Abortion, Choice, and Libertarian Principles, Part 2

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)

Part 1

On why life and personhood coexist from conception

The benefit of the doubt

Abortion was legalized by a 1973 Supreme Court decision on two cases, Roe v. Wade and Doe v. Bolton. In Roe, the Court raised "the difficult question of when life begins"—and confessed that it was "not in a position to speculate as to the answer." The Court didn't know—yet in effect it arbitrarily decided that life begins at birth!

What should the Court do when it is undecided on a pivotal question affecting two parties and feels it can't avoid making a decision? Tossing a coin won't do in such cases. The only reasonable course is to weigh the possible injuries that we would impose by a wrongful decision against either party and then choose to avoid the worst possibility. When a human being's life is on the block, a proper legal system gives the benefit of the doubt to life. This is why even advocates of capital punishment call for stringent proof. If those accused of felonies get the benefit of the doubt, why not the beings in the womb?

What are the possible wrongful injuries that the Court should have considered? The pregnant woman allegedly faces a partial and temporary loss of liberty; her fetus, however, allegedly faces the total and permanent loss of life and therefore liberty as well. The answer is obvious. The Court should have decided for life.

The Constitution affirms "the equal protection of the laws" for all persons. The Court circumvented this principle by dividing humanity into two tiers: a superior class of persons and an inferior class of non-persons. In doing so, it shifted the law from the level ground of equality to a slippery slope.

The "who decides?" fallacy

Some abortion choicers talk as if they don't care whether abortion is homicide; to them, the only issue is the pregnant woman's right to her body. But what about her right to her body when she was in her mother's womb? Was she a person when she was conceived? This question won't go away.

In considering the question, let's look again at the libertarian-sounding rights-talk. A sound bite abortion choicers use is, "Who decides?" One could respond, "Decides what?" "Who decides?" is clever propaganda. It appeals to our love of liberty, and its vagueness encourages the confused to sigh, "Oh, let the pregnant woman decide the status of her fetus." Treating personhood as a matter of individual opinion, however, can lead to strange results.

Imagine two pregnant women debating prenatal personhood. One says that her fetus was a person at conception. The other says hers won't be a person until birth. Both fetuses were conceived the same day. As the women debate, a drunk driver hits them, killing both fetuses. What wrong has been committed?

If it's a mother's choice whether her fetus is a person, then to be consistent, we would have to say that the death of one fetus is a homicide but the death of the other is only, say destruction of property. This is absurd, for the two fetuses who were killed are, objectively, the same kind of being.

Twins are born one at a time. One twin pops from the womb. If she is a person, why not the her twin who is just minutes from birth? Birth marks a difference in location but not a difference in kind. Getting older can make a difference how we function, but it doesn't change what we are by nature.

If, on the other hand, we were our mother's property when we began life, under the libertarian concept of property, she should be able to retain ownership as long as she pleases. She could keep us as slaves and bequeath us to others in her will.

No "moral in-betweeners"

Anyone who denies that conception is Day One for personhood has the burden of pinpointing when Day One is. And they must show why it is this day rather than one day earlier, or one day later. Our need for exactness on when personhood begins is inescapable, for we must not step on either a woman's or a child's rights. We need a sharp dividing line. There is no moral class between "person" and "non-person."

Abortion-choice theory, absent proof, sits on the horns of an impossible dilemma. Drawing a line even one day before personhood begins unjustly limits a woman's choice to destroy her property. To draw a line even one day after personhood begins is to permit unjust homicide.

Personhood is an either-or, an all-or-nothing, proposition because the right to be free from aggression is an either-or, an all-or-nothing. The right not to be killed cannot be put on a degree scale, because one cannot be "a little bit alive," or a "little bit dead." Killed or not killed is an either-or, an all-or-nothing. You are either dead or alive. You exist or you don't.

Thus, a so-called potential, partial, or lesser right to life—a right that can be set aside—is, in effect, no right at all. Persons have the right to life. If a being may be killed at whim, this being is not a potential person: this being is a non-person.

"Person" or "non-person" are constants. A person can have a better, or a poorer personality than other persons, but no human being has more, or less, personhood than any other. Just as the law has no power to give or withhold unalienable rights, it cannot give or withhold personhood. To be an actual person, human beings need do nothing but be alive.

When one human being can dictate whether another human being is a person, we should worry about our own prospects. I wouldn't want my personhood to be conditional under the law, subject to the arbitrary opinions of others. Would you? Yet, two tiers of humanity is precisely what abortion choicers support.

The answer to who decides when personhood begins is: Personhood is inseparable from the right to be free from aggression and both are inseparable from our life. We don't become persons; we simply are actual persons from Day One.

The hard cases

Once we recognize that abortion affects two human beings directly, then what about the hard cases? What about the mother's needs in case of rape, incest, or when her life is in danger? How one deals with them can be a test of whether one holds a one- or a two-tiered view of humanity.

The woman's life in danger is a life-boat type of case. In life-boat cases, two or more individuals are at risk, and none of them is at fault. Because none of them has a right to attack the innocent, none of them has a right to attack the others. The mother's right to self-preservation does not turn her child into a mere "thing" that she may destroy at will.

Life-threatening pregnancy is a medical emergency in which doctors can only do the possible. Their goal should be to save both patients, the mother and the child. The goal of a premature delivery is to help both. The goal of abortion, however, is a dead fetus; in fact, a live birth is a failed abortion.

Incest presents no special problem for rights if the female is a consenting adult. If she was raped, then adult or not, her role is involuntary and such unwanted pregnancy presents a peculiar problem for rights. Not just for the woman and her child but for observers. To explain this requires a discussion too long to include here, but for information, please see "Abortion in the Case of Pregnancy Due to Rape," an article by John Walker (available for $1.00 from Libertarians for Life). Walker shows that having been victimized does not justify harming any innocent person.

In any event, the hard cases do not obscure the fundamental issues. If abortion per se were not aggression, then exceptional cases like rape, incest, or the mother's life in danger would be non-issues.

Read part 3 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.