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The Right to Abortion: A Libertarian Defense

by Sharon Presley and Robert Cooke

In developing a philosophical base for the morality of abortion, most libertarians would seek to use some theory of natural rights. We concur with this approach but differ with the particular view of natural rights commonly held among libertarians today. This view is an essentially Lockean economic one that posits control of one's body based on self-ownership. The rights of life and liberty are, then, aspects of a kind of property right to one's body.

Some people may question the need to argue an alternative theory of natural rights, especially in an article on abortion. However, we have found that serious problems arise out of the propertarian model. In particular, the question of abortion does not resolve itself unambiguously under the "self-ownership" model.

We will mention here certain general problems involved in the Lockean model (but in outline only, as a more elaborate discussion would be out of place). For instance, we recognize that any kind of physical property--be it animal, vegetable, or mineral-is a thing, not a person. Abolitionist Theodore Weld's definition of slavery--"holding and treating persons as things"--expresses the point exactly. Yet, the Lockean theory of rights holds that we are, in fact, property. To be sure, we each own ourselves; this still leaves us with the curious equation that self-slavery equals liberty.

This seems a small matter practically, only a detail to be cleared up, or ignored. But a few such theoretical trifles in physics caused new paradigms (relativity, quantum mechanics) to supersede the old (Newtonian physics) in a mere two decades; a few such loose ends may be more than the theory of self-ownership can tolerate. For example, if "self-ownership" is merely an argument by analogy, then it really only approximates, or substitutes for, a working theory. Actually, proponents of the Lockean theory have clearly meant "self-ownership" literally. But why create such a concept in the first place? The physical body, after all, is not separate from the psychological self; they are both aspects of the same entity, the same process of existence. And if there is no discrete "self" owning a separate body--and short of the supernatural, there cannot be--then the concept of self-ownership dissolves into the absurdity of a "self" owned by the same self, ad infinitum. We find it simpler to accept the idea of a whole person, who acts and who is not reducible to smaller selves.

Furthermore, if rights are property, then inalienability may mean only that a person must consent to any disposal made of his or her rights. As property can be alienated (in the legal sense) by consent, so may rights be when defined as property. (Many natural rights theorists, from Hugo Grotius onward, have supported this argument.) The proposition that a person can enter slavery by voluntary agreement, though utterly repugnant to us, is not easily--if at all--refutable within this frame. This, as David B. Davis concluded (in The Problem of Slavery), "was the fatal flaw in the traditional theories of natural rights."

A contrasting view of natural rights defines them as the protectors of individual conscience rather than of property. Human beings are free moral agents and their liberties derive from the right of self-determination. Such rights, once we grant their existence, are not by nature transferable. This was the liberty of conscience of the English Dissenters, the "inner light" of the Quakers, the "individual sovereignty" of Josiah Warren, the "moral accountability" of the abolitionists, and was, far more than property, a motive behind social and religious revolt from the Middle Ages onward. A person is a moral agent by virtue of having and being aware of the possibility of choice (that is, the capacity to choose and act). The whole person is the self and the actor.

Our discussion of rights commences with this definition of a person as a being with rights, as a free moral agent. From this concept we derive both the general nature of rights and particular arguments in support of a woman's right to abortion.

The Lockean model of rights uses the term "freedom" in the sense of control over the finished product of human activity; by contrast, the sense of liberty defined by self-determination is the control of choice in human life and development. A person--a free moral agent--has the right to choose the process as well as the product: the right, that is, to make the choices believed necessary to a desired emotional or psychological, as well as purely physical, condition. (The right to control one's body is meaningless, after all, without the right to control how the body affects the rest of one's self.) No obligation rests on anyone else to provide the means to effect these choices; indeed, quite the reverse is true, for the ability to recognize or create choices is part of being a free moral agent. But to interfere with self-determination --life, liberty, and the pursuit of happiness, to follow Jefferson rather than Locke--is to deny the human capability of moral agency, to treat a person as a thing. When such interference occurs on a regular or systematic basis, as exploitation for political or economic ends, we give it a name: slavery. Chattel slavery is the variant that necessarily involves the continuous and direct physical control of the individual's body. It includes such forms as the former race slavery of the United States, the forced labor camps of the Soviet Union, conscription anywhere, and--as we shall argue--proscription of abortion.

The basic issue: a woman's right to self-determination

Those who believe abortion to be morally wrong have focused all their attention on the fetus. In their view, the rights of the woman and the consequences to her life and well-being are secondary to the alleged right of' the fetus to life. In contrast, we maintain that the proper focus is the woman and that the real issue is her right to self-determination. It is the woman who has the prior moral claim because she is the already-existing free moral agent. It is her life, her body, and her physical resources that are being claimed, not the other way round.

