A Rose by Any Other Name…

There are a handful of thorny issues for libertarians – in some case, significant issues on which there is significant disagreement.  One such issue is that of abortion.

I will approach this issue utilizing the positions of two of the staunchest libertarians of recent times – Murray Rothbard and Walter Block.  Both have written in favor of abortion (although Block uses the term “evictionism”), and both have defended their respective positions from what they consider to be a libertarian viewpoint.

While I am not one that can hold a libertarian candle to these two pillars (and also holding the two in quite high regard), my view on this subject is quite the opposite – as mentioned, there are many libertarians that would also hold this opposite view.  I conclude abortion is the initiation of the most grievous aggression: murder.  I hold to this view so strongly that I am quite sure that no argument – libertarian or other – could sway me.  Forewarned is forearmed – while I intend to make a libertarian case based on contract for my view, I approach this subject with a strong bias; if this is a turn-off for you, perhaps you should stop reading.

I will avoid momentarily the act of rape as cause of the pregnancy, but will address this briefly at the end of this article.

I will start with Rothbard, and quote from his book “For a New Liberty: The Libertarian Manifesto.”  The book was first written in the early 1970s; if Rothbard had changed his views since then (and before his passing), I do not know.  However his views are consistent with other libertarians on the one side of this divide.

Rothbard begins by recognizing the other side of the argument:

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?

Rothbard then rightly suggests to avoid getting bogged down in the “minutiae about when human life begins….”  From the first moment of conception, what is conceived is either human or it isn’t.  As we know the result nine months later, to suggest anything other than human life resides in the mother is folly.

Rothbard then states his case:

…this is the crucial consideration.  If we are to treat the fetus 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 fetus 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.

But the fetus was not “unbidden.”  The mother took an action that might result (no matter the precaution taken) in pregnancy. 

I will suggest that the fetus does have a right to live in the mother’s womb, a right in contract.  When an individual (man or woman) takes the action that might result in pregnancy, he / she has made a commitment – call it a contract.  This commitment is certainly valid for the child once born; it is equally valid once the child is conceived. 

Rothbard suggests just such an “out” clause:

The common retort that the mother either originally wanted or at least was responsible for placing the fetus 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.

What Rothbard is suggesting is that the mother can break the contract, even if the result is the death of the counter-party.  It seems a rather one-sided “out” clause – where the one breaking the contract suffers little if any consequence (in fact, sees a net gain, else why break the contract?), 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 the fetus would have agreed to 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 even include language for the most significant breach (one resulting in the death of the counter-party, for example), something like the following:

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.

Certainly, if the mother changes her mind – as Rothbard suggests – it will cause irreparable harm to the fetus.  Money damages will not be sufficient.  The counter-party (the fetus) is entitled to equitable relief, including specific performance, and such relief shall not be opposed.

Similar language is included in many contracts today, and one would expect in this most one-sided contract between mother and fetus – where the party breaking the contract suffers little 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.

I find Rothbard’s reliance on the mother’s ability to change her mind lacking.  She has entered into an agreement, and one in which she holds all the cards.  If she changes her mind, the fetus is entitled to relief – and such relief would certainly be at least as significant as that afforded in a commercial transaction.

Now on to Block.  Here he summarizes his concept of “evictionism”:

In a nutshell, the argument for evictionism is as follows:

1. The unborn 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.

First, I find no trespass.  The unborn fetus was invited, one way or another, by an action of the woman.  Second, when the act of eviction results in killing, Block’s attempt at splitting hairs is lost on me.

But let’s go on.  He develops the idea further here:

What is evictionism? It is the theory that a pregnant woman has the right to evict from her body the unwanted fetus, but not to murder it.

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.

He has written several articles on this subject, and provides links in this piece.  He also provides links to some of the critiques of his view.  I have not read them all.  So my critique might be addressed – I don’t know; if someone points out to me something specific on-point to my criticism, I will read it and address it.  Otherwise, I don’t intend to read the almost two-dozen linked items.

What is my critique?  Block has used the language of landlord and tenant to describe his concept – I will do the same. 

The fetus, as tenant, has entered into a lease – not a tenancy at will, but a fixed-term tenancy, with the term tied to a specific event: birth.  Such a lease was recognized in common law:

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").

The lease terms afford him certain expectations until birth as long as the fetus keeps up his end of the bargain. 

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 fetus demand as compensation?  It doesn’t seem so difficult to guess.

So, why would the mother evict the fetus?  On what grounds?  For what breach?  There is no trespass; the fetus was invited.  The fetus has kept up his end of the agreement.

As with Rothbard, I find that Block falls short.  In Block’s case, the landlord has no cause to evict the tenant who has kept up his end of the bargain.  The lease is for a certain term, and that term being defined as a specific event.

Now, as to rape: the mother did not voluntarily take an action that resulted in the pregnancy.  The pregnancy was the result of an aggression against the woman.

For this, I will revert to the non-aggression principle, as the basis of libertarian philosophy:

The non-aggression principle (NAP)—also called the non-aggression axiom, the zero aggression principle (ZAP), the anti-coercion principle, or the non-initiation of force—is a moral stance which asserts that aggression is inherently illegitimate.

Supporters of the NAP often appeal to it in order to explain the immorality of theft, vandalism, assault, and fraud. In contrast to pacifism, the non-aggression principle does not preclude violence used in self-defense or defense of others

Aggression is allowed only in defense, and only against the aggressor.  The aggressor was the rapist.  Whatever the fetus is, he is not the aggressor. 

Is the fetus trespassing?  I will suggest that the trespass occurred by the rapist.  The fetus is merely the result of the trespass.  The remedy to the trespass cannot include aggression against a third party – the fetus.

The fetus was not the aggressor; the fetus was not the trespasser.  The mother therefore has no right to take action against the fetus that might result in harm to the fetus.

I am certain many will conclude that my arguments here are not very thorough, not as well developed as the arguments put forward by libertarians who support abortion.  This may be so.  As I warned up front, I am rather biased on this issue.  I find it to be murder.  I remain open to the possibility that Rothbard changed his views over time, or that Block has directly addressed the issue of landlord and tenant.  If so, and these are brought to my attention, I will certainly address these.

But I will remain firmly biased.