This post has a backstory. Regular readers might recognize it – or at least a different version of it. I wrote the original post almost two years ago. Shortly thereafter, I was encouraged to get it published at a refereed journal, by whom and for what purpose I will leave unsaid as I don’t have permission (and haven’t asked) to publish the details.
I have never had an interest in taking the time and effort necessary to get published in any such journal – such an objective fits nowhere in my reasons for writing. To address the last 10 percent necessary to make it presentable takes more time than writing the original post in the first place. And I have no need – professionally or otherwise – to get published in such a forum.
But, as I was strongly encouraged by this respected individual within our small circle, I decided to try. I significantly cleaned up the original and submitted it to more than one publication. No luck.
Well, a couple months ago the same individual contacted me again for the same purpose. I pushed back quite a bit – I didn’t like much about taking the time and effort the first time, why would I again further improve the post for the same purpose? But, I was talked into it, and was again rejected by more than one place.
I received good and helpful feedback on the rejections; if it was more important to me to get published, I could make good use of the suggestions. However, I want to spend no more time on this. In the meantime, I want to get something out of all of this effort – hence, posting it here, where I have an “in” with the guy in charge; no chance of rejection!
Note: You will note different formatting than my usual; the post is exactly as submitted, except I changed the footnotes to endnotes, for obvious reasons.
Libertarians and Abortion
THERE ARE A HANDFUL OF THORNY ISSUES for libertarians – in some cases, significant issues on which there is significant disagreement. One such issue is that of abortion.
I will approach this issue via the positions of two of the staunchest and most principled libertarians of recent times – Murray Rothbard and Walter Block, and primarily Block. Both have written in favor of abortion (Block via his concept of “evictionism”), and both have defended their respective positions from what they consider to be a libertarian viewpoint: a trespass by the unborn child on the property rights of the mother.
With this in mind, I will present the case that it is the unborn child, and not the mother, that has the right of use of the womb for the term of the pregnancy. I base this on causation, reasonable reliance, unilateral contract, and, as Block has introduced the language of landlord and tenant, a lease and the covenant of quiet enjoyment. I rely on established contractual principles that are not in violation of the non-aggression principle.
I. Abortion is Killing, but is it Murder?
Block and Whitehead offer their personal view regarding abortion. From “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” by Dr. Walter Block and Roy Whitehead:
…we maintain that abortion is an abomination. It is a massive killer. More people die annually as a result of it (1,591,000) than perish from heart disease (720,058), cancer (505,322), stroke (144,088), or all accidents (91,983). Adding insult to injury, death occurs in these cases because of the purposeful action of other people.[ii]
Rothbard begins with a recognition of the “Catholic” side of the argument. From “For a New Liberty: The Libertarian Manifesto,” by Murray Rothbard:
For the essence of that case – not really “Catholic” at all in a theological sense – is that abortion destroys a human life and is therefore murder, and hence cannot be condoned….Murder is not an expression of religious preference; no sect, in the name of “freedom of religion” can or should get away with committing murder with the plea that its religion so commands. The vital question then becomes: Should abortion be considered as murder?[iii]
II. When Does Life Begin?
Rothbard suggests to not get bogged down in the “minutiae about when human life begins….”[iv] Block and Whitehead develop this concept further, concluding that it is appropriate to consider that human life begins at conception:
At what point does human life begin? There are really only two reasonable possibilities: at conception or at birth; all other points of development in between are merely points along a continuum which begins and ends with these two options.
So which is it? Does life begin at the beginning point of this nine-month continuum or at the end of it? We take the former position. We maintain that the fetus is an alive human being from day one onward, with all the rights pertaining to any other member of the species.[v]
I am no scientist, and cannot claim any unique knowledge on this question of when human life begins. An exploration of this question is far beyond the scope of this paper, however I offer the following:
When discussing the philosophical and/or ethical issues, surrounding the start of life the desire for science to provide a clear cut human/non-human boundary is very understandable. We need to be able to define this because it is important in our laws and our understandings. However, even from the brief descriptions given above, it is clear that there is no simple answer that science can give. It may well be that reality doesn't have an answer for us, and that "when does life begin?" is, in fact, a meaningless question.
Scott Gilbert concludes based on these premises that:
The entity created by fertilization is indeed a human embryo, and it has the potential to be human adult. Whether these facts are enough to accord it personhood is a question influenced by opinion, philosophy and theology, rather than by science.[vi]
Science appears to offer no definitive answer – what remains is “opinion.” Therefore, I find no reason to disagree with either Block or Rothbard in their conclusion. I am certain that the life is human one minute before birth (and science agrees on this point), and as science offers no conclusive answer to the question of when life begins, my examination proceeds assuming that human life begins at conception.