In the model of rights we are suggesting, the woman's right to self-determination includes not only the right to control her physical body and all that happens within it, but the psychic and existential components of her life and well-being as well. That is, she has the right to make choices about how her body will be used to further her own happiness and self-interest.

In the case of an unwanted pregnancy, the existential choice for a woman is not abortion vs. no abortion, but, as Garrett Hardin has pointed out, abortion vs. compulsory childbearing. (See his Mandatory Motherhood for a biologist's look at the case for abortion.) If others can force her to be a mother (and she is the biological mother even if she does not raise the child), then she is coerced into putting her body at the disposal of the fetus as if she were an unclaimed natural resource or a chattel slave. Even if the fetus is removed and raised separately, she is still forced to be the manufacturer, the baby machine. Thus, the woman's most fundamental right of choice, the right to control her own body and happiness, is being abrogated.

Seeing the issue only as "control of one's body" rather than as self-determination--that is, emphasizing the physical body to the exclusion of the psychological self--can seriously sidetrack the moral question, and weaken the libertarian case for abortion. Two arguments that have been suggested in libertarian circles fall prey to this problem.

The idea of the body as property, for example, has led some libertarians, such as Murray Rothbard and Walter Block, to use a "trespassing" analogy. In this view, the fetus is a trespasser on the woman's property, i.e., her body, and she therefore has the right to eject it. In response to this argument, anti-abortionists assert that the act of trespass alone is not sufficient justification for killing the trespasser. We could not, they say, throw a stowaway out of an airplane just because s/he is a trespasser. Rothbard answers that "stowing away" in another's body is a much more serious offense and does merit ejection.

While we agree with Rothbard's conclusion, we do not think the trespassing analogy is the best way to reach it. Analogies are imperfect at best, but this one just does not fit well enough to be useful. It is a classic example of two conceptual problems rampant in libertarian thinking: property fetishism and economism, i.e., insisting on describing all concepts in economic terms, whether appropriate or not.

First of all, as we have said, the body is not and cannot be property, except under a system of slavery. More important, the fetus cannot properly be considered a trespasser, because inherent in the standard definition of trespasser is the concept of a conscious person who intentionally enters the property (though not necessarily with the express intent to trespass). But the fetus is not, as we shall attempt to show later, a conscious person and therefore is not capable of intentional action. (Rothbard does not, of course, attribute consciousness to the fetus, but he fails to recognize the danger of using an analogy with such a glaring flaw.)

The trespass analogy concedes too much and can lead to the second fallacious argument, which is far more insidious. Block, for example, maintained in his 1978 article that "the trespassing fetus should be removed in the gentlest manner possible ....If and when medical science devises a method of abortion which does not kill the fetus (this has already come to pass in some limited cases) then it would be murder to abort in any other way." Thus, argues Block, if the fetus can be removed without killing it, it should be raised independently of the mother. Only if no one else is willing to raise it could the fetus legitimately be killed.

Although Block made this claim in an article that is allegedly pro-abortion, the argument is, in fact, anti-abortion. In the not-too-distant future, technological progress will make it possible to remove the fetus at any point in the pregnancy after conception. Thus, following Block's line of reasoning, the time will come when abortion will always constitute murder. Indeed, many of the recent legislative proposals drafted by anti-abortionists explicitly require that every effort be made to keep all fetuses alive, and that the woman forfeit all claim to it if it lives; some of these measures have been enacted into law.

In thinking that his position is pro-abortion, Block fails to recognize (or else discounts) the real point of abortion--not that the woman does not want to be pregnant, or that she does not want to raise a child, but that she does not want to bear this child. If the fetus is removed and raised independently, as Block suggests, the woman is still the biological mother with all the psychological significance that implies. She has still been forced to be the baby machine. But, we maintain, a woman's right to self-determination includes the right to refuse to bear a child as long as that choice is still physically open to her.

Thus, even if the fetus were a person, it could not justifiably claim a right to live at the expense of the woman's resources or her right to self-determination.

Is the fetus a person?

The anti-abortionists rest the bulk of their moral case against abortion on the assertion that the fetus is a "person" and therefore entitled to the same rights as born human beings. Thus killing a fetus is killing a person and is therefore murder. If the fetus is not a person, the case against abortion fails.

Yet in spite of the crucial importance of this concept, libertarian anti-abortionists never define the word "person" in any intellectually precise sense. Their usage is sloppy and confused, shifting in its implicit definition from article to article. Usually they employ the word as if it were synonymous with "human being," a mistake also made by Block in his 1978 article on abortion.

