The libertarian case concerning the legality of abortion
For those that think this will definitively show one side wins over the other, you are sorely mistaken. If you want to fully understand a position, you have to be able to argue on all sides of the issue. For those that are not well exposed to libertarianism, yes, there are more than two sides to the abortion debate.
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| Ha. That is a (rare) great sign in the abortion debate. I assume, though, that the maker of the sign prides herself on being a "voice for the voiceless" but completely ignores the opposite argument in this debate, that attempts to give a voice to the literally voiceless. // photo by Gayatri Malhotra |
Ever since the draft majority opinion on the overturning of Roe v Wade was leaked, the political sphere has exploded with jubilation, anger, incoherence, diversions, strawmanning, and embarrassing hot takes. Polls had shown an inconsistency when respondents were asked whether Roe should be overturned (low favorability) and whether abortion should be banned at a specified time that Roe still prevented (much higher favorability). Elizabeth Warren, so irate she couldn't see straight, claimed Republicans are cruel while avoiding the right's argument that abortion kills babies. Mitch McConnell in short order started talking about the possibility of a federal abortion ban despite the Republican argument about states' rights in overturning Roe v Wade. Many seemed more focused on who leaked the draft opinion and the strategy of SCOTUS selections than debating the virtues or vices of abortion bans.
Justice Alito himself, displayed torturous logic, explaining in his majority opinion that abortion rights were not "deeply rooted in this nation's history". So, what? For the majority of this country's existence, black rights were not "deeply rooted in this nation's history", either. It doesn't mean black people should not have rights. It's a very weird, very conservative argument, where history and tradition appear to, by themselves, be the justification of policy. He extended this argument to drugs and prostitution, writing, "Those criteria [of autonomy], at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history." Yes, Alito. Drug use and prostitution should be legalized. They have been as disastrous as alcohol prohibition in the early 1900s. Even if we use the absurd traditionalist theory, looking back on America's history, there exists a long history of drug and prostitution freedom. Laws against these actions mostly started in the early 20th century and many illegal drugs now weren't made illegal until the mid-century. He further opined that "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision." The Constitution doesn't need to specifically enumerate a right for it to be protected. The Ninth Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." I have this one memorized and Alito has never heard of it? Maybe I should take his place on SCOTUS.
Though I don't want to spend much time discussing the legality of this, it is important to note that the overturning of Roe v Wade does not mean abortions are now banned across the country, like what many people seem to believe, based on how they're acting. It simply turns the law-making abilities to the states. Some states will pass laws that allow abortion, some will pass laws that ban abortion, and many will likely have a ban at some duration within the pregnancy. In a legal structure where rape and murder are illegal on the state level, it seems insane that people think an issue as divisive and passionate as this one should be decided on a federal level.
With the red and blue colors warring against each other, libertarians have been no different. Gatekeeping immediately started on the r/Libertarian Subreddit. Numerous posts immediately following the announcement went straight to gatekeeping, claiming that one cannot be a libertarian if one is pro-life. Interestingly, very few pro-life libertarians went the gatekeeping route, though that just may be because r/Libertarian may actually have more leftists in the sub than libertarians. The arguments were not good. Many of them just claimed that abortion bans violate women's bodily autonomy and that anyone who objects is not libertarian, never even addressing the arguments that half of libertarians have. This is either ignorance or an inability to argue in good faith.
Seminal writers and major contributors to the libertarian philosophy are very split on the issue. Murray Rothbard and Nick Gillespie are pro-choice. Ron Paul and Dave Smith are pro-life. Walter Block is evictionist. To those that would claim those listed above are not libertarian, I would say to learn some more about libertarianism. It is wholly possible to utilize libertarian philosophy to argue any of those sides.
I will attempt to steelman the arguments on all sides and at the same time, rebut them. There are a lot of stupid and idiotic takes out there. If you think saying "cuz God" is an argument, it's probably best to stay away from the argument and stick to theology, "cuz Flying Spaghetti Monster". If you think all pro-lifers are a bunch of misogynists who just want to have control over women's bodies while never bothering to examine the arguments of when life begins because those are the claims of the patriarchy, sorry, you lack the requisite intellectual curiosity to engage in this debate.
Honestly, many libertarians exhibit dumb takes when it comes to abortion, but there are many that also exhibit much thought and nuance into a complex issue, that goes well beyond the level of discourse found among any other political group I have come across.
