, or was the right already owned by the individual?  Here are a couple scenarios to consider

• Currently unable to assert – If a person is unable to overtly express a defense or will against being murdered (e.g. someone sleeping/coma and without a living will), can they be killed legally at whim?
• Currently unwilling to assert – consider the case of Tolstoyans who are unwilling to use defensive violence; do we claim they have no property right and freedom from aggression because they choose not to resist?
• Unaware – What if a woman is raised in a culture and community such that she is viewed as property of men; further, she is completely unaware of her ability to think/behave/reason as an individual?

The ‘rights are earned’ theory would seem to hold that none of these examples presents a violation of property or natural law.

Realizing or exercising a right is not a pre-requisite to earning/owning that same right.  I believe it is more accurate to say natural rights are inalienable – – regardless of whether we are physically able to assert them, want them, or are even cognitively aware of their existence.  As Rothbard states in Chapter 14 of The Ethics of Liberty

“The disability of minors does not make slaves or criminals of them…. Can we hold children responsible for crime; liable for their torts; impose onerous burdens upon them, and yet deprive them of their liberty, without charge or conviction of crime? [The Illinois Bill of Rights, following upon the Virginia Declaration of Rights and the Declaration of Independence, declares that] “all men are, by nature, free and independent, and have certain inherent and inalienable rights – among these life, liberty, and the pursuit of happiness.” This language is not restrictive; it is broad and comprehensive, and declares a grand truth, that “all men,” all people, everywhere, have the inherent and inalienable right to liberty. Shall we say to the children of the State, you shall not enjoy this right – a right independent of all human laws and regulations…. Even criminals cannot be convicted and imprisoned without due process of law.”

For sake of argument, let’s hypothetically agree to the “assertion earns the right” theory.  We must then define what “assertion” entails.  I believe most advocates would agree that verbal or non-verbal actions would suffice.  As example, you stab at me with a knife and I assert my natural right to protect my body/property from aggression in one or all of four ways

1. verbally yell “no”, “stop”, “help” or similar
2. counter-attack
3. defend (e.g. put my forearm to block)
4. run away

If we agree that these count as asserting a right, then it is also worth noting that ultrasound videos of abortion procedures have shown that babies as early as the first trimester physically react (drastically increased heart rates) and actively move and try to avoid the abortionist’s aggression/tools.  Even the early human child recognizes a violent and aggressive threat to their life.

But isn’t the mother the primary owner of this small/early child?

Expanding on the scientific evidence noted above, we state again that the child is a new, separate human being with its own body.  It has different DNA, progresses and acts independently of the mother’s will, and will often have a different blood type.  The NAP and self-ownership conclude that human beings can not own other human beings (certainly not without their consent…leaving Walter Block’s support for the possibility of Voluntary Slavery to the side for this article).  As such, it would be improper to prescribe full property ownership by parents over their children.  Parents serve as limited owners, or what might be more accurately described as a trustee and guardian for the child.  As Rothbard noted:

But surely the mother or parents may not receive the ownership of the child in absolute fee simple, because that would imply the bizarre state of affairs that a fifty-year old adult would be subject to the absolute and unquestioned jurisdiction of his seventy-year-old parent. So the parental property right must be limited in time. But it also must be limited in kind, for it surely would be grotesque for a libertarian who believes in the right of self-ownership to advocate the right of a parent to murder or torture his or her children.

Additionally, Stephan Kinsella’s article “How We Come To Own Ourselves” begins to lay out a good ground work in self ownership, but also the rights and obligations of parents (particularly for those struggling with Rothbard’s “stop feeding kids anytime you want” stance).

To quickly summarize our assertion, the unborn child is a separate human body, and thus first and always the primary owner due to homesteading and/or because it has the clearest, most objective link to ownership of its body.  Parents maintain the most objective claim to some level of secondary ownership as guardian and custodian to the child’s rights and development.

The woman provides initial consent for the child to enter her womb/property by engaging in consensual sexual activity

Imagine the scenario of a plane owner which smuggles highly profitable cargo to/from a geographic area under tyrannical rule.  As a pre-condition to their dealings, the oppressed traders stipulate that at some point, there is a very small chance (<3%) that some person may require smuggling out of town.  The plane owner, although not wanting the risk/burden of human cargo, agrees to proceed based upon a low risk percentage and the high reward opportunity on regular cargo loads.  During one return flight, the plane owner finds that an unconscious, bound, three year old child has been placed in his cargo hold by the traders.  To add weight to the pilot’s scenario, let’s also say the child was scheduled for execution by the local tryant due to her parent’s insurgency efforts.  In effect, we are following Walter Block’s common line of argument where the pilot is essentially giving the child life, and improving their overall situation.