Their usage of the term "human being" is, in turn, sloppy and imprecise. The anti-abortionists fail to distinguish between two different senses in which "human" is used--biologically or genetically human, and psychologically human. Marshaling evidence to prove that the fetus is biologically human, they think this automatically proves that the fetus is a person. One Libertarians For Life article even goes so far as to claim that the issue of whether the fetus is a person is a purely biological question, an assertion that would surprise philosophers, psychologists, and lawyers of the last few thousand years. But in spite of the earnest desire of the anti-abortionists to emulate Humpty-Dumpty and make words mean what they want them to mean, the term "person" does not have the same definition as "biological human being."

To blur the distinction between biologically and psychologically human is a useful trick for the anti-abortionists, since the fetus is obviously genetically human. That is, the information encoded in the DNA of the fertilized egg in a woman's body will tell the egg how to develop into a human being. But this fact alone cannot have moral significance. Since every cell in the body has the same genetic information, it is theoretically possible to clone a human being from any cell. But no one would argue, for example, that it is murder to destroy skin cells. The anti-abortionists would argue, of course, that the fertilized egg is different from all other cells. We will discuss later the sense in which we think they believe it to be different.

To further bolster their implied claim that there is no significant difference between the biologically human fetus and the psychologically human child, the anti-abortionists insist that the fetus is not part of the woman's body. It is, they assert, a separate entity in a symbiotic relationship with her but is not part of her. Although the fetus and the woman have different physical structures, the fetus is not an independent member of the species. It is not only physically attached to the woman, it is metabolically dependent on the woman's system. It does not pump its own blood; it does not do its own breathing; it does not have a separate (or any) consciousness. To say that the fetus is a separate entity as if it were the same as a completed, self-sustaining structure simply makes no sense even in biological terms.

The clear dependence of the fetus on the woman has led Rothbard to argue that the fetus is a parasite and therefore may properly be ejected. Just as the State and ruling class can be called parasites on the productive forces in society, he says, so can an unwanted organism feeding off the body of a person. The anti-abortionists respond by pointing out that, biologically speaking, a parasite is an organism living in or on an organism of another species and comes from an outside source.

The problem here is that Rothbard is using the term as an analogy while the anti-abortionists are taking it literally. As a metaphor, there is some merit in Rothbard's argument, especially since pregnancy can be detrimental to a woman's health just as a parasite can (see Cheriel Jensen and Lynette Perkes' amicus brief in the cases leading to the 1973 Supreme Court decisions, for a detailed exposition of the argument against the coerced use of a woman's bodily systems). But using a biological analogy in a biological context is just asking to be taken literally. If the analogy is not exact, as in this case, it is unavoidably misleading. We prefer to argue from a different base.

When the anti-abortionists are not putting forth their biological definition of "person," they go along with one prevalent in libertarian pro-abortion circles: "a person is an animal with the capacity for reason and choice." However, at least one anti-abortionist, Edwin Vieira, Jr., criticizes this definition, claiming that what constitutes "rational thought" is not spelled out nor is it clear who will decide what is "rational." This criticism is ironic, considering that Vieira never makes his definition of "person" any more precise than those he criticizes.

Vieira's criticism begs the question, since the term "rational" in this definition does not mean "reasonable" or "correct." It is a philosophical term being used to describe a general cognitive faculty, not to characterize a particular result. Whether a specific action is "reasonable" may be open to debate, but the possession of the power of cognition is a directly observable behavioral phenomenon.

It is, however, possible to define what is meant by the term, "person" in more precise terms than simply the term "rational." In addition to the requirement that the organism be genetically human, there are several interrelated major aspects of "personhood" that are generally agreed upon by philosophy and psychology. "In a general philosophical sense," says the Oxford Unabridged Dictionary, a person is "a self-conscious or rational being." Reason is "the intellectual power or faculty which is ordinarily employed in adapting thought or action to some end." That is, a person is an organism that can engage in what psychologists would call "purposeful action" and philosophers would call "making choices."

From a psychological point of view, the necessary condition for rationality and self-consciousness is the capacity for cognition--that is, the process of integrating perceptions and sensations into a mental organization, which in turn enables the individual to engage in intentional, purposeful action and other intellective activities, including remembering, etc.

But none of these faculties can be manifested until after birth. The perceptual process necessary for cognition can begin only when the organism is subject to outside environmental stimuli, that is, when there is something to perceive. In the uterus, a strictly limited sensory environment, only the most primitive level of sensations and reflexes is possible for the fetus. Sensory deprivation experiments with isolation tanks (an environment similar to the uterus) have shown that, even for cognitively functioning adults, the perceptual field dwindles to almost nothing under such conditions.

