In this thread, LibertyGibbert will look at the topic which, more than any other, divides Libertarians. It’s a topic I have been reluctant to raise on this forum till now; indeed, I have been advised by some of you that no rational online debate on it is possible; given its ongoing relevance, though, I have decided to bite the bullet and give it a go.
I am going to run this thread a little differently to normal. Firstly, due to the gravity of the subject matter, may I request that all comments be strictly on-topic. I’m going to make an exception to my usual rule here, and I will moderate any comments that are off-topic or are getting out of hand. Naturally, within those constraints, as always I’m inviting the widest possible range of opinion. I’ll leave the previous thread open for more light-hearted conversation; and of course, there’s the Music Room.
Secondly, unlike previous topics related to Libertarianism, I am not going to push a particular viewpoint, for or against. It isn’t that I don’t have an opinion; on the contrary, I have given this matter much thought over the past thirty years. I believe, however, that much of the hysteria surrounding the abortion debate lies in the way the debate has been framed, using the emotive but spurious language of rights. Today, I will attempt to re-frame the debate, though in order to do so I am going to have to fly in the face of a long-held Libertarian maxim.
The debate among Libertarians on abortion is captured well in the clip below from the John Stossel Show (it covers immigration and gay marriage as well; they turn to the abortion issue at 6:42)
As you can see above, the debate is portrayed as a contest of liberties: primarily, the liberty of the pregnant woman, versus that of the unborn child. It seems fairly obvious, though, that even among the learned panellists above, liberty becomes a mere placeholder for rights. More promising in the above debate, is the concept of liberty beginning with ownership of self—so that the state cannot own a pregnant woman’s body or, if you prefer, that that woman cannot own the body of her unborn child; if such, indeed, it is. So, let’s begin by disposing of the arguments, on both sides, based on any assertions of competing rights.
Forget About a “Right to Life”
Yes, yes, I know: the United States Declaration of Independence, paragraph two, sentence one. It’s right there, in black and white. For the strict-constructionist Americans among you, I had better warn you that I’m about to commit a heresy. So look away now. But an absolute, unqualified right to life—one that precludes all argument, and can be automatically extended as such to a foetus—is bullshit.
Who do you see proclaiming such a right? The Church? Two thousand years of blood-drenched history says that the Church’s commitment to such a right is highly selective, and anything but absolute. You have only to go as far back as the atrocities of Croatian priests in the NDH in 1941, or Bahutu priests in Rwanda in 1994, both of whom counted the murder of hundreds of pregnant women among their catalogues of barbarities, and neither of which—to this day—has been unequivocally condemned by the Vatican, to illustrate the point. The pro-life movement in the United States? The ones who either colluded in, failed to unequivocally condemn, or benefited from, the bombings of abortion clinics, once again murdering pregnant women and their unborn children along the way? I think not. The governments of countries outlawing abortion? Don’t make me laugh: go have a look at the list—a veritable atlas of government corruption and brutality.
The fact is, a genuine right to life, were it to exist, must by definition take precedence over every other right. Ask yourself: is there nothing for which you would be prepared to die? Or even be prepared to kill? The framers of the U.S. Declaration of Independence and Constitution clearly had British colonial oppression, and not abortion, in mind when they spoke of a right to life, but even they put other rights above it, and were prepared to go to war to uphold those superior rights. And as understandable as that may be, in the process they invalidated any right to life as being absolute and extensible.
Those proclaiming a right to life in such terms are not only displaying hypocrisy, but a misunderstanding of what a right actually is. For if a right to life truly existed, then every death is a violation of that right. Easy enough to imagine, if someone is murdered. What of those who die of natural causes? Is God a serial violator of man’s most fundamental right? As I demonstrated back here, a right that cannot be enforced is meaningless. My own considered opinion is that a right to life cannot exist, unless we a) change our entire culture and laws to place this right above every other right (clearly out of the question), or b) rank other rights above life, as we do today. But a right to life, subordinate to any other right, is little more than empty rhetoric: there is no right you can exercise, once you’re dead.
That a spurious “right to life” cannot be used to support it, does not by itself invalidate the argument that abortion should be illegal. It does mean those arguing the pro-life position will need to use other and better arguments than those couched in the language of rights. For example, we already have laws against murder on the statute books, for reasons so obvious they require no explanation; should not those laws also cover the unborn? It’s a matter of proving the foetus is a human being; do that, and all else follows.
