Libertarianism, Abortion, and Fetal Self-Ownership (1 of 2) Episode 009: Dare to Think Series32 min read
Libertarianism, Abortion, and Fetal Self-Ownership (1 of 2)
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I’ve been exploring and challenging today’s prochoice/prolife paradigm surrounding the abortion debate. If you’re just joining my podcast for the first time, please listen to the previous episodes. I discussed the major problems with both sides of the abortion debate already. I’ll link those in the show notes. This episode comes on the heels of NY making abortion legal up to the point birth, the VA governor defending infanticide of newborns, and on the cusp of NM legislatures entertaining legislation to criminalize doctors who REFUSE to perform abortions. Meanwhile, prolife rhetoric focuses on passing legislation criminalizing abortion, by charging women who abort with 1st degree murder. Is this what this polarized topic has come to? A race to see who can criminalize their opponents, first? As a libertarian, I’ve seen a fair share of polarized disagreement here too, with many libertarians proclaiming that we’re “pro-choice in everything.” But I want to challenge the notion that libertarianism, as a legal theory, supports the right to abort, and maybe this can contribute something new to the abortion debate that begin to diffuse the conflict between both sides.
The content for this episode is twice the length I’d prefer to have these episodes be, so I’ve split it into two episodes. The first half, published today deals with the question of whether the fetus is a self-owner, and therefore has negative right to non-interference. The second half deals with the question of whether the fetus has a natural positive right against the mother to provide life support.
As always, the resources and manuscript for this episode are available for download from my website, at mereliberty.com/009
My analysis of the abortion debate so far has only addressed the ethical and praxeological perspectives. In other words, they only focus on human action and whether we ought to consider certain actions to be immoral. But because this issue involves a question of human rights, we must say more on it. So far, libertarians have stated that you can be either prochoice or prolife, but have taken the position of defaulting to the woman’s choice when it comes to the legality of abortion. And certainly prolife and prochoice libertarians have common ground in that we agree abortion shouldn’t be subsidized by tax payers. But if libertarians cannot provide a consistent answer concerning the rights of women and the fetus, then libertarianism will suffer the same self-defeat that the progressive pro-choice view suffers.
Libertarianism isn’t an ethical theory, however. It’s primarily a legal theory. So even though we can undeniably establish that abortion is an unethical human action, in order for libertarianism to take a stance, we must objectively show it to be criminal. In other words, we must show that abortion is an act of aggression against another self-owner, namely the fetus.
To do this, we must establish that the new human life at conception is a rights-bearing individual (as distinct from the broader concept of personhood), and that abortion is a form of aggression.
Join me, Kerry Baldwin, as we Dare to Think, about Libertarianism, Abortion, and Fetal Self-Ownership.
As it stands, the heart of the current abortion debate involves questions of personhood and ethics. We know personhood exists; we couldn’t have concepts of rights or ethics without it. So while it seems reasonable to discuss rights in these terms, personhood cannot be the basis on which we determine the legality of abortion since what constitutes personhood cannot be empirically (or undeniably) established. And this isn’t an unreasonable claim. The legal definition of personhood beyond mere human existence, has not been necessary for legal protections of rights. In fact, it’s only when we‘ve defined personhood beyond mere human existence that we end up with all sorts of oppression. While personhood is certainly a worthwhile topic to discuss, our lack of consensus should lead us away from defining rights (as a legal concept) based on contrived notions of this metaphysical idea.
What we have consensus on is that a new human life begins at conception. This consensus allows us to make an ethical argument against abortion, as I’ve done in the second part of this series, but this is where the public discussion typically ends; what’s being debated is a question of who has the moral high ground. Is abortion the greater sin, or knowingly bringing a baby into a world where it’s not wanted? But the more pressing question is whether the decision to abort is of legal concern. Both sides of the abortion debate succumb to two fallacies: They both ignore things unfavorable to their view and they both overlook the secondary consequences of their view. This leaves the rights of women and the unborn ambiguous and contradictory.
What do libertarians mean by rights?