Birth is also the point at which purposeful action can begin. "The birth of the child is marked by two fundamental changes in his functioning," say child psychologists Mussen, Conger, and Kagan. "He is now subjected to states of imbalance, deprivation, or discomfort that must soon be repaired and he encounters a variety of events and ' experiences which shape his perception of the environment and his reactions to it. These states are important psychologically for they force the infant to do something to alleviate the discomfort." That is, to engage in purposeful action.

The argument that a newborn infant is not rational or cognitive, thus leaving the door open for infanticide, stems from ignorance of infant psychology. The fact that a newborn cannot discuss the nuances of economic theory does not mean it is not functioning cognitively.

"The newborn is a remarkably capable organism from the moment he begins to breathe," say Mussen et a. "He can see, hear, and smell and he is sensitive to pain, touch, and change in position .... The infant is biologically ready to experience most of the basic sensations of his species from the moment he is born ... Contemporary psychology views the newborn with considerably more respect than the scientist of the 16th century who saw the infant as relatively insensitive. We have exploded the myth of newborn insensitivity and incompetence."

The anti-abortionists try to get around these differences between fetus and infant with one of two assertions. Some say that the difference is only one of degree, a notion that is contrary to the findings and conclusions of developmental psychology, as we have seen. Or else they try to claim that there is no significant difference in value between potential capacity and actual capacity to be a person. This idea flies in the face of most human experience. People do see a difference, in most cases, between the information or parts needed for a structure (the DNA or fetus; the plans or materials for a house) and the completed structure (the infant or the house). The potential, after all, is only the hypothetically possible. The potential capacity will become actual only under the necessary and sufficient conditions and therefore cannot be assigned the same current value.

To discredit the criterion of "actual capacity" as opposed to "potential," anti-abortionists also argue that comatose or retarded individuals are "not capable" of rationality or choice (or cognitive functioning), yet we all agree that they are persons and we cannot justifiably kill them. This argument betrays a misunderstanding of what the concept "definition" means as well as the concept of "person." The definition of a particular kind of entity describes the unique characteristics of an entity in its normal state. Partial fluctuations from the norm do not change the essential nature of the entity. A car does not cease to be a car because its brakes don't work. If the impaired condition of comatose or retarded persons could be corrected, they would function cognitively, since all the necessary apparatus is otherwise already developed. (Retarded persons do function cognitively, but at a lower level than the norm.) But a fetus in its normal state does not function cognitively or make choices. Just as the unassembled parts of a car are different from a car with broken brakes, so a fetus is conceptually different from a comatose person.

Thus, the fetus is not self-conscious, cannot function cognitively, and is not capable of purposeful action; it is therefore not a person in any commonly accepted philosophical, psychological, or legal sense. The anti-abortionists have presented no objective evidence that the fetus fulfills any of these criteria; they can only assert that it can potentially fulfill them. Therefore, to call the fetus a "person" makes the term meaningless.

But the anti-abortionists do argue that the fertilized egg, even immediately after conception, is imbued with something special that makes it unique and a person. "The critical fact of life that is accessible to any rational study, of course [sic] " says one Libertarians For Life essay, "is that we are each of us the same unique identity that we were a year ago, or at birth, or at the moment of conception. The prima facie case is that the 'I' was always 'me'." But what can this mean objectively? To speak of an "I" in an entity that has no self-awareness is a meaningless statement, a null set. We can speak of a core set of memories and traits that continues throughout the life of a person once a personality has been established, but the only provable "identity" that remains the same from conception onward is the genetic encoding in the DNA. If the anti-abortionists wish to claim otherwise, the burden of proof rests on them. So far they have only asserted their alleged prima facie case and offered no evidence.

We maintain that they cannot offer such proof because none exists. If there is no objective evidence that the fetus possesses the psychological qualities that define "person," then the anti-abortionists are left with asserting that the fetus has a special "something-somehow" that imbues it with personhood, or, to say what they really mean: a soul. But the soul is an unprovable mystic/religious concept that is inadmissible in a general libertarian ethical philosophy or in a society that maintains a separation between church and state. People are free to believe in such religious concepts if they want, but they have no right to impose them on others, as the anti-abortionists are trying to do.

Two questions remain: at what point does the fetus become a person? And, until what point is abortion morally allowable? Libertarians have quibbled endlessly over the question of when the fetus actually becomes capable of rationality and therefore a person. The fact that there is no exact biological point of change that can be ascertained has presented a slippery problem for those who base their moral case on biological or even psychological criteria. Regardless of the (undefinable) point at which a fetus could, if separated from the woman, become a person in the sense we have defined it, the second question can be resolved only on ethical and philosophical grounds--not biological ones.