III. Aborting the Unborn Child is Like Failing to Come to the Aid
Block and Whitehead compare abortion to the act of failing to come to the aid of another – of failing to be a “good Samaritan” – therefore not an aggressive act.
The woman who refuses to carry her fetus to term is in exactly the same position as a person who refuses to rescue a drowning swimmer. Abortion is not, in and of itself, an act invasive of other people or their property rights, even when fetuses are considered persons.[vii]
This is not a good analogy. In the case of the drowning swimmer, the potential rescuer (presumably) did nothing to cause the swimmer to drown – the person did not throw someone unable to swim into the middle of the ocean after inviting the novice to go for a boat ride. However, the woman did take an action in the situation the act of becoming pregnant. Aborting the unborn child is like deliberately throwing a non-swimmer into the middle of the Pacific Ocean after providing a formal invitation to a nine-month cruise – a cruise with no scheduled stops. The invitation conveys an obligation; the act of throwing the person overboard is an aggressive act, in violation of the non-aggression principle.
IV. The Unborn Child is Trespassing
Rothbard states this case:
…this is the crucial consideration. If we are to treat the unborn child as having the same rights as humans, then let us ask: What human has the right to remain, unbidden, as an unwanted parasite within some other human being’s body? …What the mother is doing in an abortion is causing an unwanted entity within her body to be ejected from it; If the unborn child dies, this does not rebut the point that no being has a right to live, unbidden, as a parasite within or upon some person’s body.[viii]
What is meant by the term “unbidden”?
1. Not ordered or commanded; spontaneous.
2. Not asked or summoned; uninvited.
It seems rather inappropriate to consider the child was “unbidden.” The mother took an action that could result (no matter the precaution taken) in pregnancy. Pregnancy is not “spontaneous.”
Block and Whitehead also suggest the unborn child is trespassing:
Given this, how can we defend the mother's right to kill the fetus? Simple. She owns her own body, and the unwanted fetus growing within it is in effect a trespasser or parasite. This may sound harsh, but when the property rights in question are thoroughly analyzed, it is the only possible conclusion that may be reached.[x]
I suggest it is not so “simple” nor is it “the only possible conclusion that may be reached” when “the property rights are thoroughly analyzed.”
Block and Whitehead continue:
To see this point, consider the following case: Suppose one day you wake up to find yourself attached to another person, e.g., Thompson's by now famous violinist, through your kidneys. You have two healthy organs, and the other person has none that are functioning. During the night, while you slept, doctors performed an operation connecting that person to your kidneys through a sort of umbilical chord, and there you lie. This operation was conducted without the permission or even knowledge of either "patient."
What rights and obligations do you have with regard to this violinist?[xi]
The authors suggest that you have the right, after properly notifying persons who are able to assist the uninvited party, to sever the connection. I find this analogy also lacking. I quote: “This operation was conducted without the permission or even knowledge of either ‘patient.’”
In the case of pregnancy, one of the two “patients” – the one purportedly trespassed upon, who is providing the kidney services (the mother) – did take an action with knowledge: in order to become pregnant she was no innocent bystander. Intercourse always carries the possibility of pregnancy. This wasn’t some sneak event in the middle of the night performed by a devious Dr. Frankenstein, secretly inserting an unborn child into the womb.
From Dr. Paul:
The fetus, of course, neither aggressed nor intruded. The mother and father placed him there.[xii]
V. There is no Contract
Block and Whitehead suggest there is no contract:
The fetus does not yet exist, and even when it does, it is impossible to have a contract (implicit or otherwise) with a one-week-old baby.[xiii]
It is possible to have a contract with a minor. It is voidable, however, only by the minor.
For most contracts, the general rule is that while it's not illegal to enter into a contract with a minor, the contract is voidable at the discretion of the minor. Voidable contracts are usually valid contracts and are binding unless the child cancels it.[xiv]
As to the type of contract, I will come to this shortly.
VI. There Might be an Agreement, But the Mother Can Change Her Mind
Rothbard suggests an out clause, exercisable unilaterally by the mother:
The common retort that the mother either originally wanted or at least was responsible for placing the unborn child within her body is, again, beside the point. Even in the stronger case where the mother originally wanted the child, the mother, as the property owner in her own body, has the right to change her mind and eject it.[xv]
What Rothbard is suggesting is that the mother can break the agreement, even if the result is the death of the counter-party. It seems a rather one-sided out clause – where the one breaking the agreement suffers little if any consequence (in fact, sees a net gain, else why break it?), while the ultimate consequence is paid by the party that (presumably) was satisfied with the terms of the original deal. It doesn’t seem like any clause to which the unborn child would have agreed up front.