While the plane owner never did, and certainly now does not want the child on board, he consented to the terms by word and action (proceeding with the traders).

Likewise, the woman voluntarily engaged in an activity she knew contained some level of risk that pregnancy could occur, and that an innocent life would be dependent upon the woman’s body/property to sustain it for a period of time.

We will revisit this plane scenario and the plane owner’s remedy options in subsequent text below.

The mother – – always retaining self-ownership and an inalienable will – – can change her mind. By only the strictest of definitions,  it is now possible to classify the child a trespasser

Stating the woman has a right as a self-owner to do whatever she wants to or within her body is probably the most compelling argument on the pro-choice side.  As noted earlier, natural law libertarianism proclaims the absolute right of each person as self-owners over their own lives, body and property.  To deny this right is open the door to enslavement and all manners of tryanny.

The unborn baby as parasite

A parasite defined: a being which is who receives support, advantage, or the like, from another or others without giving any useful or proper return, as one who lives on the hospitality of others.

The truth of the matter is this definition applies equally to a 1 month old baby inside the womb, as it does to a baby that is 1 month out of the womb (particularly if it is solely breast-feeding).  But no one is claiming the woman’s right to extinguish the life of her child out of the womb because it is a parasite living solely on the hospitality of others.

What the pro-choice argument seems to boil down to is the belief that regardless of how the baby got there, the woman retains her self-ownership right as land/body owner and has decided the baby was never or is no longer welcome and thus should be expelled as a trespasser.

The unborn baby as trespasser

Many on the pro-life side of the argument stick to a simple contract argument which states that the woman consented to the baby by engaging in sex, and she’s now obliged to fulfill that contract by giving birth.  This argument is not the most effective or accurate because it discounts or ignores the woman’s inalienable ownership over her body and will.  The inalienability of human will prevents our decisions today from binding us to future enslavement and actions against our will.  This can be quickly realized in the cases of employment contracts or even agreements to marry.  In all cases, a person can withdraw initial consent, legally not fulfill the action, and only be required to return any up-front moneys paid to them (and any applicable performance bond).  As Murray Rothbard aptly pointed out:

THE RIGHT OF PROPERTY implies the right to make contracts about that property: to give it away or to exchange titles of ownership for the property of another person. Unfortunately, many libertarians, devoted to the right to make contracts, hold the contract itself to be an absolute, and therefore maintain that any voluntary contract whatever must be legally enforceable in the free society. Their error is a failure to realize that the right to contract is strictly derivable from the right of private property, and therefore that the only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party. In short, a contract should only be enforceable when the failure to fulfill it is an implicit theft of property. But this can only be true if we hold that validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft). Hence, this proper libertarian theory of enforceable contracts has been termed the “title-transfer” theory of contracts.

… 

Let us pursue more deeply our argument that mere promises or expectations should not be enforceable. The basic reason is that the only valid transfer of title of ownership in the free society is the case where the property is, in fact and in the nature of man, alienable by man. All physical property owned by a person is alienable, i.e., in natural fact it can be given or transferred to the ownership and control of another party. I can give away or sell to another person my shoes, my house, my car, my money, etc. But there are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily. Specifically, a person cannot alienate his will, more particularly his control over his own mind and body. Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, “stuck” with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will. That is the ground for the famous position of the Declaration of Independence that man’s natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so.

Unfortunately, both Rothbard and Block try to take this generally acceptable title transfer contract theory to the incorrect conclusion point that there can be no positive obligations to act – – only later to provide their own exceptions/contradictions (which we will cover more below).

Moving more specifically back to the topic of abortion, an inalienable will means everyone – – including a pregnant woman – – can withdraw their initial consent.  Simply put, we all have the right to change our minds.  I may have invited you to my home, but I’ve changed my mind, asked you to leave, and failure on your part to comply would properly classify you (or the unborn baby) a trespasser.

The woman must still adhere to the principles of proportionality in defense/punishment for any potential trespass

As Murray Rothbard noted in Chapter 12: Self Defense in The Ethics of Liberty

How extensive is a man’s right of self-defense of person and property? The basic answer must be: up to the point at which he begins to infringe on the property rights of someone else. For, in that case, his “defense” would in itself constitute a criminal invasion of the just property of some other man, which the latter could properly defend himself against.