To attempt to clear the confusion concerning legality, I’m taking you back to basics. I’m looking at Murray Rothbard’s approach to human rights. According to Rothbard, human rights are best expressed in terms of property rights, and there are two senses, he claims, in which this holds true. First, property only accrues to humans and second, self-ownership entails having possession over one’s own body. Expressing human rights in terms of the property ownership in one’s self, rather than in our desires or even needs, we can see more clearly where true rights arise and where they do not. Explaining human rights in terms of property rights, disambiguates human rights. When human rights are expressed in this way, conflict can be avoided because accurately assigned rights are a reflection of reality and not an attempt to manipulate it. When property rights are not accurately assigned, then conflict is unavoidable because these assignments are not a reflection of reality. In the case of abortion, I contend legal conflict still exists because property rights have not been accurately assigned.
Why are property rights the basis for human rights?
Libertarianism holds that rights are inherent in the individual. No one gives us our rights, they don’t come from an external source. Austrian economic theory claims all human rights are property rights; self-ownership being both the ultimate human right and the ultimate property right. Therefore, the libertarian claim of inherent rights is grounded in the Austrian economic principle of property in one’s own body, also known as self-ownership. And since the highest claim of any property is the property owner, the highest claim to one’s body is the body’s owner.
Self-ownership is a foundational libertarian principle. It means no one else owns you, and no one else has a legitimate claim to own you. You have a right in yourself because you own yourself. In fact, Rothbard claims that libertarianism articulates the entire structure of property rights which is sufficient for establishing human rights. He calls self-ownership a “primordial fact.” And since this structure is deduced from nature it is therefore obtained; in other words, it’s inescapably true.
This inescapable truth gives us an avenue to avoid conflict; property rights themselves don’t avoid conflict, rather they allow us to avoid conflict. They are recognized, implicitly or explicitly, by everyone to some degree or another. (Even Socialists who often speak against individual property rights, speak in favor of the government’s right to property.) So we know when a property owner is identified, the rights in question become obvious.
Couching abortion in terms of “reproductive rights,” rather than property rights, actually erodes human rights. We confuse what rights really are when we categorize them in ways other than property rights. By doing this, we inevitably curtail real rights believing them to be relative rather than absolute.
A prime example of this happened with the 1917 Espionage Act. Justice Holmes’ writing on behalf of a unanimous Supreme Court, contended the right to free speech must be tempered by the law when a “clear and present danger” exists to the government’s war efforts. This resulted in his now infamous analogy of falsely shouting fire in a crowded theater and is why Edward Snowden’s whistleblower status is not being protected. When the state remains in a constant state of war, it can declare any speech in opposition as harmful to their effort, and therefore suppress it. So now we treat free speech as a relative right, rather than something clear and absolute.
The result of mis-categorizing speech in terms other than property rights, has only weakened human rights overall. Rothbard contends that speech didn’t need to be legally curtailed if we had merely identified the property owners in the crowded theater analogy. An individual doesn’t have a right to shout fire in a crowded theater because 1) the theater isn’t his property, and 2) because the patrons have exchanged their money (property) to be there for a particular purpose. Rather than appealing to property rights, Justice Holmes’ appealed to the state’s interest of secrecy thereby infringing on the genuine rights of individuals to protest or speak against the actions of the government.
Rothbard’s reasoning applies to the abortion issue too: Both pro-lifers and pro-choicers weaken human rights on the whole for the sake of their motivations and political agendas. Pro-choicers weaken the human rights of marginalized groups (as I discussed in part 2 of this series) and pro-lifers weaken the rights of women (as I discussed in part 1).
By not understanding the property rights relevant to abortion, we unwittingly weaken rights for so many others. Understanding the property rights concerning pregnancy and the fetus allows us to get a clearer perspective on the legal nature of abortion as well as human rights overall.
What’s at stake in the abortion debate is the question of absolute self-ownership as opposed to partial or no self-ownership. Does pregnancy negate (even if temporarily) the woman’s absolute self-ownership? Does motherhood? If Rothbard is correct, and the entire structure of property rights is articulated in libertarianism and is sufficient for establishing human rights, then it’s unreasonable for libertarianism to remain nebulous on the legal question of abortion.
Normally, particular resources are assigned to particular owners, but they must not be arbitrarily assigned, otherwise there is an increase in the probability of conflict, as in the case of socialistic models. To allow conflict to be avoided, property rights must be accurately assigned – they must be based in something objective; as a reflection of reality and not merely subjective on the basis of emotion, experience, opinion, forced social constructs, or even need.