Most, if not all, contracts contain language that covers the possibility of one party or the other wanting out of the agreement. Remedies include continuation of performance for a specific time, return of certain forms of compensation, etc. Such contracts include language for even the most significant breach. An illustrative example:
It is further understood and agreed that any breach of this agreement by you will result in irreparable harm to the counter-party, that money damages will not be a sufficient remedy for any such breach of this agreement and that the counter-party will be entitled to equitable relief, including injunction and specific performance for any such breach or any threatened breach, and that you shall not oppose the granting of such relief.[xvi]
If the mother changes her mind – as Rothbard suggests she has every right to do – it will cause irreparable harm to the unborn child. Money damages will most certainly not be sufficient for the benefit of the now-dead unborn child. The counter-party (the unborn child) would be entitled to equitable relief, including specific performance, and such relief shall not be opposed. What specific performance would the unborn child demand? It is not difficult to imagine the answer.
Similar language is included in many contracts today, and one would expect in this most one-sided contract between mother and unborn child – where the party that set the terms of the contract could then break the contract and realize a gain while the counter-party suffers death – it seems reasonable that the expectation would be not less than what is standard in every-day commercial agreements – for exchanges much less significant than life and death.
There are libertarians who believe a specific performance clause is counter to libertarian theory. In my limited reading of others on this issue, it seems Rothbard is one such libertarian[xvii] and Block is not. [xviii] I find it to be a slippery slope for a libertarian when one begins down the path of calling into question the enforceability of the terms within a contract – a contract not otherwise aggressing against an unwilling third party. [xix]
VII. Evictionsim is Block’s Answer
In a blog post entitled “Evicitonism: The Only True Libertarian Position on Abortion,” Block summarizes his concept: [xx]
In a nutshell, the argument for evictionism is as follows:
1. The fetus is trespassing into the womb of the woman.
2. The rights of all fetuses are equal.
3. Therefore, the only right choice would be evicting the fetus. Killing it would be wrong.[xxi]
I find no trespass. How is one trespassing when one was invited? When the party host extended the invitation, she knew it would be for a nine-month visit with no possible way for the guest to depart in the meantime. The unborn child was invited by the action of the woman for just such a term.
Block develops the idea further:
What is evictionism? It is the theory that a pregnant woman has the right to evict from her body the unwanted unborn child, but not to murder it.[xxii]
He recognizes that, with today’s medical technology, if the eviction occurs prior to the sixth month or so, the infant will likely die. However he suggests, over time, that improvements in technology will afford the evicted infant a chance at life even if the eviction occurs earlier in the pregnancy.
From Block and Whitehead:
The position put forth here, in contrast, is one of eviction not of killing. However, if the only way to evict is by killing the fetus, then the woman's right to her property - that is, her womb - must be held above the valuable life of the fetus.[xxiii]
There is significant fault with this assertion. Even if one grants Block’s position, Rothbard suggests that property rights can be legitimately defended only proportionately:
The victim, then, has the right to exact punishment up to the proportional amount as determined by the extent of the crime, but he is also free either to allow the aggressor to buy his way out of punishment, or to forgive the aggressor partially or altogether. The proportionate level of punishment sets the right of the victim, the permissible upper bound of punishment; but how much or whether the victim decides to exercise that right is up to him. [xxiv]
Rothbard here seems to directly contradict his reasoning in support of a woman’s right to abortion due to the child’s trespass – the punishment certainly is not proportional to the (supposed) crime. One or the other position must be invalid. I suggest it is not Rothbard’s position on proportionality.
Is a shopkeeper justified in shooting a six-year-old child in the back while the child is escaping with a one-dollar candy bar? It seems Block and Whitehead would say yes. After all, it is the shopkeeper’s property rights in question. Does the six-year-olds’ aggression justify any and every level of violence by the shopkeeper in defending his one-dollar candy bar?
In my limited work on the concept of “proportionality,” I conclude that the answer will not be found solely by applying the non-aggression principle. [xxv] In the spectrum of possibilities beginning with simply retrieving the stolen property, there are many reasonable answers not inconsistent with libertarian theory – so, while Rothbard’s view of proportionality is one possibility, I don’t believe it is the only possibility.
But I am certain that shooting a six-year-old for stealing a candy bar is nowhere consistent with the non-aggression principle; this example can be applied as well to the case of the unborn child, making invalid Block and Whitehead’s position.
