Libertarians and the Right-to-Life: A Minority Opinion
by Tom Goonan, July 1999
I believe the Libertarian Party platform position on abortion makes the Party an unequivocal advocate for liberty and the pursuit of happiness, but most equivocal, even hypocritical, with regard to life. Life, in the list of these three rights, is preeminent when the rights conflict. If a 1990s libertarian were asked to write the Declaration of Independence, it would have come out as "...that they are invested by their existence with certain unalienable rights, that among these are the pursuit of happiness, liberty, and life..." I believe that many outsiders see us this way -- the party that comes from east of Hedon.
The differences between pro-life and pro-choice libertarians come down to three questions: What is life? When does it begin? And, What is the role of the state in protecting it?
Libertarians will argue over just when a fetus becomes an entity with a right to life. It seems pretty clear to most that anyone that can cross over into post-partum is such an entity. But what about fetuses in gestation? I believe that all suggestions about where in the time continuum a bunch of cells, which are clearly organized to proceed on a predictable course and outcome, cross the line to become a rights-bearing entity are religious artifacts.
The belief that anyone can make this judgment accurately must be taken on faith. That puts it in the realm of a religious decision. One rationale for a woman's "liberty" to choose is based on the fact that a poll of ten women on the subject of when life begins would produce ten different answers. But, how would you ever know whether any of them were right, which ones had destroyed life and which hadn't?
I believe that life begins at conception, that is, at the moment of fertilization. I believe this because it can be scientifically demonstrated that life is a developmental process that proceeds from fertilization to birth, being almost totally predictable at any point in time. Since we are talking about "life," and not some religious notion of "humanness," there is ample scientific justification for establishing the start of life at conception. Because I believe this, I have no problem with the criticism of the partial birth abortion initiative being too vague to the point that it would outlaw all abortions. I wouldn't mind if it did, even prohibiting morning after pills.
I support a woman's right to pursue happiness however and with whomever she pleases. I support a woman's right to the liberty of choice about whether or not to prevent the consequences of happiness, that is, her right to choose conception control.
I do not support a woman's actions to avoid the consequences of her own choices when it involves the destruction of life. When life conflicts with life, that is, when there is a question of who dies, then this is an entirely different question.
Right-to-life fundamentalists seek a constitutional amendment to outlaw abortions. This is entirely unnecessary, because it clearly states in Amendment 5 of the US Constitution "...no person shall... be deprived of life, liberty or property without due process of law..." All that is needed is a statutory definition of person, which should be pretty simple if we exclude religious notions and go with the science. The role of the state then would be to adjudicate conflicts where the mother and the fetus cannot survive alive together, and to facilitate the protection of abandoned children and/or contracted child dispositions.
Presently, one of the most dangerous places for life to exist on this planet is in a western woman's womb. You have all heard the statistics. The majority of abortions, regardless of the excuses about health, rape, incest, etc., are simply gratuitous consequence-avoidance.
One principle that libertarians can adhere to is that there is a relationship between action and consequence, that is, responsibility. One of our fundamental ideas is that the bulk of our problems are caused by governmental actions that tend to separate action and consequence. This principle underlies our opposition to welfare, unemployment benefits, single-payer healthcare and a long list of other things. Yet, we are reluctant to hold women responsible for their conception choices. To me this is an inconsistency.
All actions carry risk. It is another libertarian principle that the unilateral transfer if risk to another is partial theft of the risk-receiver's life to the degree that the non-voluntary acquired risk degrades that life. This is why we oppose the IMF as a mechanism to unilaterally impose the risk of unsound investments by banks on US taxpayers.
The pursuit of happiness coupled with taking the liberty to not use conception control bears the risk of generating a new life. Destroying that life is a unilateral transfer of risk from the woman to the fetus. In a political system, risk always devolves to the weak. Libertarians should be championing a moral system that protects life unambiguously. In the absence of taking the legitimate liberty of conception control, it is not implausible to regard the fetus as an invited guest. Most of us do not kill our invited guests.
So, what about the state making anti-abortion laws? With the exception of the anarcho-libertarians, most other libertarians are limited government types. We believe that the purpose of the state is to protect our unalienable rights, one of which is life. The state makes all kinds of laws ostensibly to protect us from killers, and it distinguishes different degrees of murder based on circumstances, and we see this as a legitimate state activity. I believe that anti-abortion laws are legitimate actions of the state in regard to preserving life, and as stated above, life is worth preserving. Let the courts, through precedent, establish the body of law where there is a conflict of rights in abortion issues, but let the fetus' right to life be recognized in these proceedings.
Based on the ideas expressed above, let's look at the working of the Libertarian Party platform and see whether there is room for improvement.
Women's Rights and Abortion
"We hold that individual rights should not be denied or abridged on the basis of sex." Acceptable.
"We call for repeal of all laws discriminating against women, such as protective labor laws and marriage or divorce laws which deny full rights of men and women." Needs clarification, but is generally acceptable.
"We oppose all laws likely to impose restrictions on free choice and private property or to widen tyranny through reverse discrimination." This is too vague to be meaningful. Reason should inform anyone who thinks that there have to be restrictions at the boundaries where rights conflict. Setting these restrictions and adjudicating disputes about them are the constitutional function of government.
"Recognizing that abortion is a very sensitive issue and that libertarians can hold good-faith views on both sides, we believe the government should be kept entirely out of the question, allowing all individuals to be guided by their own consciences." This is only a tolerable cop-out, not a statement of principle. However its effect is to enshrine a privilege to commit murder for a class of individuals, namely, pregnant women. Libertarians should not be into creating class structures or in opposition to those individuals (unborn) who can't vote or shoot back. Furthermore, this is precisely an area for government involvement for the reasons stated above.
"We oppose all restrictions on the sale of RU 486, and on the sale of menstruation-inducing contragestive pills, which block fertilized eggs from attaching themselves to the womb." Any post conception killing tool should be banned pending due process of law.
"We oppose legislation restricting or subsidizing women's access to abortion or other reproductive health services" Restriction, pending due process for the fetus, is necessary.
"[We oppose legislation ...] requiring consent of the prospective father, waiting periods, and mandatory indoctrination on fetal development..." Rational legislation that removes the pregnant woman's privilege to kill would place her in an equal position with the father with respect to the fetus and its rights. Ergo, a father's opinion would have equal weight in the adjudication process. The working of due process would be a legitimate waiting period. There may be a necessity to establish special courts, like traffic courts, to handle these matters expeditiously, since time is of the essence. Mandatory indoctrination would be unnecessary where the rules are spelled out ahead of time.
"[We oppose...] Medicaid or any other taxpayer funding." Acceptable.
"We also condemn state-mandated abortions." Acceptable.
"It is the right and obligation of the pregnant woman, not the state, to decide the desirability or appropriateness of prenatal testing, Cesarean births, fetal surgery, voluntary surrogacy arrangements, and/or home births." Acceptable. But, consider this: If a woman is "obliged" to make positive decisions about her's and the fetus' health, then doesn't this imply an obligation to sustain the life of the fetus in the first place?
No one questions a woman's right to choose whether, when, or with whom to conceive a child. What is at issue here is a special privilege to avoid the consequences of that choice. To grant such is illiberal. We should be about protecting the right to life within a context of due process administered by constitutional government.