What is Evictionism? Walter Block’s Response to Abortion

Walter Block is well-known in libertarian circles. He’s a professor and chair of economics at Loyola University and a senior fellow of the Mises Institute. Block first articulated his position on abortion, known as evictionism, back in 1977 and is built upon Murray Rothbard’s work on property rights being the basis for human rights.

Block attempts to bring the strongest argument possible by assuming the strongest premises from both sides of the debate.

  1. That life begins at conception, and the fetus is a rights-bearing individual. (pro-life assumption)
  2. That a woman’s body is her own and she doesn’t have to allow it to be used for pregnancy against her will. (pro-choice assumption)

Many conservative pro-lifers suppose personhood legislation[1] would end the debate once and for all. However, Block argues that it changes very little. In Block’s view, an unwanted fetus is a trespasser, and therefore the unwanted fetus is violating the rights of the woman permitting her to act against it in self-defense.

This may sound jarring to our moral sensibilities, but so far, Block’s critics haven’t been able to  argue successfully against his position. At least, his critics haven’t been able to present a better theory consistent with libertarianism. Block’s motivation, however, is not to offer an “idealistic” theory incapable of concrete application. He claims evictionism is also pragmatic; practical, if acted on, in achieving one of the primary aims of the prolife movement – saving as many lives as possible. And Block believes it may even result in a fully pro-life society afterall, technology permitting.

Evictionism Defined

“While a pregnant woman should be legally required to help the fetus survive outside her body whenever that is possible, she retains the legal right to evict the fetus at any time during her pregnancy.”[2]

In Block’s view, eviction is a distinct element of abortion. It’s critically important to understanding Block’s argument that he doesn’t view abortion as a single act, but a complex action of eviction plus killing. More precisely, eviction (as opposed to abortion) is an early end to pregnancy that doesn’t unnecessarily result in fetal death.[3] A non-viable fetus[4] may be evicted from the mother’s womb even though it will inevitably result in fetal death.  Viability is the point at which a fetus can survive outside the mother’s womb.[5] By definition, a fetus cannot survive before “viability” and will die outside the womb.

Block argues that since the fetus is an “innocent trespasser”[6], eviction must be by the “gentlest means possible.”[7] Since eviction is a woman’s right as a property owner, there may be no legal prohibition against her liberty to evict. Since we do not yet have technology to extend viability to the earliest stages of pregnancy, lethal eviction during non-viability is, in Block’s view, the gentlest means of eviction possible, and does not constitute abortion.

Over time, technological advancement could extend viability to near conception, and make lethal eviction obsolete.[8] Surely, this creates motivation on the part of prolifers to push for medical innovations in order to save fetal lives, moving towards a legal order that permits only non-lethal eviction. Evictionism would also allow for present legal prohibition against late-term abortion. It would also legally require a woman who evicted her viable fetus to secure a substitute caretaker.

In the meantime, pro-choice women would only be permitted legal access to lethal eviction pre-viability. After viability, she could still have access to non-lethal eviction, thus protecting her rights to bodily autonomy throughout her entire pregnancy.

The key is property rights

The basis for rights in libertarianism is self-ownership, and is the key to understanding the rights of both the woman and the fetus. Unlike prochoice arguments, Block affirms the fetus is a person; a rights-bearing individual. However, being a rights-bearing individual in this instance isn’t enough in Block’s view to prohibit lethal options pre-viability.

First, holding to Rothbard’s view,[9] Block asserts that, technically speaking, there is no positive “right to life,” rather, we only have a negative right to not be aggressed against. Eviction and inevitable death of a non-viable fetus doesn’t count as murder or any other act of aggression in Block’s view. Why? Because in Block’s estimation, the fetus is a trespasser (an aggressor) – even if an innocent and unwitting one.

Block modifies Judith Jarvis Thomson’s famous violinist thought experiment and uses it to support his claim. It’s essentially this: if you woke up one morning, connected by medical tubes to the body of an unconscious violinist, surely you shouldn’t be legally obligated to remain attached, because that would constitute slavery. You are free to disconnect yourself, even though the violinist will soon die disconnected from your life support.

