Shots Across the Bow

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The Libertarian and Abortion

After reading the piece below, you may wonder how a man with libertarian tendencies such as myself can reconcile that stand with an essentially libertarian outlook. The answer is easy.

With tremendous difficulty.

If I believed that the fetus was not a person until birth, then it would be easy. In that case, the state would have no right to interfere in any way with the pregnancy and/or its termination.

But that's not what I believe, so the answer is not so easy.

Personhood begins at conception. It's the only logical place to pin it down, and as such, that person has a right to protection from harm, and the state not only has a right, it has a duty to offer that protection, with the vital caveat that it provides such protection with minimal impact on the mother's freedoms, in keeping with my central philosophy. Now then, let's take the above statement piece by piece and see where it leads us.

First off, I'm going to skip the mystical mumbo-jumbo about souls and such, and just stick with biology to determine when to assign personhood. When an egg is fertilized by a sperm cell, a new organism is created. It is no longer genetically identical to the mother, so cannot be considered as part of the mother. The zygote has it's own genetic code, unique from the mother, so biologically, it is a separate organism. It is however, a human as far as biology is concerned. Undeveloped to be sure, but still human.

But is it a person?

Here's where it gets tricky because personhood is not a scientific concept, but a legal one. When does the state recognize the individuality of this new human? Based on current law, which allows D&E (partial birth abortion), a baby is not a person until it is fully removed from the mother's body. This defining point has developed almost at random, based on convenience, not any underlying science. As such, it remains amenable to further changes and extensions, and there is some pressure to extend it further in the case of babies born with severe birth defects. However, let's use this boundary for a little speculation, to see if it truly fits our beliefs.

A while back, there was a case that made the news about a family who had a baby just on the hopes that the baby would be a tissue match for one of their other children who needed a transplant. Ethicists and moralists had a field day, condemning the parents for making a baby for spare parts, as it were. With that in mind, let's suppose they went about it a little bit differently. Instead of allowing the baby to be born, suppose they underwent a D&E, but instead of crushing the skull, the infant brain was chemically pithed, leaving the autonomic nervous system intact. The baby would be brain dead, but could be kept on life support while it grows the spare organs.

Given our current definition of personhood, this would be perfectly legal and at least as ethical as the standard D&E. In fact, I could argue that this is more ethical, since the baby being destroyed is at least serving a useful purpose.

Yet most folks would find such a practice an abomination, and would call for legislation to outlaw it as a moral outrage. These same people, however, would be deeply uncomfortable expressing why they feel that way. When I've raised this scenario in the past, people have said that it violates the sanctity of life, or words to that effect, but when pressed for details, specifically concerning the rights of the fetus, they grow defensive or evasive. They do not wish to acknowledge that their reaction to this scenario reveals that they do, in fact, accord some form of personhood to an unborn baby.

So now, given that a new organism is formed at conception, and that personhood is recognized legally at an entirely arbitrary boundary, and that the vast majority of people believe that boundary is way too late, the only non-arbitrary place to assign personhood would be at conception.

Now, the next step is determining how the state may best act to protect the rights of the fetus while minimizing its invasion of the rights of the mother. This is the essential dilemma of libertarianism; how to balance competing rights to achieve the optimum result with the minimum interference.

The extremes are easy; neither the mother nor the baby has the right to kill the other, therefore abortion should be allowed in cases where the life of the mother is in jeopardy. Abortion as retroactive contraception should be ruled out completely. Since this accounts for about 93% of all abortions, that takes care of the majority of cases. The remaining cases are less clear.

What to do in cases of rape or incest? It boils down to this: Which is worse, to impose the ultimate penalty for another's crime on an innocent baby, or to force the victim of the crime to carry the baby? The solution to this case, though tragic, is simple. The state has no remedy here; the rights of the mother and the baby are in such perfect balance that there is no course of action that can be said to give an optimum outcome. Since the state can do no good, it must back out and do no harm. This decision must be left up to the mother and her family.

The last case is the trickiest; abortions where the health of the baby is in question. Who decides what is in the best interests of the child? The parents or the State? Obviously, that responsibility resides with the parents, not just for obvious reasons, but because no government should ever be empowered to decide which ailments, diseases, abnormalities or defects renders a baby subject to abortion and which ones don't. Eugenics is an ugly word, and that's what this type of regulation would lead to.

At the same time, should a mother be able to abort a baby because he has a harelip or a cleft pallet?

I should certainly hope not, but I see no way for the state to intervene without causing more problems than it solves. That being the case, the state should not get involved, and trust instead in the responsibility of the parents in these situations.

In summary, abortion would be legal
  • in cases where the mother's life is at risk
  • in cases of rape or incest
  • in cases where the baby's quality of life is impacted by birth defects or other abnormalities.