The libertarian case for being pro-choice
The left's mantra for a long time now has been "My body, my choice."
That is a very libertarian argument.
Unfortunately, that rings completely hollow, from the left. Just ask any average leftist what they think about vaccine mandates. If they say vaccines protect others, well, they don't understand the opposing viewpoints on abortion.
Libertarians, on the other hand, have every right to use that argument. One of the fundamental derivations of the theory is the concept of private property, starting with self-ownership. Given that one owns their own body and is inextricably linked to it, a person must be able to do with their own body as they see fit, whether it be drugs, prostitution, or abortion. Prohibitions of these voluntary acts are a violation of their self-ownership.
Similarly, one person is not entitled to another person's fruit of their labor. If one is requiring another to work on their behalf, this is akin to slavery. Given one's right to self-ownership, the fruits of their labor are their own to give, and if they don't want to give it to the fetus, then they should not be forced to do so.
From a consequentialist perspective, bans on abortions do not generally meet the intended goal. Often, the abortion is just taken out of a medical clinic and alternative means are used in a much more dangerous fashion that often creates great risks to the mother. There also is the question of what happens after an abortion is attempted. If a doctor performs an abortion because he thinks it is medically necessary for the survival of the mother, who gets to question the doctor? A politician? That is sure to go wrong. What do we do with the doctor and/or mother? Send them off to jail? Because their threshold for risk may not have lined up with what a politician thinks it should be? What would that risk be? One percent risk of death? Ten percent? Fifty percent? Anyone that understands the subjective value theory should understand that risk tolerance varies from person to person. Prohibitions on abortion would lead to a lot of innocent people being sent to cages, and we know politicians are not above banning travel to another state to get an abortion. Libertarians know. Prohibitions don't work and never underestimate the government to bollocks it all up.
Rebuttal
Yes, self-ownership is absolutely one of the major underpinnings of libertarian philosophy. And that is why the fetus deserves the protection of life. The only way to claim that the ability to perform abortions is a right to self-ownership is if the fetus is not a life and is not entitled to any rights.
Certain situations do call for certain people to be entitled to the fruits of others' labor. Raising a child is one of them. Nobody would argue that it would be okay to kill a one-year-old because the parent doesn't want to give the fruits of their labor to feeding, clothing, and sheltering the child. If you have a child, you assume the responsibility of being the child's caretaker and guardian. Having a child is, in nearly all instances, a decision one makes. While people have sex for fun, there are literally no adults with a halfway functioning brain that don't realize there are risks of pregnancy involved in the action. One must have an assumption of risk when engaging in these acts and once life is established, one cannot just say to end the life just because it's inconvenient. Therefore, there must be more to the argument than just the parasite angle.
Dave Smith's hot air balloon is a rather good one. If Howard invites Dagny into a hot air balloon, even if unintentionally, she has entered his property, just as a mother invites a child into her womb. He is able to evict her from his property. However, in the case of abortion, this hot air balloon is hundreds of feet up in the air. Howard no longer has the right to evict Dagny because an eviction would necessarily end in Dagny's death. Even if Dagny was a stowaway, it is highly questionable for Howard to evict her in midair. Only if she endangers Howard's life with, say, a knife, as a fetus may do to a mother (not with a knife, obviously), does Howard have the right to evict Dagny, as long as other methods to try to deescalate the situation have been reasonably exhausted.
The consequentialist argument may be the most convincing. The "because they'll still do it" line isn't the best, since if we agree that a fetus is a life with rights, well, we don't give up on prosecuting murder because people will still commit murder. And if it's a progressive saying that line, it can be fun asking them to apply the same logic to gun rights, but libertarians can actually be consistent on that line (to be thorough, it is not inconsistent in the inverse, since a pro-life libertarian understands still owning a gun doesn't necessarily cause a murder, but an abortion, by definition, kills a fetus). But the practical application of the law and whether we trust the government to figure out who to throw in jail is a scary prospect indeed.