How do we accurately assign rights?
Historically, the classical liberal tradition identified property rights by way of John Locke’s Homestead Principle. Locke’s homestead principle establishes the idea of “first use,” which is how we determine ownership of property outside the body. Here’s how it works:
An individual human finds himself in the state of nature; the world; the environment in which he lives, and must use something from his environment in order to continue to live. So he appropriates a portion of nature and mixes it with his own labor to produce something. That might be clothes to wear, food to eat, or shelter to protect himself. First use requires that the resource taken from nature is not previously owned. According to Locke, something becomes owned upon the first use of it. Whatever the resulting product is, is the property of the individual human who created it. The product can then be exchanged with someone else, thus transferring ownership.
As a side note: property rights are not exclusively individualistic. Roderick Long, professor of philosophy at Auburn University, argues for the Austrian case on common property among unorganized collectives of people that is in agreement with the Lockean view of first use. This idea will become obviously necessary a bit later in this episode.
So Locke argued that first use establishes ownership. But Stephan Kinsella, a property rights attorney and contributor to the Mises Institute, points out that “first use” is insufficient for establishing self-ownership, since we don’t acquire an unowned body from nature. So he refines the homesteading principle using the concept of the objective link.
The objective link is a direct connection between an object/resource and the subject/owner in question. This link must be recognizable to more than one conscious mind.
Kinsella borrows from Hans Herman Hoppe’s argumentation ethics. Hoppe states that, “if I think ‘raise my arm’ I can raise my arm, and therefore the will is the objective link.”
Hoppe’s problem however, is that the ‘will’ itself isn’t the direct connection. A paraplegic can think, “move my legs,” but, his legs not having moved has no bearing on whether there is an objective link in the paraplegic’s legs. Now, I can think “raise my arm” and not actually raise my arm. In both mine and the paraplegic’s case, our will is not connected to our self-ownership. The paraplegic still has self-ownership, even though he can’t will his legs to move, and I have self-ownership even though my lack of action overruled my thought about moving my arm. So rather than identifying the will, we need to identify the observable connection that Hoppe attempts to illustrate.
The point here is the objective link is not external, but internal – more precisely, it’s the biological processes that operate independently from any other body. I can’t think “raise my arm,” and then raise your arm. I can’t will your arm to move without using force, and my biological processes are not in direct and immediate control of your arm. My brain only sends signals to my body, not yours. I am not naturally equipped to have direct control over your body, and neither are you over mine.
This means that what our body does is directed, first, by biological default. The immediate nature of control is the proximity; it’s immediate to the body and the most immediate it can be is in the internal biological processes. The paraplegic is still a self-owner, because enough of the life-giving biological processes are functioning.
Moreover, we don’t need to have a conscious awareness of the process at work for it to have a direct and immediate control. The processes keeping my heart functioning, for example, are not a matter of my volition, but they are both effective and operative only in my body, and for keeping me alive and utilizing resources both inside and outside my body. So consciousness, as an aspect of personhood, is also not necessary and it doesn’t need to be as is sometimes argued by prochoicers.
According to Rothbard, ownership cannot be based on verbal decree anyway, or by extension, on the will either. And we can see how this make sense as I’ve just illustrated. The objective link cannot be a matter of the will even if the will may somehow, in some ways be involved. The point is that the objective link in self-ownership is the human biological processes operating on default and independent of any other body. All of the processes are operative and effective toward the purpose of sustaining the life of the body’s owner. And while we may be left to wonder how the biological processes interact with the abstract aspects of personhood, this curiosity is not necessary in establishing the existence of a self-owner.
The other requirement is that the objective link must be recognizable to more than one conscious mind. Now, we don’t know if the zygote has a mind, and that’s okay – at this point, we don’t need to know that. What the rest of us need to see is whether there is a clearly ascertainable connection between the mother and her body, and if the zygote exhibits the same connection to its body.
By establishing the objective link in those humans we regard as being self-owners, we can see if that same objective link exists in the fetus as well. It’s important to remember, that in establishing this objective link, we are not trying to establish personhood; we are merely establishing the basic existence of a self-owner, and thus a basic property right in that self-owner.
Recall Rothbard’s claim that there are two senses in which property rights equate to human rights: rights only accrue to humans and owning one’s self entails having possession over one’s own body.
