Abortion and Libertarianism

The abortion debate needn't be an endless rehashing of political minutiae when it can serve as an occasion for reexamining libertarian first principles. It touches on humanity as the basis for individual rights and the prohibition against initiatory violence.

Libertarians reject aggression against other human beings, including lethal violence against the innocent. But some defend the killing of fetuses on the grounds that the fetus is a potential rather than actual human being, a human going to be rather than a human being as William Westmiller would say.

Those making this argument fail to show the biological, genetic or ontological difference between what kind of being the fetus is and what kind of being a newborn is. Certainly birth is a monumental event. But the being that was born is the same being that was in the womb just moments before -- what miraculous change in its fundamental nature takes place simply due to the trip down the birth canal? If the development of the fetus is uninterrupted, it is an essential part of its nature to make this journey. Developmentally, it seems more accurate to say that the fetus is a potential infant in the same sense that an infant is a potential toddler or adolescent. A new being is not formed, but one organism reaches a new stage of development.

Skin cells contain human life. So do gametes. But neither have the potential to become a complete human being on their own. At conception or the simulation thereof that is cloning, a self-contained, distinct physical organism comes into existence that, unless interrupted, will actively develop into the various more mature stages of the life of a member of the human species. Sperm, eggs and somatic cells will not.

One can say that they have fertilized eggs but only became a father upon their children's birth. But the act of fertilizing the eggs was a necessary prerequisite of that person's fatherhood and if any of those specific fertilized eggs had not been allowed to continue developing, the specific children that this father has would not be here today. That clearly shows an individuated being. We were all once fetuses and if we had been killed as fetuses, we would no more be in existence as the individuals we are today than if we had died as infants or teen- agers.

Sapience may be one of the characteristics that makes the human species unique, but it does not define an individual's membership in that species. Humans have the capacity to reason, but even after birth this capacity is not always actualized (infants, the severely disabled, the comatose). Some mock the claim that a fetus has any rights by pointing to the absurd spectacle of fetuses exercising their rights to bear firearms, own businesses or come up with innovative ideas. But it would be equally absurd to imagine an infant doing any of those things, yet few (Peter Singer comes to mind as an exception) would endorse killing infants. Why? Because we know infants are humans and as they continue to develop cognitively, humans have the capacity for all of these things. Humans have inherent worth on the basis of their humanity, which in turn is the basis of all rights -- the intrinsic value that necessitates individual autonomy.

Reason makes human beings different from other animal-organisms, but this does not imply some sort of soul-body duality. We are essentially animal-organisms, we don't inhabit organisms, and we thus come to be when the organism that we are comes to be.

Mr. Westmiller chides abortion opponents for divorcing the birth of new people from the "disgustingly pleasurable sexual act" that creates them. Yet it is his position that actually does that. This sexual act is in fact what produces the being that leaves the womb at birth -- there could be no birth if the being was not already in the womb. It is this sexual act that creates the parental responsibility. The stork does not bring new babies; the sexual choices of free men and women do. We recognize that because of this act parents have an obligation to provide support for their children and not evict them from the crib and let them die. Logically, it is untenable to suggest that no responsibility exists until the being they have brought into existence leaves the birth canal. Nor will it do to suggest this somehow implies that people have no recourse against sexual mistakes. It is simply the case that such recourses must stop short of intentionally causing the death of another human being that came about not by its own will, but by the voluntary actions of its parents.

What about rape? Many pro-choicers hold the confused view that if fetuses are to have any rights, then they must have more rights than other human beings. They can be forgiven for this because many pro- lifers seem to share this illogical notion. If human beings can legitimately be killed in self-defense, fetuses are no different. This case can be made in instances of rape, when the mother did not consent to the act that imposes parental obligations, and it is unassailable in instances when the mother's life is endangered. Where it is not legitimate is in the estimated 98 percent of the more than 1 million abortions that take place annually in the United States which are purely elective.

This misconception also explains the fear of "fetus cops." Simply because a few deranged child-welfare bureaucrats believe that preventing every possible parental activity that may place a child at even the most miniscule risk warrants unprecedented state intervention in every home does not mean the proper libertarian response is to proclaim a parental right to beat, torture and kill children. Similarly, just because regulation of every act by a pregnant woman that might conceivably put some fetus at risk would be undesirable does not mean that there is a right to destroy that fetus for any reason or no reason whatsoever. Reasonable distinctions can also be made between serving as governor of Massachusetts and delivering a crack baby.

A pro-life libertarianism respects the individual from the moment that the specific organism that each of us are comes into existence. Such libertarianism isn't contradictory, for it recognizes the rights of every human being, foremost the right to life. Government cannot "solve" the abortion issue. But libertarians must ask if an abortion right gives license to initiatory violence. If so, libertarians must not abort the basis of their own movement.

W. James Antle III is a freelance writer and former researcher for a political consulting firm. He is a senior writer for Enter Stage Right and staff columnist for several other webzines.