…

Secondly, we may ask: must we go along with those libertarians who claim that a storekeeper has the right to kill a lad as punishment for snatching a piece of his bubble gum? What we might call the “maximalist” position goes as follows: by stealing the bubble gum, the urchin puts himself outside the law. He demonstrates by his action that he does not hold or respect the correct theory of property rights. Therefore, he loses all of his rights, and the storekeeper is within his rights to kill the lad in retaliation.

 I propose that this position suffers from a grotesque lack of proportion. By concentrating on the storekeeper’s right to his bubble gum, it totally ignores another highly precious property-right: every man’s—including the urchin’s—right of self-ownership. On what basis must we hold that a minuscule invasion of another’s property lays one forfeit to the total loss of one’s own? I propose another fundamental rule regarding crime: the criminal, or invader, loses his own right to the extent that he has deprived another man of his. If a man deprives another man of some of his self-ownership or its extension in physical property, to that extent does he lose his own rights.[5] From this principle immediately derives the proportionality theory of punishment-best summed up in the old adage: “let the punishment fit the crime.”

And again, later in Chapter 13: Punishment

the criminal loses his rights to the extent that he deprives another of his rights: the theory of “proportionality.”

…

it should be quite clear that, under libertarian law, capital punishment would have to be confined strictly to the crime of murder. For a criminal would only lose his right to life if he had first deprived some victim of that same right. It would not be permissible, then, for a merchant whose bubble gum had been stolen, to execute the convicted bubble gum thief. If he did so, then he, the merchant, would be an unjustifiable murderer, who could be brought to the bar of justice by the heirs or assigns of the bubble gum thief.

This principle is fairly straightforward and agreed upon – – even in today’s non-libertarian society.  Would it be legal for you to shoot a man for rudely bumping into you; or using a baseball bat to the head of a woman which is constantly lightly touching you on the wrist?  Going back to our primary case of Trespass; can a person immediately and always shoot someone who accidentally (or purposely) wanders and trespasses onto the edges of their 3,000 acre property?  Again, the land owner has the right to defend his property, but any violence must be done in a reasonable and proportional manner.  Defensive lethal force can only be used if it can be shown that the property owner had a reasonable, clear and present danger to their own lives.

This paper and the Rothbard position above directly contradict the position that some hold that we are required to start with the most gentle/proportional, but we can escalate as needed to successfully stop the crime (e.g. Walter Block).  In summary, we reject the idea that it would be legal to shoot the bubble gum thief dead in the back as they ran out across your parking lot.

Going back to the scenario with our plane owner in flight and the unconscious, bound, three year old child unknowingly placed in his cargo hold by her parents.  Although the plane owner consented initially to this possibility, he never did, and certainly does not want the child on board now.  By the strictest of definitions, the child is now classified as a trespasser.  What recourse does the plane owner possess?

Can the plane owner immediately put a gun to the child’s head and pull the trigger?  Of course not, and precisely because that punishment is clearly disproportional to the child’s crime.  Can the plane owner “evict” the child from the plane by pushing them out the door at 10,000 feet – – providing a certain death sentence for the child?  Again, this is clearly not a proportional punishment to the transgression at hand.  For either the gun shot or pushing out the door options to be considered legal, the plane owner must show evidence he felt his person/property was reasonably threatened to a proportional degree (i.e. that his life was in severe danger from the trespasser, thus his taking of life was a necessary and proper defense).  In our scenario, as in the scenario of pregnancy, the trespassing child posing a threat to the property owner’s life is rarely a significant/true risk.  The plane owner can evict, but only once he can do so in a way that would not inflict disproportionate harm upon the trespasser.  In reality, the plane owner would at least have to land and place the child in a safe environment.  In pregnancy, this means safely delivering or evicting the child to a safe environment after viability is assured.

Walter Block is fond of using a scenario where a person saves another person from drowning in a lake.  By essentially giving life, is a libertarian legal system then going to coercively force our good samaritan to continue providing around-the-clock aid for an indefinite amount of time – – essentially becoming a slave to the still unconscious victim?  Most libertarians, and even our current justice system would agree that the hero is not obligated to continue serving the victim’s needs – – even if it means the victim will perish.