VIII. The Rights of the Unborn Child
I suggest that the unborn child does have rights to (and the mother has obligations to the unborn child regarding) the use of the womb based on general contractual principles, and further on contractual principles found in rental real estate.
Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury.[xxvi]
Here I speak to causation not in the abortive act (although this could be used to counter Block’s “evictionism” argument), but in conception. The woman’s “conduct” during intercourse brought on the “result” of pregnancy. It is difficult to accept that the woman somehow has no responsibility at all for the pregnancy (and therefore, the unborn child) directly caused by her conduct.
From the afterword of Dr. Paul’s paper, by Doris Gordon:
Being in the womb and needing parental care is a situation parents impose upon their children; children do not impose it upon their parents. As libertarians agree, no one’s mere need for care should be made an obligation upon anyone else under the law. But if we are responsible for causing those needs, as with our own children, and if we negligently or intentionally fail to provide care and then harm results, we are accountable.
The critical moral point is not need but causation and assent (i.e., choice), and thus responsibility. …since parents, fathers as well as mothers, are responsible for causing their own children’s need for protection, their obligation is not a matter of choice but of their children’s rights.[xxvii]
It cannot be avoided that the mother’s action caused the pregnancy.
X. Reasonable Reliance
The unborn child, now existing bidden in the womb, at the invitation of the mother, might reasonably conclude he can rely on certain conditions; a reasonable reliance:
…what a prudent person would believe and act upon if told something by another. Typically, a person is promised a profit or other benefit, and in reliance takes steps in reliance on the promise, only to find the statements or promises were not true or were exaggerated.
The one who relied can recover damages for the costs of his/her actions or demand performance if the reliance was "reasonable."[xxviii]
What would a reasonable person – one unable to swim – assume if invited on a nine-month ocean cruise? Would he reasonably assume this invitation included the possibility that his hostess would throw him overboard?
After receiving an invitation that inherently involved nine months of complete – life-and-death – dependency, what would be more reasonable for the unborn child to rely upon than he was promised the benefit of the full term in the womb?
XI. A Unilateral Contract
Block and Whitehead suggest that there can be no contract (“implicit or otherwise”) as there was no counterparty at the time; the child did not exist at the time of contract:
…there can be no such contract in the case of pregnancy, at the very least because there is simply no child to have a contract with at the point of intercourse when the child is created. [xxix]
I suggest that the unborn child (and even the yet-to-be-conceived child) does have a right in contract, despite Block’s objection that a contract cannot be had with a party not yet in existence:
A contract in which only one party makes an express promise, or undertakes a performance without first securing a reciprocal agreement from the other party. An agreement to pay in exchange for performance, if the potential performer chooses to act.[xxx]
Offering a reward is a typical example of such a contract – a reward is made known to the general public. The counterparty need not be known at the time the contract is offered, yet it is enforceable by the counterparty if properly claimed. Technically, the counterparty need not even be born or conceived when the offer was made (imagine in 1963 a fifteen-year-old boy finding Hitler on skis in Bariloche). Subsequently, someone comes to claim the reward: the person who chose to act. Although he was not the individually identified counterparty (at the time of contract there was no specific counter-party), he has a contractual right to the reward.
The woman made an offer; she placed herself in a position of being obligated to a counter-party that might take her up on her offer. The unborn child took her up on the offer, and can therefore enforce the contract – contracts with minors are enforceable by the minor, if the minor chooses to do so; contracts with a minor can only be voided by the minor. I suspect the unborn child would choose to enforce the contract.
XII. The Unilateral Contract is an Offer to Lease
Block uses the language of landlord and tenant (“evictionism”) to describe his concept – I will walk along his chosen path: The mother as landlord and the unborn child as tenant have entered into a lease – a fixed-term tenancy, with the term tied to a specific event: birth. Such a lease term was recognized in common law:
Fixed Term Tenancy:
A fixed-term tenancy or tenancy for years lasts for some fixed period of time. It has a definite beginning date and a definite ending date. Despite the name "tenancy for years", such a tenancy can last for any period of time—even a tenancy for one week may be called a tenancy for years. At common law the duration did not need to be certain, but could be conditioned upon the happening of some event, (e.g., "until the crops are ready for harvest" or "until the war is over").
A fixed term tenancy comes to an end automatically when the fixed term runs out or, in the case of a tenancy that ends on the happening of an event, when the event occurs.[xxxi]
In this case, the term of the lease is for the term of the pregnancy – the “happening of an event,” being birth.
