All right then, a few words on Abortion

Though my own convictions about abortion have been the driving force in my ideological development, I've avoided writing a word about it. My pro-life stance might be too visceral for me to write anything fair. But now is a good time to start practicing. The Saturday before last, Wendy McElroy posted a list of supposedly problematic implications of the pro-life position. These implications might already have been addressed by pro-lifers, but I thought I should throw in my 2 cents, since I have a somewhat unique moral groundwork, and what someone else says in favor of the pro-life position might not represent my own convictions. (Before going into this I should say that everything McElroy has written about particular American anarchists or about the anarchist movement in general makes an enchanted read and is warmly recommended by me.) Now, on the A-question.

Implication #1: If the fetus is accorded individual rights, then the aborting woman and anyone who assists her are murderers and must be subject to whatever penalty society metes out for that crime, up to and including capital punishment. The punishment should be applied to past abortions as there is no statute of limitations on murder. If anti-abortionists shy away from this conclusion, then they do not really consider abortion to be murder.

Someone could call something murder without demanding or excusing the death penalty for it. I do. If I were a retributivist, or a "let's make an example of her"-ist, I would say that the offending woman alienated her right to live by killing her child. But I am neither of those. Retribution is arbitrary violence, and the very idea of non-defensive punishment is questionable. Now, it would be just for a defense agency to force a murderer to make some kind of ammends. But that can't involve execution. If we wish to justify retaliation on the grounds of proportional defense, then killing a killer is just only when the killer is in the act, or very obviously about to commit it (and when the act would obviously be lethal). If the murderer isn't in the act of killing anyone, and if she isn't obviously about to kill anyone, then lethal force against her is unnecessary to save anyone's life, and is disproportionate (aka, unjust). So no, according individual rights to the fetus does not imply condemning aborters to death.

Implication #2: if a woman cannot 'kill' her fetus because it is a separate human being, then she also cannot injure it. If she does, she should be prosecuted in the same manner as if she assaulted an innocent bystander. If she ingests harmful substances, then the law should view the act as though she had strapped down a child and force-fed a toxin to it. Thus, the pregnant woman is vulnerable to criminal prosecution based on her diet, her lifestyle choices, etc.

Yes, and I agree. A pregnant woman is liable for anything she maliciously or negligently does that injures the fetus, just as a woman who recently gave birth should be liable for anything she maliciously or negligently does that injures the newborn. I don't see anything radical about this. I should say, though, that pregnant mothers shouldn't be prosecuted for smoking weed. Weed only makes babies lazy and stupid, and God forbid that any parent be prosecuted for raising their child in an unaccredited Baptist school.

Implication #3: if a woman wishes to abort, or to take actions that will harm the fetus -- eg. smoking crack -- then she should be imprisoned or otherwise forcibly restrained from inflicting death and/or injury on the innocent "child". Constant monitoring would be required -- presumably by the state; the woman would be a slave to her fetus. Anti-abortionists must explain how -- short of totalitarianism -- they intend to protect fetuses in peril.

Every good libertarian rejects the idea of "victimless crimes" and opposes all "protective" and "defensive" measures that violate individual sovereignty. A woman should not be punished for a crime that she hasn't yet committed, and any preemptive action against her on behalf of the fetus can only be just if her intent to abort is blatant and explicit. It would be very difficult to get a blatant and explicit sign of her intent to abort -- if she tells anyone, she would only tell her closest friends, and if one of her friends rats on her, she could brush it off as being part of her bad pregnant temper (and everyone else she told might dutifully agree). In a free society, the official policy would be to give all evidence the interpretation that is most charitable to the suspect or the potential offender. And so, "she looked unfortunate enough to want an abortion" just isn't going to cut it. McElroy's target here might not be pro-life libertarianism, but pro-life neo-conservatism. A pro-life libertarian, if he or she truly is libertarian, would oppose all actions that violate individual sovereignty, including wire-tapping, thumbing through other peoples' medical records, and false imprisonment.

Implication #3 can almost as easily be used to say adult humans shouldn't be given rights. McElroy supposes here that since the right would only be enforced in our present system through the unjust use of force, then the right shouldn't be accorded. Taking the implication further, someone can argue that we shouldn't accord human adults the right to live, since doing that would justify imprisoning anyone who intended to kill an innocent adult, and that would involve the intrusive machinery of the present police state, as well as traditional violations of individual sovereignty like compulsory jury duty (which is slavery), mandatory testimony (which also is slavery), and criminal action on behalf of "The People" (which is fraud). Should we go on to say that human adults can't have the right to live, since that "supposed" right is only enforced through acts that violate individual sovereignty?

McElroy's implications presuppose a system of criminal justice like the one we are presently subjected to. But in a free society there would be ways to protect the innocent without resorting to criminal "justice". Rather than spend so much time, effort, and money on finding out and hunting down killers, putting on an exquisite show that we call a "trial", then sustaining the convict for years on end behind bars, and doing all sorts of other things meant to get back at a criminal, we would find it much more costworthy to merely minimize the incentives to initiate force. The incentive to kill a pre-born baby is obvious. But would that incentive still be there, or be as powerful, if instead of being condemned to a life of motherhood a woman were offered free pre- and post-natal care and more than enough money to stay in school in return for the custody of her child? A free market in the stewardship of children might do wonders to reduce the number of abortions.

