The Limits of Libertarian Law and Logic: Abortion

A pro-choice protest, taken place in Texas. From Sergio Flores and Evan L’roy of the Texas Tribune.

As of late, the Supreme Court has followed through with overturning Roe v. Wade, leaving the issue of abortion up to state governments. Since that ruling, there has been over 11 states that now prohibit or plan to prohibit abortion. Many pro-choice protests have been held after the ruling, saying that it will lead to infringements on the right to medical privacy and medical choice, while the ruling has been seen by pro-life groups as a legal and moral victory in defense of the lives of the unborn.

Libertarians have been divided on the issue, with both pro-choice and pro-life sections following the perspectives mentioned above. While the ruling was made in regards to constitutional grounds (which may be a debatable ruling in itself, dealing with 9th, 10th, and 14th amendments), the arguments made by libertarians focus more on the moral side of the issue. Specifically, it is a debate in regards to libertarian ideas of rights and laws.

I wish to outline the pro-life libertarian arguments, starting from simple principles and then going through the logic of it. Counter-arguments shall be presented, in which, while the moral standpoint may be superior, that it is simply impossible to continue from the legal standpoint, to enforce complete consistency with principles. In effect, it may be considered a contention with the natural-rights view of libertarian law theory, a view held prominently in libertarian circles.

The Principles, Logic and Arguments, and Counters

The logical argument for the legal prohibition for abortion, from the standpoint of pro-life libertarianism, can be stated as thus:

Premise 1) The function of the law, at its core, is/should be to protect individual rights, namely that of life, liberty, and property.

P2) Life begins at conception.

P3) Abortion is the termination of the fetus after conception has occurred and prior to exiting the womb.

Conclusion 1/P4) Because life begins at conception, and abortion is the termination of the fetus after conception, abortion is the termination, or ending, of life.

C2/P5) Because the function of the law is to protect the individual right to life, and abortion is the ending of life, the law must prohibit abortion to protect life.

C3) Therefore, abortion should be prohibited and banned.

This can be said to be the basic argument. There may be some small incongruences, such as possibly needing to specify it as innocent life and that the law specifically protects innocent life, or some specifics in regards to initiation of force and self-defense, etc., etc. I ask the reader, for the time being, to bracket off these small objections to my formulation, as they can be said to be already encompassed into the premises laid out, such as that they are trivial to the main point.

The March for Life rally, a pro-life protest taken place every year since Roe v. Wade. From Susan Walsh of the Associated Press (AP).

Now, if we are to take the natural-rights law approach, as mentioned earlier, we must see to it that such an argument must be absolute. If there are exceptions to the law, then there must be flaws in the logic; and if that is the case, we cannot justify the law using that logic, and must then either be reformulated, or the prospect of such a law thrown out.

The first counter comes in regards to life; specifically, the life of the mother. In certain medical situations, such as ectopic pregnancies, the life of the mother is at risk. Certain medical treatments akin to abortion are used to save and preserve the life of the mother; however, it must terminate the pregnancy in some circumstances. Should such a treatment be banned?

The standard position for moderate pro-life is that it would not be banned. Either the fetus would already be dead beforehand, or the pregnancy would not be viable anyway, and sooner or later it would self-terminate, with the fetus dying in the womb. In order to preserve life, specifically that of the mother, it would be best to undergo such medical procedures, instead of letting the pregnancy continue growing tissue, risking the mother’s life.

But here we find an issue: if life starts at conception, it would mean that, in some cases, the medical procedures would result in the ending of life, even if that life would not be viable outside of the womb. There may be cases in which doctors may only care for the mother as they are going through the miscarriage; still, in such a case the life of the fetus is not preserved, and the miscarriage is allowed to occur, albeit in a sanitary environment. Either way, life is being ended, either intentionally via medical procedures or medication, or passively through the allowance of the miscarriage to occur.

How can that co-align with the argument laid out earlier? If we follow it with consistency, then we must outlaw treatment for ectopic pregnancies (a proposal that has been made by more than just a few lawmakers at the state and federal level). We cannot simply make an exception, even as to only ban certain ectopic pregnancy treatments while allowing others, because it leaves the door open for other concessions, thus making the law non-absolute and possibly even arbitrary, antithetical to natural rights law theory. Either the logic must be changed and corrected, or we must throw out the idea of natural law prohibiting abortion.

Perhaps we need to add a few more premises:

  1. If a fetus is not viable, then the fetus cannot be said to be alive; rather, while it had life (since it was conceived), it can be said to be dead on arrival.
  2. Thus the termination of the fetus after conception is not abortion if and only if the fetus would not be viable. That way, ectopic pregnancy treatment can still be allowed, even if the fetus is still alive, as it would not be able to survive anyway.
  3. Since the aim of the law is the preservation of life, and the termination stated earlier preserves life (the mother’s), then the law cannot ban the procedure, lest it contradicts itself.

