Abortion, Choice, and Libertarian Principles, Part 1

Pro-choice" was once a fine libertarian term. Today, it is a code word for abortion until birth. The libertarian meaning of the right to privacy also has been spoiled. The charge against abortion is that it is homicide, the killing of one person by another, and no homicide is a matter of privacy.

by Doris Gordon
Libertarians for Life
Copyright 1994 (December)

A libertarian framework

There may be no better issue than abortion for understanding libertarian talk. Abortion is not a victimless-crime debate. In victimless crimes, such as prostitution and using drugs, if there is harm, it is self-inflicted by consenting adults. Human zygotes, embryos, and fetuses are not consenting adults, and abortion clinics are not pleasure palaces.

Under libertarian principles, everyone, including children, has unalienable rights. This one-tiered view of humanity is the ethical premise of the Declaration of Independence, which says "that all men are created equal."

Libertarian principles don't say when the individual is created. They don't say whether it was at birth, viability, conception, or last week. They don't define such terms as men, human beings, persons, or children; they simply presume that we mean everyone. They don't tell us whether "everyone" included you and me before birth. However, an all-inclusive, single-tier view of humanity recognizes, as libertarian principles do, the inseparability of our life and our rights. In contrast, under two tiers of humanity, society and/or the law arbitrarily decides who's in and who's out. For example, in the past, women's right to own and control their own property was severely limited by law.

Is conception Day One in our life? Two-tier advocates generally don't deny that it is. But, they argue, we were only a human organism then; we don't become a human person until later. Exactly when that moment is and what is the magic that transforms an organism to a person, they aren't sure.

Two tiers of humanity is unlibertarian, because it separates life from rights. It's bad enough when our rights are infringed. When personhood is obliterated, rights are not in the picture at all.

Personhood is the foundation of our rights, and it is pivotal in the abortion debate. If no person is killed by abortion, there is no libertarian objection to abortion. Libertarians for Life holds that we are human beings and persons from conception, and we explain and defend our position in some depth in our literature. At this time, however, I will only outline our argument:

1) in biological terms, conception is Day One in our life; we are all former zygotes, embryos, and fetuses; none of us was ever a sperm or an ovum;

2) a line drawn for when personhood and rights begin, other than at conception, is merely arbitrary;

3) we were persons even when we were zygotes because we had then our capacity, our potential, for reason and choice; it is a potential that we never fully develop, but it's a potential we lose only on death;

4) human zygotes are persons with potential, not "potential persons"; they are actual persons with rights;

5) any argument that attempts to exclude immature human beings from personhood or from rights also logically entails the legitimacy of excluding more mature human beings, people who are very old, senile, mentally retarded, etc., because such arguments measure personhood only in terms of activities a particular individual can perform right now.

The non-aggression principle

If prenatal human beings are persons, then abortion is homicide, and the argument that a woman has the right to control her own body doesn't cover this fact. The libertarian-sounding rights talk we hear from abortion choicers is generally an attempt to avoid this discussion. Nonetheless, when abortion foes respond to rights-talk, we have to do so on the level of rights. My purpose here is to argue from a rights perspective.

Interestingly, many people on both sides of the debate see abortion as an insoluble clash between the child's unalienable right not to be killed and the mother's unalienable right to liberty. Abortion choicers defend abortion as an escape from slavery. (This was once my view.) Pro-lifers say: Respect life. And both sides argue over which value is higher, life or liberty.

Obviously, both are priceless values, and who would want to lose either? However, we should not confuse values and rights. Some things can have a greater or a lesser value than other things, but here, we are discussing our unalienable rights to things we value. Nobody's right to life or liberty is higher or lower than anyone else's right to the same.

A "right" is a claim by one person against another person to be given what is owed. So, what do we owe one another? What we owe each other, basically, is non-aggression.