We maintain that a woman's right to self-determination logically entails the right to control her pregnancy totally until the point of birth, dictated by natural forces; that is, until the onset of labor directly resulting in a normal or premature delivery or Caesarian section. This includes the right to terminate the life of the fetus during the abortion procedure, at any time prior to delivery. If the woman's life is endangered during labor, she has, of course, the right to kill the fetus even at this point.

To argue that using the point of birth as the dividing line between fetus and person is arbitrary is to argue that reality is arbitrary. One might say that birth is nature's way of asserting that the fetus is ready to become a person. Rothbard has pointed out also that by defining the fetus as a person the anti-abortionists have reduced birth to an almost trivial event, like adolescence or "mid-life crisis." He is quite right in arguing that such trivialization is absurd. Just the psychological changes alone, at birth, make it a far more significant event for the newborn than anything that happened during pregnancy.

However, there is a crucial philosophical difference that occurs at birth. At any point prior to the action of natural forces, the only legitimate way the fetus can be removed from the woman's body is for her to make the choice to initiate the action. Because the natural process is not yet completed, she is still in control of it. She can still make a choice to bear the child or not. But once natural forces initiate the birth process, the situation is beyond the woman's control and beyond moral choice. She simply is a mother, whether she wants to be or not.

If a woman has a right to abort a fetus at any point prior to birth, this also implies the right to terminate the life of the fetus as well. Abortion is not a discrete act; it is an ongoing process that begins within the. woman's body and continues outside it. If she has a right to the procedure of abortion, she has a right to the entire procedure--otherwise the so-called right is meaningless. Since the purpose of abortion is not just to terminate the pregnancy but to avoid bearing the child, what is necessary is not just the removal of the fetus (otherwise she could just bring it to term and give it up for adoption), but its death.

One additional ethical consideration remains. Tibor Machan and others have argued that the husband (or the man who contributed the sperm) has a right to a say in the matter of abortion. But the man has no right to be a father against the woman's wishes. If she does not want to be a mother, then to insist that she produce a baby for his benefit puts her in the position of a chattel slave. The woman has the right, however, to choose to be a mother even if the man does not want to be a father. Since her bodily systems produce the baby, her right to self-determination requires that the choice ultimately be hers and hers alone. If she elects to make a solitary choice, of course, the ensuing responsibility for the child is morally hers alone also.

Physical, psychological, and social consequences of interference with abortion decisions

The anti-abortionists, we believe, have elevated the principle of "life" to the level of a mystical floating abstraction independent of any connection with the lives of actual individual people in the real world. To call for the survival of "life" at any cost, without regard for the quality of life for actual living individuals, is to live for the sake of morality rather than the other way around. The principle becomes a religious dogma, absolute and untouchable, sacred for its own sake rather than because it will benefit individuals.

To the anti-abortionists the physical survival of an entity that cannot yet even experience emotions, cognitions, or even physical pain, is of more consequence and value than the emotional and physical well-being of an already-existing adult for whom unwanted pregnancy will bring great emotional and psychological pain (and possibly even death from an illegal abortion).

Such a position is, as Mike Dunn suggests, "tantamount to the classic example of Randian sacrifice: the surrender of a higher value (the autonomy and well-being of a living person) for a lesser value (the biological survival of a pre-human being)." We maintain that such a position makes a mockery out of the concept of the value of life.

But if rights and principles are, as we maintain, interpretations of the relationship between ourselves and the world of reality, then we have the right to judge the reasonableness of these constructs by their results on our lives. If the principles we espouse result in immense human misery, we may justifiably ask ourselves if these principles are false and reexamine them in a new light.

If we examine some of the actual physical, psychological, and social consequences of abortion on the one hand, and of unwanted pregnancy on the other, we will see that the consequences for the woman are of a far greater magnitude than for the fetus.

If an abortion is performed, the actual consequences to the fetus are cessation of certain physiological functions such as heartbeat, and cessation of a primitive level of sensations and reflexes. Because the fetus has neither cognitions nor self-awareness, it cannot have emotions and cannot be said to suffer in the same sense as born humans. Furthermore, research has shown that, even as late as 28 weeks of gestation, the fetus is insensitive to pain (see Mussen et aL). No sensation the fetus is capable of could in any way be comparable to the complex network of emotional, psychological, and even physical pain that a cognitive functioning individual can experience.

Anti-abortionists refuse to take seriously the enormous psychological and emotional costs to a woman of bearing an unwanted child. They dismiss unwanted pregnancies as mere annoyances. But as one National Abortion Rights Action League leaflet has pointed out, referring to illegal abortions: "The urgency of women's need to end unwanted pregnancy is measured by their willingness to risk death and mutilation, to spend huge sums of money, and to endure the indignities of illegal abortions. Women only have abortions when the alternative is unendurable. Women take both abortion and motherhood very seriously."