But how does this scenario change if the lake rescuer (like our plane owner) was the person which was fully, or at least partially, responsible for the other party being in a state of danger and dependency (i.e. the rescuer was the person who pushed the drowning person into the lake in the first place)?

Here are a couple more facts to consider as we consider the degree of criminality committed by the unborn child’s trespass:

• The child enters the womb and a state of mortal danger, dependency, and trespass – – not by their own action, but – – by the actions of others.
  • quoting Wiesniewski’s concluding statement the rejoinder to Walter Block  “if one voluntarily initiates the causal chain which leads to someone else ending up on his property, the latter person can not be considered a trespasser, and consequently, ceteris paribus, can not be evicted and physically harmed as a result without the owner of the property in question violate the libertarian ethic.”

• The child is unaware they are not welcome and considered a trespasser in the woman’s body/property (i.e. the baby has no mens rea).  
  • Both current state law and libertarian theory note the critical relevance of mens rea to the assignment of criminality to a specific action (e.g. Walter Block’s example of Typhoid Mary).
  • This lack of criminal intent on behalf of the child’s trespass further enhances the argument for a lessor (i.e. non-lethal) and more proportionate property defense by the mother

• The child has no means to remedy the trespass and remove themselves from the womb.

Owing property does not give one full and immediate 007 “license to kill” status.  As we have shown, a baby is considered a trespasser only by the strictest of definitions based upon a woman’s inalienable will and right to change her mind.  As such, any efforts to eliminate the non-violent trespass must be in proportion to the crime.  Aborting the unborn child is guilty of what Rothbard noted as the erroneous “maximalist” position, and can only be considered a proportional response in those rare cases where the mother’s life is in danger.

The woman must fulfill her positive obligation — to at least act to safely remove the child out of her body (property), and also transfer guardianship responsibilities

The proposition that a libertarian free society could require positive obligations may seem contrary to both a core belief in natural/negative rights, and a complete rejection of positive rights.

Both even natural rights torch-bearers Rothbard and Block admit there can be instances where an individual can have positive obligations, and legally forced to act.  This is the case with requiring restitution to victims of your crimes (Rothbard), or dropping the child off for adoption (vs leaving wherever eviction occurred; Block) or a surrogate mother being forced to carry to term per contract (why not just require her to return any upfront money?; Block).

When can a positive obligation exist?

According to Stephan Kinsella, if they have been voluntarily incurred.

• By crime (restitution)
• By tort (pushing in a lake, duty to rescue)
• By action (engaging in sex and having a child, parental obligations)
• By word – as noted in the Rothbard’s title transfer contract theory

Let us consider the case of a mine operation. A group of miners work far below the surface and one man working as the air pump operator on the surface of a mining operation.  The surface man, understanding the dangers to the miners below and the terms of his employment contract, explicitly agrees to remain on guard in case of mechanical issues to the pump while miners remain below surface.  One day, out of boredom he decides to walk off and quit the job mid-shift.  The pump runs out of fuel and the miners below die from asphyxiation.

A second less mortal scenario can be posed with a bank vault’s night security guard.  A would-be thief approaches the guard.  The thief presents no physical threat of any kind, but offers the guard $100,000 to simply not act – – to not interfere.  The guard consents, provides no aid to support the thief, and stands idle as the thief proceeds to steal millions out of the vault.

Expanding along the themes where we place our person/property in the care of another, we can include other professions such as surgeon, pilot, cab/bus/boat/train driver, transplant organ couriers, babysitters, hospital owners, and numerous others.

Are these simple cases of someone expressing their inalienable will and walking away from an action they no longer wished to perform, or is there something here that rises to the level of criminality?  I would advance the latter.

Our proposal is that voluntary agreements can impose legal, positive obligations to act in cases where a specific criteria is met

• Voluntary consent and action is taken such that another party’s property is now dependent upon your guardian efforts

This criteria was met in both our mine and bank vault scenarios.  The pump operator and vault guard (1) consented to the terms knowing the property/lives of others would be in their care, and (2) took action to place the other party’s property in a state of dependency upon their guardianship.  The pump operator and security guard failed to act based upon non-exigent circumstances.  This failure to act directly caused severe violations of property to their contracted parties.