Thus, this type of termination of the fetus must be allowed under the law. This accounts both for the medical procedures of ectopic pregnancies dealing with already deceased fetuses, and medical procedures dealing with not yet deceased fetuses.

However, there is another issue: since the fetus must be viable in order to be said to be alive, we must put another premise in: that, because a termination of an unviable fetus does not end life, the law cannot ban such termination on the grounds of preserving life. Abortions before viability (usually 24 weeks after conception) must then be allowed under the law (as was ruled in Roe v. Wade); but that would be seen as wrong from the pro-life position, as the fetus is seen as alive, even though it is not viable. Again, we cannot simply make an exception for ectopic pregnancies and other medical problems, as it would contradict the absoluteness of a natural rights law theory. Another premise must be added.

We could say that the fetus is said to not be alive if the fetus is not viable and it does not have the potential to be viable. In such a way, again, ectopic pregnancies are accounted for, and normal pregnancies are given the status of living beings. We again find issues, though: certain pregnancies, due to abnormalities in the fetus, may likely have great risks to the health of the fetus or the mother. While the fetus may have the potential to be viable, there may still be risks to the health and life of the mother or fetus, to the point where either may not survive after birth due to such complications.

Issues also occur in regards to such procedures as IVF, in which eggs are fertilized in a laboratory, with some to be later implanted into the person seeking the procedure to get pregnant, and the rest to be discarded, either due to not needing them anymore for the procedure or due to issues with the embryos’ genetics leading to health risks. If we are to take the argument to its logical conclusions, such organizations would have to be criminal; yet it would be preposterous to claim that the pro-life position would be against a fertility clinic of all things!

With such realizations, and such needs to refinements to the logic, we reach not only the problem with prohibiting abortion from the idea of natural rights law, but of the impossibility, or at least improbability and impracticality, of natural rights law theory in general. Natural rights must be absolute, and the logic behind the law must make that clear; but with every new experience or situation that leads to contradiction, the logic of the law must be changed, else the law can no longer accept a right as natural or absolute. Because there are hundreds upon thousands of different situations, it is nay impossible to make an in-depth, written out list of the laws, in all aspects needed for the law, that all laws can be held absolute and logically consistent. At best, one can have general principles, ideas, or the most basic rights and rules; but such makes for a poor excuse of law theory.

The logo for the Libertarian Party Pro-Life Caucus.

This feeds in to another problem as well: if there is more than one natural right, how shall we judge which rights are above others? For example, in the common classical liberal approach, the three main rights are life, liberty, and property. How are we to decide which of the three are to take precedence over the others?

Let us ponder for a moment on the argument made by Murray Rothbard, a libertarian philosopher who was pro-choice. He focuses on the premise of property: specifically, in regards to self-ownership, of ownership of one’s own body. Because of such ownership, a person is allowed to take anything and welcome anyone else into or out of their body, similar to someone moving objects into our out of one’s house or land, or welcoming another into their house. And just as someone can kick someone out of their home or property, so can the woman eject the fetus from her body, as it is her property, where even “if the fetus dies, this does not rebut the point that no being has a right to live, unbidden, as a parasite within or upon some person’s body.”

From the standpoint of property, this is in logical standing: if someone were to kick someone out of their home, even if they were a guest, even though conditions outside of the home may be perilous or dangerous, and even have with it a fair chance of death, it would still be within the right of property for the owner to be allowed to kick out that person. It may be cruel, immoral even; but from the basis of natural rights law, and specifically one with property as a natural right, we could not make a law against such a practice, without sacrificing logical consistency and absoluteness, which is required for natural rights law.

However, such comes into conflict with the right to life: for if we were to follow it absolutely, abortion would have to be made illegal, based on the arguments already made earlier. Two absolutes are in contradiction with each other; yet libertarian natural rights law requires the protection of both.

Two choices can be made: either one right is to take precedence over the other, or we must find a compromise in the logic. Either way, there are problems: if we choose life over property, we run the risk of making the violation of property legal, under the condition that it might save a life. Reparations for stealing, breaking and entering, fraud, violations of bodily autonomy, etc., could be excused and done away with if the accused claims that he needed to do so in order to survive, or to help save or preserve a life. Laws could be made to mandate certain medical procedures against a person’s wishes, if it is deemed to help preserve life. While this might tickle our moral fancy, it does not lay a solid basis for law, as well as opens a can of worms by violating other rights.

