A Libertarian Argument for the Pro-Choice Position
It doesn’t even depend on your moral views on abortion itself.
Welcome to the Lib Lib Report, i.e. the Liberal Libertarian Report, where we talk about news and current affairs from a liberal libertarian point of view. We aim for a practical pro-liberty politics encouraging things like free speech and free thought in the here and now, while looking for more libertarian solutions moving towards the future.
The leak of a US Supreme Court draft opinion suggesting the overturn of Roe v. Wade earlier this month has reignited the long standing debate between pro-choice libertarians and pro-life libertarians. At the heart of the matter is whether the proper libertarian position regarding abortion should be pro-choice or pro-life. I want to talk about my thoughts on this matter, and how this might inform the liberal libertarian orientation in politics in the here and now. Before we start, I have to make it clear that what I’m going to talk about does not directly concern the legal merits of Roe itself, or the leaked opinion. It is about pro-life vs pro-choice positions in libertarianism, and the arguments are equally applicable in other situations. I must also say that I don’t pretend to speak for other libertarians, and these are just my own thoughts. As they say, if there are ten libertarians in the room, there is likely going to be ten different positions taken on an issue. And this diversity is certainly something I welcome.
Let’s start with this story about a friend of mine. She is a religious person, and she certainly believes that abortion is morally equivalent to taking an innocent life. But then, she has never been a fan of getting the government involved in this issue. Given that the most vocal pro-life activists often like to equate abortion with murder, and hence equate legal abortion with the absurd position of legalizing murder, my friend has never been one to voice her opinions in public, because she was worried that they might ask her something like ‘so you think murder should be legal?’ My friend used to think that her views were deeply unpopular until this month, when the heated debate over Roe v. Wade revealed that there were indeed plenty of people who shared her views. Apparently, even among those who believe abortion is morally equivalent to taking an innocent life, they don’t necessarily have to equate it with murder, at least legally speaking.
To understand this, I think we should step back and take a look at the larger picture. The argument of the staunchest pro-life activists basically goes like this: given abortion is morally equivalent to murder in their view, how can it be acceptable that murder is generally punishable by the maximum penalty available, while abortion is legally allowed? However, the assumption of that argument is that the government’s role in society is that of moral enforcer, and it should always punish behavior that is immoral. This view is basically rooted in the social contract of the pre-Enlightenment West, where everyone lived by and agreed to moral values that were determined by the authorities, which was generally the church, based on religious tradition and scripture. The problem with this model was that everyone had to agree to be bound by the the laws of Christianity in the first place, and also the authority of the church in interpreting the religious law. This was not that much of a problem in pre-Enlightenment times, given that the vast majority of people in Europe were Christians, and they also closely obeyed the decisions of the church hierarchy in matters of faith.
The Enlightenment challenged the absolute authority of the church, and this was where things changed. As I liked to say, liberalism is basically rooted in freedom of religion. Liberalism represented a new social contract, one that was necessary to maintain the peace, in a Western world that no longer universally accepted the supremacy of a unified religious authority. Given that morality was deeply tied to religion, the end of religious agreement would, at least to some extent, also mean the end of moral agreement on many issues. This made the old social contract where the government was society’s enforcer of morality unacceptable, and indeed oppressive, to a significant number of people in society. The horrible religious conflicts in Europe back then demonstrated this point very well. Hence, liberalism arose to give Western society a different social contract: one where the government plays no role in determining and enforcing standards of morality, but instead functions to guarantee that every citizen has an equal right to live life according to their own moral conscience, as long as other citizens’ rights to do the same is equally respected. Of course, social change is slow, and this idea, while already long firmly embedded into the legal traditions and institutions of the Western world, is still yet to be fully implemented, or to fully supplant pre-Enlightenment cultural views. Hence, even today, both the authoritarian Left and the authoritarian Right continue to demand that governments legislate for the common good, or react swiftly to moral panics of all kinds, without much regard for the requirements of the liberal social contract. This, I believe, is where a lot of the unnecessary culture war style political conflicts come from. Libertarianism is basically a movement to end this state of confusion, and move the Enlightenment’s ideals forward to their logical conclusion, by fully realizing the implementation of the liberal social contract in the Western world.
It follows that, in a fully libertarianized society, with a fully liberal social contract, the government simply can’t legislate against something because people find it morally wrong. They can only legislate to ensure the equal standing of parties to the social contract. Murder would still be illegal because it violates the rights of another party to the social contract. Abortion, however, would be different. Countries cannot practically consider fetuses to be citizens with full rights of citizenship. For practical reasons, citizenship can only begin at birth. There is a reason that our documents have our date of birth, not our date of fertilization. Even when abortion was illegal, fetuses were not considered citizens. Therefore, fetuses cannot be considered parties to the social contract. This means that abortion cannot be considered a violation of the rights of a party to the social contract, and cannot be outlawed on these grounds. It can only be considered a matter of morality, which under a libertarian social contract, the government should have no ability to legislate over. Therefore, abortion and murder are indeed very different, no matter what your moral views on abortion are. From this, it can also be concluded that the correct libertarian position on the matter of abortion is the pro-choice position. Again, this doesn’t even have to depend on your moral views on abortion itself.
Of course, here on the Lib Lib Report, we are not libertarian immediatists. While we want to move society towards the libertarian destination in the long run, we recognize that this is not where we are at right now, which is why we practice a more pragmatic liberalism in the here and now. We recognize that the current social contract of Western liberal democracy is not yet the libertarian one, and calls to legislate based on morality and the common good are not universally considered illegitimate in the West at this time. However, given that we are Liberal Libertarians, with a libertarian destination for society in mind, I think we should aim to move towards, and not away from, that destination as much as possible, in the policy positions we support. Especially given that abortion has already been legal in America and most other Western democracies for decades, to outlaw abortion now would be to take a big leap backwards, away from the libertarian destination, something that is simply not acceptable for those of us committed to taking society towards the libertarian destination. This, I think, is a very good justification for taking the pro-choice position in the politics of the here and now.
She is also the author of the Moral Libertarian Horizon books, which argue that liberalism is still the most moral and effective value system for Western democracies in the 21st century.