Let us now change our scenarios a bit and suppose that an exigent situation (e.g. life threatening emergency) arose in either of our cases.  As example, the thief holds a gun to the head of the guard forcing him to hold still.  Are these property guardians still obligated to act even at their own mortal peril?  Of course not.  Drawing upon our proportional defense/punishment theory, we advance that a similar principle is applicable for positive obligations as well.  A valid positive obligation becomes void in cases where fulfilling the act will cause a violation to guardian’s property which will be proportional or higher than the violation to the dependent party’s property.  Hence our earlier summary statement qualification that killing the unborn child via abortion would only be legally allowed in cases where the mother’s life was in danger.

In summary, like the mine pump operator or bank vault guard, the pregnant woman has incurred a valid positive obligation.  As such, she must either fulfill that obligation and/or transfer the person/property into a safe and sustainable situation (e.g. give up for adoption).

The “Right to Life”

This article (and libertarianism in general) attempts to avoid the phrase “right to life”.  Again referencing Rothbard:

The anti-abortionists generally couch the preceding argument in terms of the fetus’s, as well as the born human’s, “right to life.” We have not used this concept hi this volume because of its ambiguity, and because any proper rights implied by its advocates are included in the concept of the “right to self-ownership”—the right to have one’s person free from aggression. Even Professor Judith Thomson, who, in her discussion of the abortion question, attempts inconsistently to retain the concept of “right to life” along with the right to own one’s own body, lucidly demonstrates the pitfalls and errors of the “right to life” doctrine:

In some views, having a right to life includes having a right to be given at least the bare minimum one needs for contin­ued life. But suppose that what in fact is the bare minimum a man needs for continued life is something he has no right at all to be given? If I am sick unto death, and the only thing that will save my life is the touch of Henry Fonda’s cool hand on my fevered brow, then all the same, I have no right to be given the touch of Henry Fonda’s cool hand on my fevered brow. It would be frightfully nice of him to fly in from the West Coast to provide it. . . . But I have no right at all against anybody that he should do this for me.

In short, it is impermissible to interpret the term “right to life,” to give one an enforceable claim to the action of someone else to sustain that life.

It is important to quickly restate and emphasize our points of agreement, as well as disagreement with Rothbard’s position above.  The Henry Fonda scenario provides a clear distinction where a positive right/obligation would not properly exist.  Liberals will erroneously try to use a similar line of argument when they claim people have a right to life such that society owes everyone “a basic safety net”.  What this means in reality is persons and/or property are enslaved by the state and redistributed to others without the owners consent – – A.K.A. complete violations of the non-aggression principle and natural law.

We have already highlighted the disagreement above in our expanded explanation of proportional defense and also valid positive obligations.

Defensive violence to stop aggression against an innocent third party is both moral and legal

It is interesting to hear many libertarians who will agree that the unborn child is a human life with full rights and that abortion is immoral, but don’t believe it is proper to deem it illegal.  As was noted by Butler Shaffer:

Because of my disapproval of all political systems – which are universally defined as agencies that enjoy a monopoly on the use of violence within a given territory – I am unwilling to sanction the use of violence to either (a) physically prevent, or (b) punish a woman for having an abortion. At this point, I am often asked “are you saying that, in a society grounded in liberty, people are ‘free’ to kill one another?” My answer is “yes.” Even in our present command-and-control world of legalized violence, each of us is “free” to kill – or as a friend of mine once modified the proposition – “free to try to kill” – others. Such “freedom” does not mean that we may rightfully or morally do so, only that we have the capacity to inflict harm upon others. From a libertarian perspective, the question becomes (as it does in our daily lives): how do we exercise our freedom so as to minimize harm to others?

 In my view of the world, a pregnant woman will make her own decision as to whether to abort. I may disapprove of the decision she makes, but I will not resort to – nor sanction – force against her to make her conform to my value. I ask only that she be willing to defend my freedom to make choices in the world.

Are Shaffer and these other libertarians pure pacifists (e.g. Tolstoyians), advocating no defensive legal violence whatsoever?  Typically that is not the case, as these same libertarians eagerly submit that murder, rape, enslavement, theft, and a few others would be universally outlawed in a libertarian society.  Even an anarchist society would still have law; laws which allow the legal use of violence in defense of innocent person and property.  Libertarian law would align to natural law, protect the innocent, and would be enforced personally and/or via voluntarily funded free market mechanisms.