Forget About a “Right to Choose”
A “right to choose” is what you have when you’re standing in aisle five of the supermarket, staring at fifty-seven different brands of olive oil. In this debate, the right to choose is an ugly euphemism and an evasion. Let’s call things what they really are: what is being claimed here is a right to abort a foetus. That is what abortion advocates really mean by choice.
All right—a right to abort a foetus. Says who? Where, exactly, does this right come from? What are its historical antecedents? I know of none in Western culture, but feel free to supply them if you know of any. I’m not speaking here about celebrated examples of abortions in literature and history; all of those occurred without a thought for the law, or codified rights. Of course, I pointed out here, a liberty right can be inferred when no claim right to the contrary exists.
Hang on a minute Ozboy—haven’t you just contradicted yourself? Only a moment ago you argued that a right to life, as generally construed, is nonsensical. Doesn’t it follow that a right to abort, or even murder, can be inferred?
Well, to the pedant, perhaps. But we have statutory laws against murder, which function perfectly well without any need to invoke rights. Those laws are not absolute, and allow the deliberate killing of other human beings in certain circumstances (most typically self defence, or police officers, servicemen or state executioners in the discharge of their duties). That’s why personally, I’m quite sceptical about the need for a separate charter, or bill, of rights, which tend to encourage judicial activism wherever they can be construed as conflicting with statutory law (“Thou shalt not…”) or the Constitution (“Governments shalt not…”); that is, just about everywhere.
Roe v. Wade and the legalization of abortion
In 1969, a homeless, twenty-one-year-old Texan woman, Norma McCorvey, being single and pregnant for the third time, attempted to obtain a legal abortion using the rape/incest provisions of Texan state law, by falsely swearing an affidavit that she had been raped. The State of Texas, having disallowed this, forced Miss McCorvey to carry the baby—subsequently placed for adoption—to term. She was later referred to two young activist lawyers, Linda Coffee and Sarah Weddington, who were at that time looking for a plaintiff to pursue a test case challenging the validity of Texas’ abortion statutes. Filing suit in 1970 in the U.S. District Court under the legal pseudonym Jane Roe, and claiming that Texas’ restrictive abortion laws were unconstitutional, they named as defendant Dallas County District Attorney Henry Wade (already well-known for his 1964 prosecution of Lee Harvey Oswald’s killer, Jack Ruby), representing the State of Texas Northern District Court. The District Court having ruled in McCorvey’s favour, the State of Texas appealed in the United States Supreme Court, which heard the case in conjunction with Doe v. Bolton, a similar case involving the State of Georgia. In January 1973 the Supreme Court handed down its ruling dismissing the appeal, by a majority of 7-2.
While the consequences of Roe v. Wade have rendered it a touchstone for advocates on both sides of the abortion debate, not only in the United States but internationally, it is a decision which, outside of the legal fraternity, is widely misunderstood. In fact, what lay at issue in Roe was neither the legality nor the morality of abortion, but the right of states to enact legislation which may be construed to violate Federal constitutional guarantees; specifically, the due process clause of the 1866 Fourteenth Amendment to the United States Constitution, and to a lesser extent, the privacy provisions in the 1st, 4th, 5th and 9th Amendments (same link). In handing down the court’s opinion, Justice Blackmun recognized in the preamble the wider social ramifications of the case that went beyond the dry legal question:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.
After a lengthy and somewhat discursive look at abortion laws down the ages, he gets to the meat of the issue: state abortion laws in the United States, Texas in particular and their standing, concluding that a more liberal approach to abortion was in fact the norm in the early history of the Republic:
It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
The decision at many points makes the distinction of “viability”, that is the ability of the foetus to survive outside the womb, before going on ultimately to rule the Texas statute as unconstitutional.
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.
The principal dissenting opinion to Roe was written by Justice (later Chief Justice) Rehnquist, in which he highlights what he saw as the over-reach of the Court’s decision:
Nothing in the Court’s opinion indicates that Texas might not constitutionally apply its proscription of abortion as written to a woman in that stage of pregnancy. Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for deciding that States may impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied”.
The other dissenting judge, Justice White, was even more scathing in his views on what he explicitly regarded as judicial activism and the usurpation of states’ powers by the Supreme Court:
With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.
Neither dissenting Justice, it can be seen, based their opinions on any philosophical opposition to abortion per se, but on the interpretation of Constitutional law and the balance between state and Federal power intended by the Constitution’s framers. Nonetheless, Roe v. Wade remains to this day, possibly the primary “litmus issue” applied to Supreme Court presidential nominees, who since 1925 have been required to appear in confirmation hearings before a Senate committee, prior to their nomination being formally ratified.