Can the landlord evict the tenant without cause? I have reviewed several typical real estate lease contracts, and find nothing to suggest this is so. And without such a possibility, there is, of course, no remedy proposed. I suspect if the landlord wants the tenant out during the term of the lease, the landlord must negotiate proper terms and compensation for this proposed breach. What would the unborn child demand as compensation? It doesn’t seem so difficult to guess.
XIII. Covenant of Quiet Enjoyment
In a lease, the tenant is protected in his right to enjoy the property without disturbance:
In the covenant of quiet enjoyment, the landlord promises that during the term of the tenancy no one will disturb the tenant in the tenant's use and enjoyment of the premises. Quiet enjoyment includes the right to exclude others from the premises, the right to peace and quiet, the right to clean premises, and the right to basic services such as heat and hot water and, for high-rise buildings, elevator service.[xxxii]
The landlord (the mother) makes this “promise.” It seems clear that the unborn child would want to exclude an abortion doctor from the premises, and would want peace and quiet as opposed to the horrendous and permanent calamity that comes with being aborted. The landlord is obligated to ensure the abortion doctor stays out.
XIV. Conclusion: The Property Rights to Use the Womb Belong to the Unborn Child
The unborn child is not an aggressor; the unborn child is not a trespasser. Based on these factors and contractual principles, I suggest that the unborn child has the rights to use the womb, rights the mother gave up for a time – in a similar manner in which a tenant has the right to occupy the rental home, rights the homeowner has given up for a time.
Just as in a rental agreement where the homeowner transfers the right to occupy the house to a tenant (without giving up ownership of the home), the mother has transferred the rights to occupy the womb to the unborn child (without giving up ownership of the womb).
The mother took an action that resulted in the pregnancy – causation. Her conduct caused a result for which she is responsible. She cannot be relieved – by her unilateral choice – of the obligation that came to be as a direct result of her action. The obligations, caused by her actions, are hers because of a unilateral contract – the one the mother extended to the potential taker – the unborn child. In this case, the unborn child took up the offer at the moment of fertilization. That he did not exist when the offer was made is irrelevant. There was sound basis for the unborn child to reasonably rely on his being wanted – the mother took action that gave this appearance.
The use (separate from ownership) of the property (the womb) belongs to the unborn child for the term of the lease – a fixed-term tenancy tied to a specific event: birth. The unborn child has the right of quiet enjoyment in the property. I conclude that the unborn child, not the mother, has property rights in the use of the womb for the duration of the pregnancy.
Within the context of abortion, therefore, the mother has no right to take action against the unborn child that might result in harm to the unborn child.
[ii] See Dr. Walter Block and Roy Whitehead, “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” Appalachian Journal of Law Vol. 4:1 2005
[iii] See Murray Rothbard, “For a New Liberty: The Libertarian Manifesto,” Ludwig von Mises Institute 2011
[v] Ibid. 2
[vi] “When does life begin?” http://rationalwiki.org/wiki/When_does_life_begin%3F
[vii] Ibid. 5
[viii] Ibid. 4
[ix] Dictionary.com http://dictionary.reference.com/browse/unbidden?s=t
[x] Ibid. 7
[xii] Abortion and Liberty, Dr. Ron Paul http://media.ronpaul.se/2012/01/Ron-Paul-Abortion-and-Liberty.pdf
[xiii] Ibid. 11
[xiv] Is It Legal to Sign a Contract With a Minor? http://blogs.findlaw.com/law_and_life/2014/03/is-it-legal-to-sign-a-contract-with-a-minor.html
[xv] Ibid. 8
[xvi] Author experience
[xvii] The Ethics of Liberty, Murray Rothbard https://mises.org/library/property-rights-and-theory-contracts
[xix] The Sanctity of Contract http://bionicmosquito.blogspot.com/2014/04/the-sanctity-of-contract.html
[xx] See Walter Block, “Evictionism: The Only True Libertarian Position on Abortion,” blog post at LewRockwell.Com September 5, 2012 http://www.lewrockwell.com/blog/lewrw/archives/120190.html
[xxii] See Walter Block, “A Not So Funny Thing Happened to Me in Tampa,” LewRockwell.Com August 30, 2012
[xxiii] Ibid. 13
[xxv] A Return to Proportionality http://bionicmosquito.blogspot.com/2014/07/a-return-to-proportionality.html
[xxvii] Ibid. 12
[xxviii] Law.com, reasonable reliance definition http://dictionary.law.com/Default.aspx?selected=1732
[xxix] Ibid. 23
[xxx] The Free Dictionary, Unilateral Contract http://legal-dictionary.thefreedictionary.com/Unilateral+contract
[xxxii] The Free Dictionary, Quiet Enjoyment http://legal-dictionary.thefreedictionary.com/Quiet+enjoyment