Does the objective link of self-ownership manifest in the fetus?
In part 2, I explained how science does in fact regard the fetus, and specifically the zygote – the immediate product of conception – as a new, unique, living, human. Since the zygote is a human, then the first sense of self-ownership is fulfilled: only humans can acquire property. But does the zygote have possession of its body?
If self-ownership is established in the individual human by way of the biological processes, then all we have to do is see which human, the mother or the zygote, has direct and immediate control of the zygote’s biological processes.
The precise moment that an individual sperm and egg become a zygote, (fertilized egg) is called “egg activation.” From this moment forward, mom’s body recognizes the zygote as “not-her-body.” Mom’s immune system recognizes the zygote’s DNA as ‘foreign’ and proceeds to attack. This is key! The zygote’s response is to shield itself, making it impervious to these attacks. Not only is the zygote recognized as “not-mom’s-body,” but its first biological directive is independent of mom’s body and effectively protects its own existence which would otherwise be destroyed by mom’s body.
Remember, we are not talking about conscious awareness, or verbal decree of the will, which are unnecessary in establishing self-ownership. The zygote has direct and immediate control of its own body which operates independently of mom’s biological processes, AND subsequent processes only further reinforce this distinction, and are a striking parallel to Locke’s homesteading scenario.
Side note: A living cell is not the same as a living organism. The egg and sperm are distinct from the zygote because these cells are operating on directives from the parent’s bodies respectively, and not on their own (see episode two concerning what constitutes a living organism; other cells do not biologically qualify as living organisms, the zygote does).
Rothbard’s second sense of self-ownership is then fulfilled: the zygote, not the mother, has possession of its own body by way of an objective link. That objective link being the biological process that protect the life of the zygote from attacks by my mom’s immune system, which recognizes the zygote as foreign to the mother. This objective link is further reinforced in subsequent processes as we’ll explore in a moment. The conclusion we can draw from this, is that the zygote is indeed a self-owner in the same way the mother is a self-owner, even if in a biologically primordial way. And remember, absolute self-ownership according to Rothbard is a primordial fact.
Doesn’t the fetus only have potentiality?
This idea of potentiality comes from feminist philosopher Mary Anne Warren, in which she argued in favor of abortion on the basis that the biological category of ‘human’ was only identifying our species’ pedigree. The basis for human rights, according to Warren, is on our value, and potential persons have no value, or at best relative value to others. Warren’s pro-choice argument is dangerous because it supports the notion that some born human don’t have enough value to have their rights recognized. Rothbard also argues in favor of abortion from potentiality.
Rothbard says that a child is only a potential adult, with adulthood being the demarcation for full self-ownership. And certainly there is a discussion to be had about when a child reaches adulthood in the fullest sense. However, Rothbard knows he can’t claim children have no rights whatsoever, and he doesn’t. He argues that it’s a child’s potential adulthood that’s sufficient for having the rights associated with the status of self-ownership.
Now, the question that Rothbard seems to dance around however, is when the rights of self-ownership begin. On the one hand he says born children are not self-owners in any sense, and on the other he says born children have the rights of self-ownership because of their potential adulthood. This seems ambiguous, in spite of his overall assertion that property rights disambiguate human rights.
The idea of potential adulthood is ultimately moot as a zygote is also a potential adult, rendering this aspect of Rothbard’s argument favoring abortion invalid.
If killing of a born “potential adult” is legally impermissible, then why not killing of an unborn “potential adult?” If potentiality is dependent upon development, then we don’t realize our potential for adulthood until 25 years of age when the final parts of the brain, the frontal lobe, which perhaps is the most necessary when it comes to the Austrian ideas of human action, is fully developed.
The concept of potentiality is a complete affront to Rothbard’s own contention that human rights are based in the objective absolute right of self-ownership. Why does Rothbard uphold a human rights argument contrary to his own when speaking on abortion?
I think Rothbard intuitively understood this, which is why he argues that the fetus is an aggressor against the mother, rather than merely lacking self-ownership.
Rothbard’s Parasitic Invasion Argument
Rothbard claims abortion cannot be murder because it’s the presence of the fetus that is violating the mother’s absolute right of self-ownership, and so the fetus can be considered a “parasitic invader.” He conjectures, since no humans have a right to coercively live off other humans, then the fetus cannot have that right either.