If we choose property over life, we run the risk of allowing overly drastic measures to protect property, even if it ends life. The absurd situations of shooting someone for taking a single step on your property, even if they don’t intend to trespass, or having someone holding on for dear life on your flagpole, six stories above the ground, and telling them to let go because they’re violating your property rights, would be protected under the law. No sane person would support such laws; in fact, such are examples of jokes made about the absurdities people make to discredit libertarianism in toto. But it is a real issue: in dealing with absolutes, in regards to rights, and choosing any right over the other, we get unreasonable and unwanted results from reasonable principles. Thus, we cannot simply just put one right over the other. A compromise must be made, to accommodate all rights.

How can we make such a compromise? It all depends on the logic in of what counts as a living being, and what counts as property. No one would disagree that someone’s body is their own, and can be said to be their own property. The debate is then on what constitutes life: in Roe v. Wade, the Supreme Court used viability as a measure for life, whether the fetus can survive outside of the womb. But, as already mentioned earlier, we cannot use that logic here. In fact, it would be extremely difficult and complex to form a new compromise based on the logic provided; and we’ve already shown that we cannot simply value one right over the other.

Perhaps one could use an argument for common sense in such procedures, but then we cannot base our law off of an absolute logic. Common sense can only work in certain situations, and tends to not be absolute or universal, as natural rights law must be. If we do not have a firm, absolute basis, we cannot create such a theory for natural rights-based law.

If anything, what is shown is not only the extreme difficulties for forming a natural rights based theory of law that would ban abortion, while leaving other procedures unharmed; but also that it is extremely difficult to form a natural rights based law of theory in general. Again, as stated earlier, we can at best determine fundamental principles, basic ideas; but in the formation of an in-depth, sound theory, we are left extremely wanting.

The Reality of The Situation

The repeal of Roe v. Wade, while focused on abortion, leaves a good other things at stake. The repeal may bring into question what limits government may have in regards to other matters of medical privacy, as the case had set a precedent regarding the unenumerated rights of such; Justice Clarence Thomas has claimed that the repeal brings into question other rulings, which covers the issues of same-sex relationships and contraception use under the right to privacy. States have already been implementing full bans on abortions with few exceptions, and some law makers are even questioning those exceptions as well.

The state governments have been given more overreach now on personal bodily autonomy and privacy; instead of a decrease in government intervention in the person’s daily life, it has increased the ability for government to intervene, albeit on the state level instead of the federal. It can be said to be an act of decentralization; in this case, of a decentralized form of tyranny.

Even with the bans, there are already challenges to it: protests being held against the repeal; recipes for DIY abortion medication being spread online, even by legislators such as Alexandria Ocasio-Cortez; details on opsec for getting an abortion, as well as volunteering for housing civilians going out-of-state to get an abortion; etc., etc., etc. The bans, like with all forms of prohibition before it, are in some ways backfiring already, and the problem has not been solved at all.

With everything happening, what has been shown is not only a failure in helping to treat the actual problem of abortion, but a failure of the law system in general, as a supposed beacon to protect rights. Any case that protects the rights of people can be thrown out by a judge on the simple basis that the logic of the ruling was incorrect in some way; the baby is then thrown out with the bathwater. Even a libertarian theory of law, based on the universality and absoluteness of natural rights, is not immune; in fact, it is the most easily susceptible, as American law is in part based on the idea of natural rights at its core.The futility and failure, then, lies in the entirety of the law itself.

But what can be done, then? Firstly, an abandonment of the idea of absolute and universal law made by man: only the laws of God, which act similar to natural rights as being basic principles, and the tendencies seen in the sciences can have any inkling of absoluteness or universality. With such abandonment is also, secondly, an abandonment with limiting oneself to legality: it is in morality and ethics, both of which are perceived in some ways subjectively, that can be acted upon, while the laws of man leave one to suffocate.

Thirdly, lastly, and most importantly, the creation and practice of mutual aid over the practice of law. It is in the empathy and the help provided by mutual aid that such issues as abortion can be solved far much easier, and much more in alignment with libertarian principles. It is how abortion advocated helped women get abortion via underground; and it is such methods that can help to prevent as many abortions as well. With the rise of new technologies, too, it should become much more easier and successful to stop more abortions through mutual aid and community help.

A symbol, representing mutual aid.

If anything, it shows that we must follow a main point in libertarian philosophy: we cannot rely on the government to solve any of our problems, especially those of the most importance to us. It is not by political means, but by social, cooperative means, outside of the state apparatus, that we can efficiently help each other; and that we must not only change the laws, but the culture, environment, economic conditions, etc., that are the true, underlying causes for the issue in the first place. I’ve already stated in a previous article a few examples of organizations that do such help; I need not show more. All I ask now is that one shall act in such a way to truly help spread liberty and its principles, through truly libertarian means.

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