 

Perhaps the dispute centers around the belief these anti-abortion laws  involve people improperly coming to the defense of another?  But even the pro-choice Rothbard clearly sees legitimate libertarian justification both in defending oneself, but also in coming to the to defense of others.  As he notes in the Ethics of Liberty (Ch 13: Punishment and Proportionality)

“Many people, when confronted with the libertarian legal system, are concerned with this problem: would somebody be allowed to “take the law into his own hands”? Would the victim, or a friend of the victim, be allowed to exact justice personally on the criminal?

 The answer is, of course, Yes, since all rights of punishment derive from the victim’s right of self-defense.”

Or here as Rothbard notes again here in the case of volunteers coming to the assistance of other rebels) – – both his examples include the caveat that we must be held to legal account if we are not justified (e.g. join a manhunt which jails the supposed thieves which later are shown to be the rightful property owners).

It begs the common debate question – – if we would outlaw a mother’s murder of her 30 year old child, or her 3 month old child, why not afford the same protection to the unborn child as well?  In the end, perhaps it is my own intellectual failure to understand the hesitancy shown by Shaffer and other libertarians to support anti-abortion laws.

What about pregnancy as a result of rape?

We should now consider the extremely small percentage of cases (0.01%) where this unborn person was not placed in the womb via a mutually consensual act (i.e. rape).  Is it consistent with natural law and basic human morality to claim the right to kill someone, which, who by no fault of their own, finds themselves viewed as an unwelcome invader to your person or property?  In this scenario, the mother has not consented/invited the baby into her body, it is only the biological father which has committed a horrific and violent crime.  Are we as libertarians advocating a society where it is permissable to kill the child for the sins of their father?  As Judge Andrew Napolitano again notes:

What about rape? Rape is among the more horrific violations of human dignity imaginable. But it is a crime committed by the male, not the female – and certainly not by the child it might produce. When rape results in pregnancy, the baby has the same right to life as any child born by mutually loving parents. Only the Nazis would punish a child for the crimes of his or her father.

A common analogy used by the pro-choice crowd is that of the healthy person waking up one morning and finding an unconscious person has been attached to their kidney/endocrine system by a third party; and the attached person will die if detached.  They then pose the argument – – is the healthy person to become a slave forever obligated to keep this person attached and alive?  The pro-choice argument is analagous to abortion/rape in that the neither the body owner nor the attached person consented to this state of affairs and corresponding trespass.

I concede the raped pregnant woman gave no consent and thus incurs no valid legal positive obligation to fulfill or transfer the trustee/guardian.  However, there is still an argument for proportionality in defense/punishment.

We aren’t actually talking about a choice between a lifetime of slavery vs. obtaining freedom only by killing an innocent.  What we are talking about is temporary slavery, and that can make a big difference in our proportional legal options.  To draw an alternate scenario, let’s say that our healthy person wakes up and

• they are initially unaware of the attached person on their kidney
• they are surrounded by a team of surgeons frantically working
• the surgeons first assure them that their life and health is not at risk
• the surgeon’s further explain that an innocent person’s life is at risk due the illegal and horrible actions of a third party, and specifically they’ve been temporarily attached to a person relying on their endocrine system
• the surgeons then explain they are all actively working to detach the person from their person and onto a dialysis machine, which will take only 20 more seconds to complete, and…
• if the healthy person will just hold on for that 20 seconds, they will be free from this trespass/enslavement, and the innocent sick person will survive as well

In this modified case of temporary enslavement (only 20 seconds), what is a proportionate punishment that the body owner could legally impose on the unconscious, non-violent sick person who is a trespasser only by the strictest of definitions?  What should be the legal implications if the healthy person, knowing all the facts, decides they want to grab a blade and immediately cut the connection (killing the sick person)?

Based upon a matter of degrees, a similar analogy could be considered in our case of pregnancy via rape not allowing abortion, but rather allow eviction only after viability could be achieved (i.e. 5th month of pregnancy).

Responding to Other, Specific Libertarian Concerns

Save all fertilized eggs?

Pro-choicers sometimes suggest that the anti-abortion crowd should focus their legal and philosophical energy elsewhere.

‘Should we try to stop all natural embryonic implantation failure?‘

This is the question and argument as offered by the libertarian website Reason.com and mainstream Communitarian Michael Sandel for consideration by anti-abortionists.

“So millions of viable human embryos each year produced via normal conception fail to implant and never develop further. Does this mean America is suffering a veritable holocaust of innocent human life annihilated?”