Is the fetus a parasite?
Rothbard wrote that “no being has a right to live, unbidden, as a parasite within or upon some person’s body” and that therefore the woman is entitled to eject the fetus from her body at any time. But by definition, a fetus cannot be a parasite.
From a scientific perspective, parasitism is a symbiotic relationship in which one animal, the host, is necessarily injured through the activities of another animal, the parasite. Parasites of medical significance belong to four phyla: protozoa, Platyhelminthes, aschelminthes, and Arthropoda.
A fetus doesn’t fall into these phyla and isn’t even a distinct animal from the mother; it’s a distinct human, it’s the same species, different body. It doesn’t injure the mother, especially in typical cases and atypical cases can’t determine the rule. The only time ‘parasite’ is used to refer to a human in a medically significant way is in the case of a malformed, conjoined twin. But the parasitic relationship is to the healthy twin, not to the mother.
The pejorative use of the word ‘parasite,’ which is how Rothbard appears to be using it, employs an ethical disapproval not a legal one, and is therefore outside the scope of the legal sense of libertarianism. In other words, you may pejoratively declare your disapproval of the fetus’ existence, but this is not a proper legal basis, especially in libertarianism, from which to deny the rights of the fetus as a self-owner.
Is the fetus an invader?
Just like with your home, anyone invading is aggressing against you, and using lethal force to end such aggression may be a warranted use of self-defense. Rothbard argues this applies to the fetus; it too, he claims, is invading the mother’s body.
The problem is this: to invade anything, or anywhere, your origin would need to have come from outside the place you’re invading. But the zygote doesn’t originate from outside of the mother. It originates inside the mother; it emerges.
The zygote’s existence emerges as a direct consequence of conception. The zygote cannot be an invader because its origin comes from within the very place Rothbard alleges it’s invading. It comes into existence from within the womb, not from without.
I don’t want to reduce Rothbard’s argument to pure definition, however. His argument essentially concedes the possibility that the fetus has a negative right to not be interfered with, but that doesn’t necessarily translate to a positive right of the fetus against the mother for life support. A famous thought experiment, called “The Violinist,” from Judith Jarvis Thomson shows why humans don’t owe each other an ambiguous “right to life.” Thomson’s argument is valid as far as it goes, but exploring it further will reveal its insufficiently analogous to abortion and therefore doesn’t apply to the fetus.
It goes like this: suppose one morning you wake up to find yourself connected by medical tubes to an unconscious violinist. If you disconnect now, the violinist will die. If you wait 9 months to disconnect, the violinist will live. Thompson argues that since you weren’t connected by choice, that you aren’t obligated to remain connected, and therefore have a right to disconnect yourself. As applied to abortion, Thomson is essentially saying what Rothbard is saying, that while you may owe it to the fetus to not kill it in its present state, you are also not obligated to be the life-support system and may disconnect yourself, even though disconnecting would lead to the fetus’ ultimate demise.
All self-ownership does at this point, is require that the mother not interfere with the fetus’s development. Obviously, abortion does this. So it’s possible to end the discussion here. But I don’t think this is strong enough. Rothbard, Thomson, and Warren essentially make the case, that if our offspring can claim a negative right of non-interference, then it’s our offspring who is responsible for their own life support. So prolife libertarians would be foolish to leave the discussion here. We cannot simply talk about negative rights because part of the libertarian conversation on abortion is what, if anything, parents legally owe their offspring. In other words, part of this conversation is a question concerning positive rights. Previously, this has been left a moral question, and Rothbard goes as far as to say that, though parents may be morally obligated to feed, clothe, and shelter their children, they aren’t (and shouldn’t be) legally obligated to. Again, if Rothbard’s assertion on rights is correct, and libertarianism articulates the entire structure of human rights in terms of property rights, then we should be able to answer this question more thoroughly.
In the second half, I’ll explore the question of positive rights and of whether the mother is legally obligated, according to libertarian philosophy, to provide life-support to her offspring.
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But without the state, won’t we fall into lawless chaos? In this episode, I discuss the concept of polycentric legal order with legal scholar, Gary Chartier
• Podcast Subscribe • and give a five-star rating and review so new audiences can find Mere Liberty. This episode is the second half of my previous episode, and is intended to be heard with the last one in mind. Previously, I...
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