Roe v Wade: Abortion on Demand

By Dr. Frank Beckwith

It is important that the reader understand the current legal status of abortion in America. There seems to be a widespread perception that the Supreme Court decision Roe v. Wade (1973) only permits abortions up to 24 weeks, and after that time only to save the life of the mother. This false perception -- fueled in large part by groups supporting abortion rights -- is uncritically accepted by the media. The fact is that the current law does not restrict a woman from getting an abortion for practically any reason she deems fit during the entire nine months of pregnancy. In order to understand why this is the case, a brief history lesson is in order.

In Roe, Justice Harry Blackmun divided pregnancy into three trimesters. He ruled that aside from normal procedural guidelines (e.g., an abortion must be safely performed by a licensed physician), a state has no right to restrict abortion in the first six months of pregnancy. Thus a woman could have an abortion during the first two trimesters for any reason she deemed fit, whether it be an unplanned pregnancy, gender selection, convenience, or rape. In the last trimester the state has a right, although not an obligation, to restrict abortions to only those cases in which the mother's health is jeopardized. In sum, Roe v. Wade does not prevent a state from allowing unrestricted abortion for the entire nine months of pregnancy if it so chooses.

Like many other states, my state of Nevada has chosen to restrict abortion in the last trimester by only permitting abortions if "there is a substantial risk that the continuance of the pregnancy would endanger the life of the patient or would gravely impair the physical or mental health of the patient." [2] But this restriction is a restriction in name only. For the Supreme Court so broadly defined "health" in Roe's companion decision, Doe v. Bolton (1973), that for all intents and purposes the current law in every state except Missouri and Pennsylvania (where the restrictions allowed by Webster have been enacted into law) allows for abortion on demand.

In Bolton the court ruled that "health" must be taken in its broadest possible medical context, and must be defined "in light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well being of the patient. All these factors relate to health." [3] Since all pregnancies have consequences for a woman's emotional and family situation, the court's health provision has the practical effect of legalizing abortion up until the time of birth -- if a woman can convince her physician that she needs the abortion to preserve her "emotional health." This is why the Senate Judiciary Committee, after much critical evaluation of the current law in light of the court's opinions, concluded that "no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy." [4] A number of legal scholars have come to the same conclusion, offering comments and observations such as the following:

In actual effect, Roe v. Wade judicially created abortion on demand in the United States. [5]

The concept of "health," as defined by the Supreme Court in Doe v. Bolton, includes all medical, psychological, social, familial, and economic factors which might potentially inspire a decision to procure an abortion. As such, "health" abortion is indistinguishable from elective abortion. Thus, until a more narrow definition of "health" is obtained, it may not be possible to limit effectively the number of abortions performed. [6]

After viability the mother's life or health (which presumably is to be defined very broadly indeed, so as to include what many might regard as the mother's convenience...) must, as a matter of constitutional law, take precedence over...the fetus's life... [7] (emphasis in original).

It is safe to say, therefore, that in the first six months of pregnancy a woman can have an abortion for no reason, but in the last three months she can have it for any reason. This is abortion on demand.

Those who defend abortion rights do not deny this disturbing fact but often dismiss it by claiming that only one percent of all abortions are done in the last trimester. There are several problems with this statistical dismissal. First, the fact that third-trimester abortions are permitted for nearly any reason and that unborn children are left unprotected is significant in itself regardless of whether a small percentage of total abortions has taken place during this time. Second, since there are about 1.5 million abortions per year in the U.S., it follows that 15,000 (or one percent) of them are done in the third trimester. This means that 1,250 of them are performed every month (about 40 a day). This is no insignificant number.

Dr. Frank Beckwith is Associate Professor of Philosophy, Culture, and Law, and W. Howard Hoffman Scholar at Trinity Graduate School, Trinity International University (Deerfield, IL), California Campus. He holds a Ph.D. from Fordham University.

Prior to coming to Trinity, Professor Beckwith held full-time faculty appointments at the University of Nevada, Las Vegas(1989-96) and Whittier College (1996-97). His many books include Politically Correct Death: Answering the Arguments for Abortion Rights. His articles and reviews have been published in numerous journals including Journal of Social Philosophy, Public Affairs Quarterly, International Philosophical Quarterly, Focus on Law Studies, Simon Greenleaf of Law and Religion, and the Canadian Philosophical Review.

Notes:

[2] Nevada Revised Statute, 442.250, subsection 3.

[3] Doe v. Bolton 410 U.S. 179, 192 (1973).

[4] Report, Committee on the Judiciary, U.S. Senate, on Senate Resolution 3, 98th Congress, 98-149, 7 June 1983, 6.

[5] John Warwick Montgomery, "The Rights of Unborn Children," Simon Greenleaf Law Review 5 (1985-86):40.

[6] Victor G. Rosenblum and Thomas J. Marzen, "Strategies for Reversing Roe v. Wade through the Courts," in Abortion and the Constitution: Reversing Roe v. Wade through the Courts, ed. Dennis Horan, Edward R. Grant, and Paige C. Cunningham (Washington, D.C.: Georgetown University Press, 1987), 199-200.

[7] John Hart Ely, "The Wages of Crying Wolf: A comment on Roe v. Wade," Yale Law Journal 82 (1973):921

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