Implication #4: anti-abortionists are effectively defining pro-choice libertarians out of the movement. If anti-abortionists are correct, then pro-choice libertarians are morally sanctioning and/or legally encouraging the deliberate mass murder of defenseless children. If there is any line that cannot be crossed without losing all claim to the word "libertarian", then surely the advocacy of mass murder is that line.

Well, I would have used more clinical words to say it, but yes and no. The word "libertarian" has already been defiled by people on the left who advocate government mandated healthcare and compulsory "education" and by people on the right who advocate preemptive wars and mass deportations. I like to use the word to describe all those who hold the sovereignty of every individual as a universal moral principle to which all laws should adhere. If they rigorously examine all policies and uses of violence that cross their mind, and condemn all those that they consider violations of someone's sovereignty, then they're libertarian in my book. That can include minarchists and even communists, so long as they believe in the right to secede. It definitely includes pro-choice thinkers like Murray Rothbard and Wendy McElroy. These two have contributed so much to the way I think about freedom and morality, that it would be ideological identity theft for me to take from them a word they and their followers have used for the past half century to describe the way they think about force. True, I think they can be more consistent, but if I were to reserve the word "libertarian" for only those who are consistent in the way I want them to be, then I would be the only libertarian I know. The vast majority of libertarians eat meat, and I consider that an initiation of force against non-aggressors. It would be much better for me to use an entirely different word to describe my purified individualism -- how about "Puritarianism"?

Implication #5: anti-abortionists are destroying the concept of natural rights itself which claims that every human being properly has jurisdiction over his or her own body. It is only because each human being is a self-owner that it is improper to initiate force against another. But if the fetus has the right to live off the pregnant woman's body functions -- to share the food she eats, the blood her heart pumps -- then this is tantamount to saying that one human being can properly own the body functions of another. It is tantamount to saying that one human being can properly enslave another.

If we wish to talk about individual rights, then we have to think of these rights as not depending on one's race, color, creed, social or economic status, mental or physical capacities, state of development, or on the sentiments or convenience of others. And if we want to think of rights that way, then we have to consider them inhered at the moment of conception. According rights at any moment later than conception is to let violent ageism, ableism and other kinds of anti-individualism creep in through the back door.

I concede, though, that all our inherent rights are negative, not positive. You have a right to live; but you don't have the right to force other people to house, feed, and protect you. By being present in a woman's body without her permission, an unwanted fetus is a trespasser in another's body, making it an enslaver, a leech, and a rapist. But enslavers, leeches, and rapists don't necessarily forfeit their right to live by enslaving, leeching, and raping. Their right to live is suspended when they are in the act of enslaving, leeching, or raping with the use of or a blatant and explicit threat of lethal force. If the invasion of individual sovereignty is not accompanied by lethal force or by a blatant and express threat of it, then there is no right to use lethal force to address it.

Let's consider the shopkeeper and the shoplifter. Most of us would say that a shopkeeper can rightfully use some force to stop a kid who is infringing on the shopkeeper's individual sovereignty by stealing candy from the store. But most of us would gawk if the shopkeeper pulled out his gun and shot the kid dead in the doorway. There's an issue of proportionality. The kid was only stealing -- he didn't have a knife or a gun, and he wasn't posing any threat to the shopkeeper's or any one else's life. If the kid did have a gun, then the story changes. If he aims it at the shopkeeper's head and threatens to shoot him if he doesn't hand over all the money in the cash drawer, then lethal force here is legitimate. The necessary criterion for using lethal force has been met -- the kid threatened the shopkeeper's life. Killing the kid would therefore be legitimate. But without this criterion being met -- without the criminal using or blatantly and expressly threatening to use lethal force, retaliating with lethal force is disproportionate and thus unjust.

It's a similar case with abortion. Even though an unwanted fetus is an enslaver, a leech, and a rapist, killing it is a disproportionate form of defense and thus unjust, unless carrying it to term would most likely kill the mother. This doesn't mean we have a right to enslave women. It just means that women shouldn't use lethal force against children who don't threaten or use it.

Implication #6: anti-abortionists are destroying the idea of a "natural harmony of rights" between human beings. If rights are based on being human, then everyone has the same ones to the same degree. The self-ownership of one person in no way violates the self-ownership of another; my freedom of religion in no way violates yours. Consider if human nature were different, however. If I had a biological need to eat human flesh in order to live, then the structure of universal rights would make no sense. One man's life would require another man's death. This would be Hobbes' "war of all against all" and to demand the non-initiation of force would be to condemn mankind to extinction. Similarly the anti-abortionists posit a fetus whose right to self-ownership is in direct opposition to the self-ownership of the pregnant woman. They posit a biological disharmony of interests. Although such disharmonies can occur in nature -- e.g., Siamese twins -- these occurences are extremely rare and are not commonplace, like pregnancy. If they were not rare, then the idea of natural rights or "harmony of interest" would have no application to human nature.