Because many women do find the alternatives unendurable, they will continue to seek abortions, whether legal or illegal. But without recourse to legal abortions, most women will have to resort once again to back-street abortions, with the attendant greatly increased risk of infection or of dying in great pain from the consequences of unprofessional or self-induced abortion. In case anyone doubts this claim, it is a matter of public record that the mortality rate of illegal abortions is much higher than for legal abortions.

Without recourse to abortion, women and young girls who become pregnant as a result of rape will be subjected to the extreme psychological and emotional trauma of bearing a child fathered by a rapist, a hated aggressor. Many anti-abortionists cavalierly dismiss this situation, saying that the fetus is an innocent victim too and should not pay the consequences. They justify this position by claiming that the fetus pays a higher price if there is an abortion than the woman does if there is not. John Walker of Libertarians For Life, for example, trots out the cliche about "the hierarchy of life, liberty, and property" and argues that "Her costs of waiting nine months will be in property and in some liberty (assuming a 'normal' pregnancy and no psychological warfare from society), the child's [sic] cost will be life itself." Walker also adds, "it seems to me that the enforcer incurs obligations to recompense the mother for all her costs."

As if "all her costs" could even be economically calculated, let alone compensated! What a totally unthinking and callous attitude this comment betrays. Does Walker really believe the only costs are economic ones? Men such as Walker fail to understand the psychologically devastating effect of rape on women. Rape is a violent assault on a woman's psyche as well as physical integrity. Even for a grown woman, let alone an emotionally immature young girl, rape is a traumatic experience. To bear a child under such circumstances only multiplies the pain and anguish. To claim that this cost is less than the cost of stopping the biological functioning of a non-self-conscious entity is grotesque.

There can be other serious psychological and social consequences. An unwanted child may have unfortunate effects on the future life and happiness of the mother and of the family, too. It can present a financial as well as emotional burden that may seriously impair the woman's and the family's ability to pursue their own goals.

There can be negative consequences to the child as well. An unwanted child may become the victim of physical and psychological neglect and abuse, with all the psychological scars that will result from such treatment. Children who are loved and wanted are far more likely to be psychologically healthy than those who are not wanted.

Anti-abortionists seem to think that the solution to unwanted children is to give them up for adoption. Although some women would choose this alternative, most women find giving up a child far more psychologically traumatic than having an abortion. Furthermore, adoption is not the easy solution that the anti-abortionists claim. There may be a demand for healthy, white babies, but orphanages are filled with children who can't be placed because they are black, or physically handicapped, or retarded. For those children who remain in orphanages, the institutional treatment and lack of loving care are likely to be as psychologically destructive as if they were unwanted children who remained with their families.

Some anti-abortionists try to argue that one of the consequences of a social climate favorable to abortion may be a climate favorable to euthanasia and infanticide. This claim is, first of all, illogical, since abortion is an exercise of control over one's own body and destiny while infanticide and involuntary euthanasia involve control over other individuals. There is little sociological evidence to support the anti-abortionists' claim. "In countries where abortion has been legal for years," reports a NARAL paper, "there is no evidence that respect for life has diminished or that legal abortion leads to the killing of any persons. Infanticide, however, is prevalent in countries where the overburdened poor cannot control their childbearing, and was prevalent in Japan before abortion was legalized."

Some anti-abortionists even go so far as to suggest a sociological link between abortion and the mass murders in Nazi Germany. But this makes no sense, since Hitler was opposed to abortion ("Nazi ideals, he said, "demand that the practice of abortion shall be exterminated with a strong hand.") and indeed Nazi law made abortion a capital crime. The truth seems to be exactly opposite to such claims. A callousness toward the rights of adult, functioning women over their own bodies seems to be linked with a callousness toward human life in general--dictatorships routinely outlaw abortion.

Legal implications of interference with abortion decisions

Certain legal consequences seem to follow naturally from acceptance of the principle that abortion is murder and must be prevented. "Moderate" abortion interventionists may claim not to want these results, but even if they are not merely temporizing for obvious political reasons, the existence of more fanatical adherents to their ideology makes these scenarios likely.

The term "murder" is a legal as well as a moral one. Merely to disapprove of abortion as killing is not the same as to believe it to be murder. Assuming that the cry "Abortion is murder!" is not a totally empty rhetorical device, we should expect many (though not all) anti-abortionists to be abortion prohibitionists and to want abortion treated legally as murder. Logic and experience then suggest that we would have prosecutions for murder--of both the woman and the abortionist. Some prohibitionists favor prosecutions chiefly against the abortionist (presumably to deflect hostility they could otherwise expect from many women, but also to insure that patients can testify against the abortionist), but is the contractor less guilty than the "hit man"? Why are the women not murderers?