It is understandable that an organization like Reason, and an individual like Sandel could be confused on this scenario.  They both seem to have only a surface level understanding and/or adherence to the non-aggression principle and natural rights, while generally preferring Utilitarian ethics.  While healthy, fertilized human eggs failing to implant can easily be seen as a moral or humanitarian concern, it can hardly be considered an act of aggression and within the scope of a proper political/legal ethic.  A better analogy here might be those dying of malnourishment in third world countries (except even here, it can be argued they are malnourished because of state aggression).  I would not be alone in stating, while these failed pregnancies should/could not involve any legal use of defensive violence, I would welcome a time when our economic and technological progress improved the survival rates of all humans – – including those just conceived.

Another point presented in this article is to highlight the difference in subjective value and practical emotion we tie to different kinds of human life.  Do we mourn the death of an 8 year old child more than the fetus?  Do we mourn the 8 year old child more than the 98 year old grandmother (who “lived a long good life”)?  I concede their point, and add “so what?”.  Do emotion and subjective valuation have a consideration to play when it comes to law and political ethics?  Or do we adhere to the principle of equality under the law for all human beings?  We may mourn less for the 40 year old hobo with no friends, family or estate, but that does not provide him with less individual rights and freedom from aggression.

As a quick side point, I find it peculiar that most Minarchists have apparently not realized or explained their inherent contradiction.  Why is the NAP and self-ownership never to be violated when it comes to the mother and abortion – – even if they concede it will kill a biological human child – – yet NAP/self-ownership violation in the form of taxation is acceptable in order to provide state protection services?  The only semi-defensible position seems to be held by those which honestly believe the unborn is not alive yet; a belief not based upon science as we have shown above.  Perhaps this is a topic for another time and expanded discussion.

Evictionism

As documented in the assertions and conclusions above, there are at least a couple major problems with Block’s Evictionism proposal.  First it seems to violate his and Rothbard’s own rule that there can be no compromise, no conflicts of truth or rights.  He recognizes both the child as human self owner with freedom from aggression, and also the woman’s self ownership and inalienable control of her body.  As part of his Evictionism, he proposes a compromise where the woman is always allowed to evict, but she is never allowed to act to directly and physically harm/kill the child.  Here lies the heart of his contradiction; he proposes Evictionism is allowed at anytime – – even during the first trimester before the child could possibly be viable outside the womb.  Based upon the facts noted above (mother’s consent brought child into dependency; child has no mens rea and no means to rectify), Block is now violating his and Rothbard’s principle of proportionality in defense/punishment.  He is explicitly suggesting that is indeed proper to use any level of violence necessary to stop the crime while it is being committed.  Evicting a “trespassing” child into certain death is even more abhorrent than his position that it is legally acceptable to shoot the bubble gum thief in the back as he tries to run out the door.  Additionally, I am not certain if Block has indicated whether the mother has any positive obligation to ensure second and third trimester babies are evicted only to a safe, sustainable environment (i.e. could the mother go to the woods, evict, leave, and thus ensure the baby’s demise?).  To this point, we also see Block’s own inconsistent views on endorsing some positive obligations (e.g. restitution, surrogate mothers must bring baby to term) which do not reconcile to his assertion that the pregnant mother does/could not incur a positive obligation as guardian to at least deliver and give up for adoption.

In conclusion

In 100% of pregnancies, the baby – –

• is a human being with full self ownership and natural rights
• has no prior intent or current knowledge that they entered and remain in the woman’s body as an unwelcomed guest or trespasser.  The baby had no mens rea (guilty mind/intent) which is an almost universal consideration for any criminal consideration
• has no physical means of understanding their trespass
• has no personal capability to alleviate their technical aggression

Additionally, in 98%+ of pregnancies – –

• the baby was essentially an invited or permitted guest into the mother’s property/body (via consensual sexual activity)
• the baby poses no significant physical threat to the mother’s health (i.e. is not an violent aggressor)

Abortion is simply not a proportional, legal action given the relevant facts and principles.

A free and just libertarian society will outlaw all abortion except to save the life of the mother.  

The anti-abortion argument is based upon proper and consistent adherence to

• natural law
• non-aggression principle
• self-ownership
• proportionality in defense/punishment
• valid positive obligations
• and scientific fact

Conversely, we have also shown how the pro-choice position is inconsistent and confused to one or more of these principles.  

Abortion will certainly remain an emotional and difficult topic for all persons, but I hope this paper raises legitimate and provoking questions which will help to continually refine our views towards a fully just and moral libertarian philosophy.