First I must say very quickly that rights are not based on being human; they are based on having the present or potential capacity to enjoy life. To arbitrarily pick one particular species as the only body of rights-possessing beings, to the exclusion of all other species, does not capture the norms we wish to express when we say "individual sovereignty" or "self-ownership".

Now, to address the biological disharmony of interests. We already understand that there is a social disharmony of interests. The interests of parasites conflict with the interests of producers. The members of one class live off the labor of the others, without their consent. Members of the exploited class have the right to use some force to extract repayment from the parasites (but good luck figuring out who's a parasite and who's not), or at least to stop the parasitism. But, as I said a few paragraphs ago, they only have the right to kill those parasites who are killing or are blatantly and expressly threatening to kill someone. We don't describe this as a conflict of rights or a conflict of self-ownership; we only describe it as a violation of rights which justifies a particular degree of violence.

Maybe I'm oversimplifying things, but I don't see how the biological disharmony of interests should be treated any differently. The unwanted fetus is violating a particular degree of the mother's sovereignty over herself. She may justly retaliate. She may "evict" the "trespasser", if she could remove the fetus without killing it. But unless her life is blatantly threatened by the pregnancy, she has no right to use lethal force against the child. An unwanted pregnancy isn't a conflict of rights or a conflict of self-ownership; it's just another one of those cases where someone's sovereignty is violated, and where the severity of their retaliation cannot justly exceed the severity of the violation.

Implication #7: anti-abortionists are claiming, "The fetus is an individual with rights" and, so, the onus of proof logically rests on the one who asserts a claim rather than upon those who see no evidence for the assertion.

Talking about moral proof is a funny thing to do, because no one can prove that anyone has rights, just as no one can prove that God exists. We can, however, make assertions about what traits render an adult human being rights-possessive, and can show that those traits are shared by children, pre-born children, and non-human animals. As I said a few paragraphs up, this trait is the present or potential capacity to enjoy life. To demand anything more sophisticated than that is to be violently snobbish. It's to say "you're not smart enough, strong enough, old enough, sociable enough, or well-enough connected to be left to enjoy your life." And that drips with Manifest Destiny.

Implication #8: if a pregnancy threatens a woman's life, anti-abortionists must legally require the woman to remain pregnant even if it means her death. Otherwise they do not take their own argument seriously. If the fetus is a separate individual with full rights, then the ill woman has no more right to kill it to save her life than a woman who needs a liver has the right to kill another person to secure a 'donor' organ. You cannot kill an innocent bystander just because your health requires it.

I can be fully "pro-life" and still insist that a woman has the right to abort when the pregnancy blatantly and imminently threatens her life. In the case of an ectopic pregnancy, the fetus affects the mother's situation in such a way that she would most likely die if she does not remove the fetus. Since a threat of lethal violence is made, a lethal retaliation is legitimate. (Now, if the mother is able to have the fetus removed without killing it, then she would have the obligation to remove it that way, if she chooses to remove it at all. This raises a lot of points that need to be addressed, but if I go into them here I'd be writing a book rather than "a few words".) The fetus is in the same position as an armed robber pointing a gun, and so can be treated in the same way. The difference between the fetus and the innocent bystander is that here the fetus is in a position to kill, while the innocent bystander isn't.

Now, some pro-lifers say that because the child never consciously chose to kill the mother, it is innocent even when the mother's life is threatened by the pregnancy. But conscious choice isn't what matters. Imagine a Manchurian Candidate with his gun pointed at an official and his finger on the trigger. Who would say that the absence of the assassin's conscious choice precludes the guards' right to shoot him? The conditions affecting the victims are the same as if the assassin aims his gun out of his own free will. Now what about a drunk? Should people be legally forbidden from killing him if he aims his gun at them when he's stupefied? Of course not. The fact that he wasn't in his right mind when he threatened someone else's life doesn't mean the victim has no right to lethal defense. When it comes to imminent threats, it's immaterial whether the offender consciously chose to kill, or just happened to be in a position of killing.

More than a few times I've heard a remark like this: "But all pregnancies pose some threat to a woman, so how could you say that only some women in some situations have a right to choose? If you allow a woman the discretion to choose an abortion when her life is threatened, then you're allowing her the discretion to decide when the threat against her life is serious enough to merit a lethal reaction, and you're basically conceding women's absolute right to choose." True, there is a good bit of subjectivity that should be admitted. But allowing a woman to choose in the case that her life is threatened isn't the same as leaving the term "life-threatening" completely up to the woman to define. There are cases where an offender can objectively be shown to pose no immanent threat to the victim's life. The kid running out the door with stolen candy is one such case. I'm no obstetrician, but I'm sure there can be innumerable cases where the tolls on a woman's body are nowhere near serious enough to constitute a threat against her life.

Implication #9: pregnancies that result from rape must also be brought to term. Anti-abortionists who make exceptions for e.g. a 12-year-old who becomes pregnant after being raped are saying that it is alright to kill an innocent baby under the 'proper' circumstances... which denies their entire argument, of course.

Yes, and I fully agree. Individual rights don't depend on age, ability, the convenience of others, or on how auspiciously one was conceived. Again, I don't know what's so radical about this.