The libertarian case for being pro-life
While the pro-choice segment of libertarians is focused on the rights of the mother, the pro-life segment is focused on the rights of the unborn child. If it is established that life begins at an earlier state than birth, then one must think abortion should be banned for at least some duration prior to birth. One would not consider it okay to kill a child that has been born. Why would it be any different one minute prior to birth? One day? One week? Keep scaling it back and we find that there must be some kind of threshold where life begins and it cannot rationally be at birth, given that the difference is largely geographical (inside or outside the uterus) and whether an umbilical cord is attached. There is no major difference in consciousness, as babies in utero respond to stimuli from outside the womb. Take my son for instance. He was born three weeks premature. So two weeks prior to the estimated birth date, it would have been okay to kill him, but since he was three weeks premature, it is not okay? What is the effective difference there? Okay, so the vast majority of abortions occur in the first trimester, but that doesn't mean there can't be a ban on abortions in the third trimester as long as the mother's life is not in jeopardy. As Ron Paul has recounted in his book The Revolution: A Manifesto, botched late-term abortions would occasionally result in a live birth, at which point the physicians would ignore the cries of a baby until it dies. How can this possibly be a moral stance? How can this possibly be anything other than child murder, or at least, gross negligence? Would a pro-choice proponent really disagree with even a law that states babies born alive following a failed abortion may not be neglected or killed? There is no effective difference between this and a psychopath that breaks into a hospital and murders a newborn.
While the mother has ownership of her own body, she has invited another life inside of her when she engaged in consensual activity with someone. If she was engaged in sex purely for pleasure, how many don't understand the risks of pregnancy involved in this activity? Everybody needs to take responsibility for their actions and simply not wanting to bear responsibility for a child is no reason to kill that child. Even if the pregnancy is due to the failure of contraceptives or human error, it's still no reason to kill a child, despite the large burden it carries. Still, it is preferable to give the child up for adoption than the kill him or her.
In cases of rape, the mother is a victim of a violent act and the child was not a result of consensual activity. Some conservatives argue rape should negate any ban on abortion, but this is logically inconsistent with their claims. While the mother was a victim and the father an aggressor, the child is innocent. To kill the child is killing an innocent person, although rearing the child could be extremely traumatizing for the woman. However, the woman would be free to get a morning-after pill which would delay ovulation and make it more difficult for an embryo to attach to the uterus lining. If the woman still becomes pregnant, unfortunately, she must bring it to birth, at which point, she may give the baby to foster parents and the perpetrator must then pay for the rearing of the child in excess of whatever was paid to the mother for the trauma. It's totally unfair to the mother, but killing a child is not an appropriate response, nor does it right any wrong.
Rebuttal
If we're going to argue the end of the pregnancy's extreme, we must also examine the beginning of the pregnancy as the other extreme. If one's pro-life position is derived from a life-begins-at-conception perspective, it's the same thing. Are we really going to assume that a zygote, a single cell, should be a life? Why wouldn't a skin cell, then, be afforded protection? Is it because of the eventuality argument, that a zygote has the potential to become a human? Then what about sperm? Most sperm have the potential to become a human if they can find an egg to fertilize. Are we going to convict men who masturbate in the shower as mass murderers? It is just not reasonable for a single cell, or even an early embryo, to be considered a life, especially when there are no functioning organs yet.
Further, if the definition of life is conception, this creates a lot of weird situations. For one, the morning after pill should probably not be allowed either, since one of its actions is to disturb the uterine lining so a fertilized egg cannot attach and grow, dooming it to death. IVF also becomes weird. What if a mother cannot conceive naturally, goes to IVF, makes eight embryos and they take when artificially inseminated? Is she now just doomed to have eight children when she only wanted two, since they cannot discard the extra zygotes? I suppose they can donate the extra zygotes, but what if they're from an older female and therefore, less desirable? Are they doomed to be in a frozen state for eternity? If they are life that must be afforded rights, does freezing them mean false imprisonment?
The absolute trauma of a woman who was raped and having to carry the child to birth can be catastrophic to their mental health. It is highly likely that women that suffer these horrific acts may go out and perform unsafe self-abortions or black market abortions. You run a high risk of cornering the victim into a helpless situation, resulting in potential life-ending harm to both the mother and the baby.
The libertarian case for evictionism
While the pro-life and pro-choice factions focus on rights of either the mother or the child while oftentimes talking past each other, evictionists step back and consider the rights of both, trying to reconcile opposing rights.
For a mother who doesn't want the baby, the rights of the woman are directly in conflict with the baby's right to life. This is just one of those unfortunate aspects of life that is just difficult to sort out. The mother should have rights to her own body and the baby should have rights to life.
