More on The Rose: Evictionism and Contract

I recently commented on the issue of abortion, using the work of Murray Rothbard and Walter Block as the basis for my comments.  I would like to expand on some of my thoughts regarding Block’s work.  

I will warn once again, that I am and will remain quite biased on this subject.  I cannot imagine an argument that will sway me from the view that abortion is an act of aggression: murder.  If my having this bias is somehow a turn-off, I suggest you stop reading now.  If you have not read the first post, I suggest you do so as I will not cover the same ground here, despite some overlap.

I mentioned in my last post that I had not read much of Block’s work in detail.  In this post, I will go into one of his published papers on this subject:

COMPROMISING THE UNCOMPROMISABLE: A PRIVATE PROPERTY RIGHTS APPROACH TO RESOLVING THE ABORTION CONTROVERSY, by Dr. Walter Block and Roy Whitehead

The authors make clear their personal view regarding abortion:

…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.

However, just because aborting the fetus is abominable, it does not follow that it should be prohibited by law.

The authors begin by suggesting 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.

They will get no argument from me on this.

The authors compare abortion to the act of failing to come to the aid of another – of failing to be a “good Samaritan” – 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.        

This is not a good analogy.  In the case of the drowning swimmer, the person (presumably) did nothing to cause the swimmer to drown – the person did not throw someone unable to swim into the middle of the ocean.  However, the woman did take an action in the situation of pregnancy, and aborting the fetus is like throwing a non-swimmer into the middle of the Pacific Ocean.  This does convey some obligation.

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.

If this is true for a fetus in the womb, why not for an infant at one month old?  The infant is trespassing in my bedroom.  The infant is even more the parasite.  Do I have the right to place it in a situation that is certain to result in the infant’s death, simply for my convenience?

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?

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 quite lacking.  I quote: “This operation was conducted without the permission or even knowledge of either ‘patient.’”  (I am speaking of abortion in cases of voluntary sexual relations.  I have addressed the issue of rape in my previous post.) 

In the case of pregnancy and subsequent abortion, one of the two “patients” (the mother) did take an action with knowledge – she was no innocent bystander.  The action taken always carries the possibility of pregnancy. This wasn’t some sneak event in the middle of the night performed by a devious Dr. Frankenstein, connecting a parasite to the kidney of a sleeping patient. 

The authors go on:

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.

Here, I find much fault.  While the woman does have property rights to her womb, property rights can be legitimately defended only proportionately.  Can a shopkeeper shoot a six-year-old child in the back while the child is escaping with a $1 candy bar?  After all, it is the shopkeeper’s property rights in question.  Does the six-year-olds’ aggression justify any level of violence in retaliation?  For the authors to suggest that the woman’s right to her property “must be held above the valuable life of the fetus” is a subjective statement, requiring judgment.  The authors show none here.

In my previous post, I spent considerable time outlining my view of the rights the fetus has in contract.  With this, the authors disagree:

…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. 

I have previously addressed the issue of eviction, comparing this to a tenant’s rights under a lease.  Eviction is not contractually valid if the tenant has kept up his end of the contract – and contrary to the authors’ assertion, there most certainly is a contract.

However, I will begin not with contract, but with life, everyday life.  Whether desired or not, intercourse can result in pregnancy.  You roll the dice, you take your chances.  Even using a contraceptive does not offer certainty. 

Becoming a parent (including taking an action that might result in this outcome) comes with obligations.  These obligations are quite binding.  Abandoning a young child, leaving him defenseless in an environment completely unsuitable for human life, is a clear violation of these obligations.  While I view this as a moral obligation, I will present it as a contractual one. 

I will caveat by stating that I am not a contract attorney.  This is probably helpful, as I am not tainted by the legalese that might infect my thought.  I think of contracts as agreements to be kept, with appropriate “out” clauses and penalties for non-performance – including the possibility of enforcing specific performance on the party wishing to break the contract (something the fetus would certainly demand if faced with abortion, and a subject I covered in greater detail in my previous post).

The authors suggest that there is no child with which to have a contract.  The authors here are relying on a very thin reed, a reed too thin when one is considering the ultimate loss of property: life.  The foundation should be much firmer when the consequences are so significant.

The position of the authors is that, although the woman voluntarily takes an action that has the possibility of creating a life, because that life does not yet exist at the moment the woman is taking the action, she has not created a contractual obligation because there is no life with which to contract.

I would disagree, and suggest approaching this from the idea of causation:

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.

The woman’s “conduct” certainly caused a “result.”  It is difficult to accept that the woman somehow has no responsibility at all for the result her conduct caused.

The authors continue:

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.

I suggest that the fetus does have a right in contract.

Unilateral Contract:

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.

Offering a reward is a typical example of such a contract – a reward is made known to the general public.  Subsequently, someone comes to claim it.  Although he was not specifically the counterparty, he has a contractual right to the reward.  In the case of the pregnant woman, clearly she undertook a performance “without first securing a reciprocal agreement from the” fetus.  It seems clear the fetus would choose to enforce the contract.

Unilateral Contract, further defined:

An agreement to pay in exchange for performance, if the potential performer chooses to act.

The “potential performer” (the fetus) chose to act – he is keeping up his end of the bargain (please don’t suggest that the fetus is incapable of making any such choice.  The situation here is no different than that of a minor child).  And again, the fetus is the result of an act of the woman – causation applies.

The fetus (or one-week-old in the authors’ statement) can enforce the contract – contracts with minors are enforceable by the minor, if the minor chooses to do so (guess what the fetus would choose).

Keep in mind, I am not making a legal case, nor am I suggesting a strategy to take to the Supreme Court.  I am suggesting a case based on contracts – not as the state might enforce them, but as one who values voluntary agreements would do so.

As a reminder, I am approaching this topic in a manner that I have only recently considered, and do so only to take on directly the proposal made by Block.  Therefore, my thoughts, logic, and rationale are not fully developed.  My own journey was much more straightforward: abortion is the taking of a life.  Any discomfort to the mother due to being pregnant is minor compared to the death of the fetus. 

I might revisit this topic further in the future; Block has written many papers on this topic. 

But I will remain biased, as always.