Abortion-murders would clearly be first-degree, since intent to kill and premeditation are obviously present. This aspect is never played up, if mentioned at all, in prohibitionist literature since many of their own supporters, let alone the "uncommitted", might find this idea unpalatable if taken literally. Too many people might also notice how many of the rabid proponents of the "abortion equals murder" idea are also rabid proponents of the death penalty. Does anyone feel a cold chill?

Pregnant women who engage in actions definitely or possibly harmful to the fetus--partaking of alcohol, nicotine, caffeine, or other drugs, for example--could be subject to charges of assault or criminal negligence. An immense state apparatus would be necessary in order to scrutinize such actions; any apparent miscarriage might be a devious attempt to commit the "perfect murder." The pregnant woman's emotional and psychological state can also affect the fetus. Shall she be required to see a psychotherapist if she becomes disturbed or upset during pregnancy? Describing measures to enforce all of the above as "invasion of privacy" is a study in understatement.

Anyone merely advocating or advertising abortion could be subject to murder-conspiracy charges. Libertarians may not believe in conspiracy laws, but our federal and state governments do. Presumably, it's not our fault if the laws forbidding abortion don't appear in a suitably libertarian form.

If any or all of the above appears absurd or monstrous, we readily concur, but we believe that the absurdity and horror lies in the prohibitionist argument. If prohibitionists recoil from these positions, the responsibility is theirs to explain why these alleged murders should not be subject to the penalties that murder receives at present. If abortion is not to be subject to the same penalties, then we suggest that prohibitionists should not identify it with murder. Prohibitionists are fond of the supposed logic of their position--why do they fear to finish their argument?

We must in the following discussion refer to people who support the passage or the retention of laws restricting and, especially, prohibiting abortion. They are commonly known as anti-abortionists or right-to-lifers, but the latter is an undeserved misnomer and the former confuses them with individuals who disapprove of abortion to a greater or lesser degree, but who will not interfere with another's decisions and choices. (This is a matter of personal morality with which we have no quarrel here) We therefore refer to our opponents either as prohibitionists or, if they believe in the regulation rather than the prohibition of abortion, as interventionists.

The prohibition of abortion is sometimes referred to as an unenforceable law--of course, it has been and would be enforced, but many women clearly do not and would not obey it. There is another sense, however, in which laws prohibiting abortion are unenforceable.

When we speak of law today, we ordinarily mean what is called the "positive" law of the state--this is law of the sort we are used to, statute law whose mere existence must command obedience because of the (presumed) ultimate sovereignty of the state over the individual. In the philosophy of "natural" law, however, only those laws whose justice is "self-evident" to humankind can exist (these need not be written codes, but may be only common law or an agreement of conscience on the part of the community.)

If the laws of' conscience and the laws of the community are to coincide--that is, if we are to have only the natural laws of individual sovereignty--then the best social conditions for natural law to be practically expressed will be where the same people who create and enforce any law are also those who must daily live with its immediate results. More than any other institution, the trial by jury, rooted in and drawing its strength and legitimacy from the community it protects, formerly served this function--deciding not only guilt and innocence, but also the fairness and justice of the laws.

Since any conviction requires unanimity of a group of citizens--who decide the law as well as the facts and who are themselves subject to social and economic pressures from their neighbors--clearly only those acts universally abhorred will be held to be crimes. (Government-selected juries no longer require unanimity to convict; this has eliminated at a stroke both centuries of common-law practice and one of the most fundamental protections of the individual against state tyranny. This does not affect our argument, however, since we are not talking about these latter-day juries, mandated and ruled as they now are by the state.)

If one properly includes the doctrines of the presumption of innocence and of reasonable doubt as part of the jury system, then the likelihood of anyone being convicted for behavior not noxious to all is nearly eliminated. In this sense, then, anti-abortion laws are unenforceable as well as disobeyed. Our justification for supposing that a jury will approximate natural law better than will legislators derives from the reasonable assumption that jurors are unlikely to impose unjust or savage laws on themselves while legislators are more likely to create repressive laws for others to endure.

In addition, we would point out that the common-law tradition of the jury provides a partial answer to the libertarians' dilemma on the question of abortion. If we have doubts about the justice of any law, we should not support it or keep silent, but rather ought to oppose it. The concepts of reasonable doubt and presumption of innocence, bulwarks of defense for the individual against state tyranny. should be interpreted to mean that unless we are utterly convinced of the rightness of the law and a person's guilt under it, we must assume her or him innocent of any wrongdoing.