To attempt to arbitrate this dilemma, evictionism should enter the conversation. Currently, the process of abortion is to kill the baby, then remove its body from the woman. This is clearly murder, so the law must abolish this abortion procedure and replace it with a procedure that simply removes the baby from the mother, but not kill it. The mother's rights are preserved and we are not directly killing a child. The medical team should make every effort to save the baby's life and if it survives and is unwanted, taken to a foster or adoption program. Unfortunately, current medical technology is limited and the baby will not always survive, which effectively ends in abortion. As technology progresses, the percentage of babies that can be saved will move higher and higher.
At the very least, we will have moved the needle toward saving the lives of unborn babies with a compromise that should be amenable to pro-choice proponents.
Rebuttal
Evictionism works great when the babies can survive, but a high percentage of abortions occur too early for the baby to have much of a chance of survival. It's like throwing an infant on a chopping block into a pool. Is it functionally any different? Why not just forbid the chopping up of an infant and not throw it into a pool? One person may have to care for it for a few months in a womb until someone else can take and care for it, but isn't that a small price to pay for a life not being gruesomely ended?
Honestly, I struggle to come up with a libertarian pro-choice rebuttal for evictionism, especially when the fetus is viable. I suppose one could say that a small percentage of abortions occur when a fetus is viable, but that says nothing about why evictionism should not be the standard over abortions. It's like admitting that killing someone is wrong, but murder shouldn't be against the law because it only happens occasionally. I'm not sure a solid argument actually exists. On one side, you kill a life when preserving female rights, on the other side, you let a life survive to the extent possible when preserving female rights. How could one choose the former over the latter when not doing some weird mental gymnastics over disproven Erlichian overpopulation theory?
Where I am
I probably have changed positions on this topic more than any other topic out there. The crux of this argument is, or rather, should be, about where life begins, and therefore, when rights begin. Some say it begins at birth, which I think is batshit insane, as a fetus one day before birth and a child one day old has no real difference, aside from geography and an umbilical cord. Some say it begins at conception since that's when a new DNA fingerprint is formed. I think that's also a bit wonky, as argued above, but it makes a much more convincing argument than at birth. Where I am currently at, is that the medical and legal definition of death is the cessation of brain activity, therefore birth should be flipped, where it is the beginning of brain activity. Unfortunately, this happens really early, at something like 6 weeks, before many women even know they're pregnant.
As such, I am pro-choice until brain activity begins, although, given that my confidence that I hold the right answer of the definition of when life begins is more humble than "fuck you, that's why" and that I concede others may have different values and claims, I can move the deadline for this to the end of the first trimester, especially if it helps make the legislation pass. From that point, until the fetus is viable outside the womb, I am pro-life. Sorry, although I know not everyone knows they're pregnant in the first trimester, if you couldn't make up your mind or find out until now, you just have to carry it to viability. From viability to birth, I am an evictionist. The baby can now survive outside the womb, you may now evict the baby from your body. The exception to the above is if the baby threatens the life of the mother, since the baby is now aggressing against the mother, even if not intentionally so. If the baby is determined to have an extremely low chance of survival, then it is similar to pulling the plug on someone in a coma with an extremely low chance of recovery.
This seems to be the optimal outcome, where the preservation of life and bodily autonomy are both maximized. Since most abortions are in the first trimester already, things mostly don't change for pro-life proponents. Their objections concerning the second trimester would only last a few months before the baby can be safely removed from the woman's body. The pro-life people would gain an additional trimester of what they wanted (before overturning Roe v Wade, abortion was legal in the first two trimesters or the third trimester if the mother's life is in jeopardy). Maybe that's not where their preferred destination is, but at least the train would get 66% there.
This will be solved by science and technology, not politics
Politics can only force one view down someone else's throat, and given political climates, the views are often just oversimplistic cartoonish views. How many people do you think have ever heard of evictionism? Of all Congressmen, how many have heard of evictionism? Do you think the number would even hit two digits? Therefore, the way this will be solved is through science and technology (or culture, but that doesn't seem to be budging in the foreseeable future). The viability of a fetus outside the womb will be moved earlier and earlier into the process, until a baby can be raised from a zygote to term. At that point, abortion will be obsolete, as the pro-choice argument will be just about completely null and void, since one can preserve the bodily autonomy of a mother at any point during pregnancy without an abortion. Abortion at that time would serve only to murder the baby.
In the meantime, libertarians would do well to understand that one can argue in good faith for any of the above positions from a libertarian perspective. If you are stating that one cannot possibly be a libertarian due to position x on abortion, you are likely not engaging in other opinions in good faith.