Utilitarianism and the Freakonomics argument
Many abortion advocates invoke Utilitarianism as the framework which justifies their cause. The philosophy of Jeremy Bentham and John Stuart Mill does not proceed deontologically, that is from any axiomatic rights or principles, but teleologically, or towards the stated goal of the greatest good for the greatest number. The morality of an action can thus be judged by its consequences, not its conformance to a pre-existing code. It will be obvious that, applied to the abortion question, such a philosophy neatly side-steps many of the thorniest questions, either philosophical ones regarding rights, or moral or theological ones pertaining to the sanctity or otherwise of human life, or scientific ones addressing the development of the foetus in the womb.
The Utilitarian argument for abortion received a powerful boost in 2001 from the University of Chicago’s Professor of Economics, Steven D. Levitt. In that year, Levitt, together with Yale University’s John J. Donohue, published a paper in the Quarterly Journal of Economics entitled The Impact of Legalized Abortion on Crime; it subsequently formed a chapter in Levitt’s best-selling 2005 book Freakonomics, from which it is most frequently cited. In it, Levitt noted the triumphalism in the late 1990s of then-New York City mayor Rudolph Guiliani in proclaiming the drop in crime in his jurisdiction following his introduction of the Broken Windows approach to crime control—the prosecution of minor offences, and orderly maintenance of the urban environment, typified by the prompt repairing of any broken window.
The problem, as Levitt pointed out, was that other cities which had not implemented the same policies had recorded similar drops in crime, and that the drops had generally commenced in around 1991, three years before Guiliani’s first election as mayor. Using a number of statistical proofs, Levitt and Donohue have demonstrated that the legalization of abortion in 1973 following Roe v. Wade, had by 1991, eighteen years later, led to a situation in which the children of unwanted pregnancies—overwhelmingly from lower socio-economic or otherwise disadvantaged backgrounds, and statistically more likely to commit crime, and who would otherwise have reached majority in that year—had in fact never been born. The clinching argument was the fact that the drop in crime, which occurred across all 48 contiguous states, occurred earlier in the same five states which had legalized abortion in 1970, three years ahead of Roe.
On the face of it, Levitt’s thesis seems unassailable, though there have been several attempts to refute it. Those I have read seem to me either hopelessly convoluted or needlessly ad hominem. I think that even opponents of abortion would have to concede that, from a strictly Utilitarian viewpoint, the legalization of abortion does indeed lead to a drop in the crime rate.
Once you embrace Utilitarianism, however, you are proclaiming that you admit to no higher, a priori moral principles; that the end does, in fact, justify the means. I imagine I would personally find it impossible to persuade someone who truly believes this, as to do so would involve arguing on his own ground, presupposing moral principles either do not exist or are irrelevant, and leaving me hopelessly out of my depth. Certainly, Utilitarianism would tend to argue in favour of abortion on-demand, and the logic is internally self-consistent. But what else would it argue for? Slippery slopes appear around every corner, once you start invoking utility rather than liberty to justify an issue like abortion.
The pathway to a solution
Unless you subscribe to Utilitarianism, the crucial question must be, at what point does human life begin? Many abortion advocates claim that a foetus is little more than a piece of tissue, and being topologically within, and reliant for life upon, the human nourishing it, it must for all moral purposes be considered part of the mother. This argument has merit (listen to Libertarian feminist Wendy McElroy in the John Stossel clip above), primarily as it invokes the liberty of the pregnant woman, a liberty which must begin with her ownership of self—including under this construction, therefore, the foetus. It has merit, but is open to challenge by those producing evidence that the foetus has a life separate from that of the mother, over-riding in significance its topological and biological relationships to its mother, and pro-abortion advocates need to address this point. If the foetus, particularly at an early stage of development, cannot be shown to hold such a separate life, then there is no moral difference between an abortion and a haircut. Christian theologians, however, would argue from the standpoint of the foetus’ potential—that the unborn foetus is not a potential human being, so much as a human being with potential. The difference is crucial.
Not so crucial, however, if you are Peter Singer, Professor of Bioethics at Princeton University. We have encountered the good Professor before on this site, dealing with his seminal 1975 publication, Animal Liberation. In it, drawing a moral equivalence between animals and humans, he sees no particular issue with abortion, any more than with the culling of a group of animals which has reached plague proportions. He quite explicitly denies that human life begins at conception, or is indeed atomic; that is, “begins” at any one point at all, but rather develops gradually. If pressed to provide a dividing line, he uses the capacity to feel pain, developed by the human foetus at about 20 weeks’ gestation, as the criterion of becoming a moral agent of any significance, however slight. Singer recognizes and—to his credit—at least embraces consistently the “slippery slope” of his Utilitarianism, seeing no moral problem either with infanticide, or other forms of what he pleasantly terms involuntary euthanasia. While perfectly logical, I can think of several twentieth-century leaders who would have given their right arms to have had Singer active in their day, while they were selling the exact same message, albeit in less circumlocutory terms. In any case, Singer’s defence of what he terms zoophilia (I’m sure I learned of it under another name than that) renders him incapable of being invoked to justify anything—at least, in any polite company.