The violinist, though unconscious, is in effect trespassing the property of your body, and therefore you have the right to evict. It’s impermissible for you to end this involuntary connection by slitting the violinist’s throat; that would be unnecessary, and thus murder. You should notify someone that you intend to disconnect so that hopefully someone else can save the violinist’s life another way. But in the case this option is unavailable, you can legally disconnect the tubes in the “gentlest manner possible,” returning the violinist to his prior terminal condition apart from life support.[10]

An act of self-defense

Block himself identifies as “prolife,” but he also sees the issue of abortion as involving an intractable debate between one side that wants to uphold the rights of the woman at the expense of the fetus, and another side that wants to uphold the rights of the fetus at the expense of the woman. So it’s important to understand what his intentions are: namely, to reconceive the terms of the impasse.

In the case of a more typical trespass situation, removing an unwanted guest from your property is your right. It may be a matter of informing the guests you invited[11] to dinner, that the time is late and they need to go home. Or it could be a matter of warning a would-be thief at gunpoint to flee before you shoot. Either way, unwanted persons on (or in) one’s property is an act of aggression, and according to the non-aggression principle, the use of force is legitimate in response to aggression; that is, in self-defense.

For Block, the bottom line is this: Unless in response to prior aggression, no one should be forced to make use of their property (including their person/body) in some way against their will. Outlawing lethal eviction of non-viable fetuses would violate this principle, and would require lethal enforcement against a woman who makes such an attempt.[12]

Is this the best libertarian position on abortion?

Block’s position is intended to uphold the cornerstone tenets of libertarian philosophy: self-ownership, property rights as human rights, and the non-aggression principle. He’s also managed to defend his position well for the past 42 years.

What he sees as an intractable dilemma between two ever-polarizing sides, he says can be solved through advancement in medical technology and a “principled (legal) compromise.” He says this is a right form of compromise, because it protects a woman’s right to her body, while at least saving the lives of viable babies until technology has advanced to support life at earlier stages of development.

But is this the most consistent application of libertarian legal theory to abortion? Can we rightly categorize an unwanted fetus as a trespasser? Are Block’s premises consistent with libertarian theory? Are they self-consistent? Do parents owe duties and responsibilities to their offspring? I’ll answer these questions in response to Block’s view in a forthcoming article.


Endnotes

  1. Laws defining personhood as beginning at conception
  2. Soho Debate Resolution between Walter Block and Kerry Baldwin; on December 8, 2019 – click here for details
  3. The unnecessary killing of a viable fetus is considered abortion in Block’s view and should be legally prohibited.
  4. Non-viability is typically younger than 23 weeks gestation. From a medical or physiological standpoint, the primary factor in viability is respiratory maturity.
  5. Many prolifers argue that surviving outside the womb isn’t possible without the mother, or a surrogate, either, and therefore viability is a moot point. Block accounts for this, adding “most adults would not be capable of maintaining their lives marooned on a fertile island; we all need civilization, specialization, division of labor, cooperation with others, to survive.” Block, W. E. (2013). Toward a Libertarian Theory of Evictionism. Journal of Family and Economic Issues, 35(2), 290–294.
  6. meaning the fetus did not intend to cross a boundary but it’s none-the-less there.
  7. This is why he objects to late-term abortion. A late-term fetus, delivered early, can survive outside the mother’s womb, so killing is unnecessary.
  8. As in the case of artificial womb technology.
  9. Murray Rothbard, The Ethics of Liberty, pg 99
  10. The moral question this poses is not at stake for Block; it’s considered a separate issue. A legal requirement to remain connected to the violinist  would constitute a non-libertarian positive obligation to act as a “good Samaritan.”
  11. Block holds that consensual copulation doesn’t constitute a woman’s “invitation” to a fetus to live in her body.
  12. Block believes the only consistent prolife position is one that calls abortion first degree murder, and penalizes women who abort with the death penalty.

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B.A. Philosophy, Arizona State University. My writing focuses on libertarian philosophy and reformed theology and aimed at the educated layperson. I am a confessionally Reformed Christian orthodox Presbyterian in the tradition of J. Gresham Machen (1881 – 1937)
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