To "aggress" is to initiate physical force against innocent people or their property, to commit fraud, or to fail to pay our debts. Even endangerment, the threat of aggression, can also be aggression. However, force per se is not necessarily aggression, as when used in defense. Defense is a just response to aggression, if the force is proportionate to the aggression.

Your right to be free from aggression implies my obligation not to aggress against you. You also owe me non-aggression. Obligations and rights are opposite sides of the same coin. Non-aggression is a constant obligation life-long, like it or not.

The non-aggression principle is the foundation, the sine qua non, of a good society. This principle is pre-political and pre-legal. It does not arise out of contract, agreement, or the law; rather, such devices presuppose this principle. The unalienable rights to "Life, Liberty and the pursuit of Happiness" announced in the Declaration of Independence are applications of the non-aggression principle. The non-aggression principle would exist even if there were no state, no Ninth or Tenth Amendments, nor any Constitution whatsoever. Our right to be free from aggression is pre-legal.

And so is our personhood from which this right flows.

Unalienable rights can be respected or violated, but they can neither be bestowed, as a sort of gift, nor withdrawn, as with a loan. Unalienable rights are logically necessary to the concepts of liberty and property. If they were myths, then earning money versus stealing it and consensual sex versus rape would be morally indifferent behaviors. Anyone who says aggression is unjust, or calls abortion a fundamental right, agrees that there are unalienable rights. Both sides of abortion generally agree on the primacy of such rights.

Just limits to state power

But agreeing to the primacy of unalienable rights in principle, we have to ask how we may deal with them in practice. What is the relationship of government to unalienable rights? Is there a just limit to governmental power, and if so, what is it?

We have no obligation to permit aggression, and it is not aggression to outlaw aggression. But behind every government law is the sword, the threat of lethal force. So we must ask, when, if ever, may the government raise the sword? The libertarian would respond, "Do you or I personally have a right to raise the sword in order to achieve a value?" If we don't, then we have no just power to do so and no just power to delegate to a government to do so.

This is affirmed by the Declaration of Independence. It says, "Governments are instituted among Men, deriving their just powers from the consent of the governed." To illustrate consent of the governed, our right to spend our money includes our right to give others a power of attorney to spend it. We cannot give others a just power to spend our neighbor's money, because we have no just power to do so ourselves. A just police power is limited by the non-aggression principle, because a just state is only an agent of individuals bound by the non-aggression principle. No state has a just power to aggress, and no law or Constitution can negate this principle.

Majority rule can neither withhold personhood nor nullify unalienable rights. The strong have the brute power to legalize injustice, but might cannot turn a wrong into a right. When aggression is legal, it masquerades as justice, but it remains aggression.

Accepting that government should be limited makes it easy for some people to say, "I'm personally opposed to abortion, but let's keep it legal, because the state should be neutral." On the surface, that sounds libertarian, but can the state be neutral as regards rights? Not in its own jurisdiction.

The state doesn't have the option of sheathing its sword and letting people fight it out in the streets, because "free-fire zones" are unthinkable in civilized societies. When one side claims a right to act and the other claims a right to stop the act, the state can't enforce both claims; it can only enforce one or the other. The state is certainly not neutral when it enables killing by legalizing it, subsidizing it, and giving it police protection. Neither is it neutral when it forces taxpayers to pay the bill. A government that sides with aggressors at the expense of their victims is itself committing aggression.

One more point about the sword. There is no such thing as a right or a just power to expose the innocent to attack. To disarm the innocent is to limit their ability to defend against aggression. When government restricts the just personal use of the sword, this can leave the innocent helpless against attack and in danger of harm. Because there is no thing as a right, or a just power, to endanger the innocent and let them be harmed, the government has the duty to protect them from harm. Government forces us to pay taxes, claiming the necessity of defending the innocent. Taking money under false pretenses is fraud.

Let's now return to why abortion is aggression

Read part 2 tomorrow...

These remarks were presented at the University of Chicago on November 10, 1994; the program was sponsored by the Pro-Life Association of the University of Chicago.

Reprinted by permission of Libertarians for Life.