Then there are those who would argue that regardless of the starting point for human life, any violation involved in ending that life is outweighed by the putative suffering endured by a woman forced to carry an unwanted baby to term. Few would fail to be moved by this account by a veteran Sydney obstetrician, of thousands of young birth mothers in the 1960s, unable to procure a legal abortion, having their babies forcibly removed from them and offered up for adoption. In fact, the current Australian Senate inquiry into forcible adoptions has, even as I write this, today handed down its recommendations, including that state and Federal governments formally apologize to these women and their children. Or for that matter, the long-term suffering—not to mention the cost to society—endured by a woman forced to raise an unwanted baby, generally on her own.
These can actually construe a valid and coherent argument, provided you understand the principles being invoked to support it, and their consequences if legitimized. Once you have accepted the principle that, either for the good of society, or to assuage the suffering of a pregnant woman, it is permissible to end the life of a human which is not quite complete, non-viable, incapable of feeling pain, or defective, or whose continued existence would pose society problems later on, you have embraced the collective Utilitarianism of Bentham and John Stuart Mill and will have to justify abortion on those grounds. And then, you simply cannot avoid the slippery slope you have just stepped onto, and will find yourself in the position of having to justify the killing of other incomplete, non-viable, defective or societally detrimental humans. You’re heading into some potentially very nasty territory unless you can demonstrate beforehand that the unborn foetus is not in fact a human being at all.
From a practical viewpoint, I would be able to take more seriously those opposing abortion in all cases, particularly in cases of rape, incest or where it is known there is a serious congenital medical abnormality in the foetus, if they would be more forthcoming in explaining how, once they have succeeded in imposing their will on the unwilling expectant mother, and to that extent depriving her of her liberty, they propose to assist her in supporting the child once born. I would also be most interested in learning whether, or how, in 2012 they plan to prevent a pregnant woman from obtaining information about available abortion services, or restrain her from travelling to a neighbouring jurisdiction to procure an abortion not available in her own locality, such as occurred in many U.S. states prior to Roe v. Wade (and favoured by current Libertarian presidential candidate Ron Paul), and occurs still in Ireland to this day. Or how, if they somehow manage to render that option difficult or even impossible, they propose to stamp out the historically inevitable consequence of backyard amateur abortionists, equipped with makeshift instruments, minimal sterile facilities and the resultant deaths arising from septicaemia, air embolism and numerous other complications.
Those who, at the other extreme, advocate even on-demand late-term abortions, or even so-called fourth-trimester abortions (that is, legalized infanticide), would do well to explain how the principle they have just endorsed can be prevented—or even should be prevented—from being extended further, to… well, I leave that your imagination. I note for example, the case of the Illinois state legislature, which in 2001 debated a bill protecting an infant who somehow survived a late-term abortion. While it will not surprise you that, with near-unanimity, the legislators regarded such an infant as a human being, deserving of every protection under the law, it is of interest to read the dissenting arguments of the sole state senator opposing it who, having argued that no restrictions whatsoever should be placed on a mother wishing to abort her child at any time, remarked that were the product of a failed late-term abortion be allowed to live, “then this would be an anti-abortion statute”. Once again, quite consistent. But the principle on which it is founded was not mentioned.
Nothing any of us can say here will be the last or definitive word on the subject; it’s too wrapped up in sentiment, factionalism and ideologically-driven opinions long set in stone. On both sides. Those who wish to argue publicly either for or against abortion would do well to take a hard, objective look at the principles they are invoking in support of their case, and where those principles, if taken seriously, inexorably lead. Particularly on a Libertarian forum such as this, the issue of abortion, weighing as it does competing liberties, has no one solution that will satisfy everyone. But liberty is the prime consideration on which we should be focussing. I don’t propose to deliver a polemic of my personal views, if for no other reason than I have spent too much time studying, and have come to appreciate, both sides of the issue (if you really want my own opinion, you can probably gauge it by clicking the photo at the top). But even if we cannot find a definitive answer, I believe here at LibertyGibbert we are at least asking the right questions.