The libertarian tradition is one of non-intervention in others' affairs and of protection of the sovereignty of the individual. We believe that however heated the debate on abortion may have been in some circles, and whatever one's personal preference, qualms, or morality concerning abortion (as with drug use or gambling), the libertarian position on abortion is clearly one of no state or legal intervention. There is ample historical precedent for a non-interventionist legal position with regard to abortion. Prior to the early I 800s, there were no statutes whatsoever on the subject of abortion, the legal status being entirely governed by common law. As research by law professor Cyril C. Means, Jr., has shown, pre-19th-century Anglo-American common law was totally silent on the subject and did not even include "quickening" as a cut-off "point," as Means and others had previously thought.

Indeed, for libertarians to support new or old state regulation would be so extraordinary as to require arguments orders of magnitude better than any advanced by abortion prohibitionists. Nor is "neutrality" or silence an answer, as some interventionists propose; laws restricting or specially regulating abortion still exist and are enforced, and libertarians cannot and dare not pretend otherwise. (For example, the Libertarian Party at present has a platform position recommending no state regulation of any kind; to alter this to "no stand," as is proposed by Doris Gordon of Libertarians For Life, would be interpreted by no one as neutrality, but rather --as Gordon surely knows but refrains from saying--as support for existing laws.)

Conclusion

Rights, we repeat, are human artifices. Justice and morality are at best provisional constructions that attempt to summarize the wisdom gained from human experience and insight. But the results of behavioral codes are very real and final without appeal; we must have, then, the right to judge laws and morals by their results and correlatively the right to reject principles that in practice result--however noble their intent--in human misery. No authority for any ethic exists beyond self-determination or individual sovereignty; the creation of prescriptions and proscriptions is within the capacity of each person as a free moral agent. To establish any moral authority antecedent to human conscience--be it the law of identity, God, or Marx--is to lay the foundation for despotism. To sacrifice existing persons for the sake of future generations, whether in slave labor camps for the utopian nightmares of Marxists or fascists, or in unwanted pregnancies, compulsory childbearing, and furtive coat hanger abortions for the edification of fetus-worshippers, is to establish hell on earth.

References

Walter Block. "Woman and Fetus: Rights in Conflict?" Reason, April 1978.
Lucinda Cisler & James Clapp. "Abortion Ruling: Some Good News ... & Some Bad News." Majority Report, Feb. 1973 and Oct. 18, 1975, plus addenda; Feminist Studies, 1:2.
Michael Dunn. Letter to John Walker. Sept. 27, 1977. Courtesy of the author.
Garrett Hardin. "Abortion-or Compulsory Pregnancy?" Marriage & the Family, May 1968.
-- Mandatory Motherhood: The True Meaning of Right to Life. Beacon, 1974.
Cheriel Jensen, Lynette Perkes, et al. Amicus curiae brief in Roe v. Wade and Doe v. Bolton, 410 U.S. 959.
Lawrence Lader. Abortion. Bobbs-Merrill, 1966.
Libertarians For Life. "Libertarianism and Abortion." Wheaton, Md.: n.d. -. -- "The Abortion Debate from the Libertarian Pro-Life Perspective." Wheaton, Md.: 1978.
Tibor Machan. "The Morality of Non-Interference." Reason, April, 1978.
Cyril C. Means, Jr. 'The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality," 14 N.Y. Law Forum 411 (1968).
-- 'The Phoenix of Abortional Freedom: Is a Penumbral or Ninth Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?" 17 N.Y Law Forum 335 (19 7 1).
James C. Mohr. Abortion in America: The Origins & Evolution of National Policy, 1800-1900. Oxford Press, 1978.
Paul Mussen, John Conger, & Jerome Kagan. Child Development & Personality. Harper & Row, 1974.
Karl Pflock. "It's a Matter of Life and Death.' Reason, April 1978.
Murray Rothbard. "Should Abortion Be A Crime?" Libertarian Forum, July 1977.
-- Letter to Sharon Presley. Aug. 4, 1979
Polly Rothstein. "Legal Abortion: Arguments Pro & Con." Washington, DC: NARAL, n.d.
James Sadowsky. "Abortion and Rights of the Child." Libertarian Forum, July-Aug, 1978.
Edwin Vieira, Jr. "The "Right of Abortion: A Dogma in Search of a Rationale." Wheaton, Md.: Libertarians for Life, 1979
John Walker. Letter to Michael Dunn. 1977.

Copyright 1979 by Sharon Presley & Robert Cooke [aka Morgan Edwards]
Copyright 2003 by Sharon Presley