That's it.
Posted by Rich
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Yes. And yes. And yes again. But at the end -- No.
The difficulty comes from the uncertainty inherent in all pregnancies. Your argument assumes that we can TELL which pregnancies are going to endanger the life of the mother, early enough that an abortion will be safe and practical.
Can't. Not always.
Just to snag one example out of the ether, women still die and suffer brain damage from eclampsia in this country. Eclampsia isn't something that shows up in the first trimester. It doesn't come on until after 20 weeks' gestation. And it's damn dangerous.
There are many other complications that can occur late in pregnancy. And by that time, it's generally too late to protect the mother by performing an abortion.
So while I agree with you that a fetus is a living human person, and while I condemn the practice of abortion-on-demand-as-birth-control, I STILL don't want the State to have the power to force women to undergo an entire pregnancy. Because some of those women WILL develop unexpected complications, and some of those WILL die or suffer irreversible brain damage. And that's not a risk I want the State forcing anybody to undergo.
Posted by Laura M. Hagan  on  02/09  at  04:17 PM

Here's the problem I have with these kinds of arguments:

1)How do you define, "When the Mother's life is at risk?" Two doctors could come to different conclusions based on the same evidence. Medicine is as much an art as it is a science, that's why people go for second <i>opinions</i>. Certain doctors could get reputations for being either liberal or conservative on defining when a mother's life is at risk.

2)How do you define "rape and incest". Silly question right? But what about women that decide not to report instances of rape or incest and then find out that they are pregnant? Or what about date rape? How about cases where the police think the woman is lying, whether she is or not? And who makes that determination and thus gives a woman the permission to end her pregnancy? Would women who had unprotected sex start claiming to have been raped in order to qualify for an abortion?

3)What are "birth defects or other abnormalities"? Are two parents with certain genetic conditions that would be passed on to their kid considered a defect or abnormality?

As I see it, abortion has to be legal in all circumstances or illegal in all circumstances. Grey areas only lead to more problems. And since I think that there are certain times when abortion must be allowed, it should always be allowed no matter the time frame or circumstances.
Posted by Manish  on  02/09  at  09:31 PM

It seems to me to be similar to the case against euthenasia...

Murder in the US is illegal. The premeditated act of taking another person's life - whether the premeditation takes place a week, a day, an hour or a second before the deed is done - the willful ending of another person's life when your own life is not in danger from that person, and no other justification is possible is considered murder.

However, some people believe ending a person's life who's on a respirator, or brain dead, or both, or consumed by Alzheimers, or otherwise suffering from a permanant and debilitating condition is a just and moral act. Maybe it is, maybe it isn't. In the US it is an illegal act, tantamount to murder (in most states at least - are there some states where it is legal?)

But if euthanasia were legalized everywhere, wouldn't some people possibly be tempted to "euthanize" their elderly relatives for other reasons, and claim it was in the patient's best interests - when in reality it was for their own interests (can't take care of them, want their insurance money, want the inheritence, etc.)?

If it were scientifically determinable that there is one specific physiological point where you could say, "Yes, this patient is beyond any hope of recovery or relief - their life must end" then things might be different. But now it's mainly a judgement call by those performing the act. Who knows if the patient that requested it was in sound mind? Was in such pain that her husband had to pull the plug? It's almost totally subjective.

That's why most everywhere it's as illegal as murder - there's no quantifiable way to be sure it was necessary or justified. And you can't take a chance that people will be freely able to take advantage of its legality.

Same with abortion (sorry that took so long) - how can you take a chance that a mother and her family can quantifiably decide that a baby was the results of a rape or incest, or if it was simply bad judgement on both parents' fault? Seems to me, like euthenasia, to err on the side of caution is safer and more moral - if you allow her to make that determination, who's to say the mom won't say the one night stand she participated in wasn't rape? Or accuse her step-father of incest when it was actually her and the kid next door on the back porch? One way the baby dies - the other it lives.

Remember what they say about death row - better ten guilty men go free than one innocent man be put to death...
Posted by Barry  on  02/10  at  03:20 PM

Here's what interests me; a liberal man is pro life; a conservative woman is reluctantly pro choice; another liberal man is strongly pro choice; and a libertarian conservative is limited pro choice. truly, this issue crosses both political and gender boundaries.

Let's do this: Manish, imagine applying your argument to killing an adult. In some cases, it may be justified, i.e. self defense or defense of another. In other cases, it may not, i.e. murder. In still other cases, there are questions of intent to consider, i.e. negligent homicide, manslaughter, etc. But by your argument, each killing would have to be treated the same, either prosecuted as murder, or exonerated.

Obviously, that's not a good solution, so why would we apply it to abortion? Just because the issues involved are complex doesn't mean we should refuse to deal with them, especially if that refusal may condemn 1.5 million persons to death.

Laura, I'm having a little trouble following your argument. You say that because there are conditions that can threaten the mother's life, like eclampsia, that develope late in pregnancy when it's too late for an abortion, that abortion should be legal. Are you saying we should allow women to have an abortion simply because the possibility of eclampsia exists? I'm sure I'm missing something here so please help me out. In any event, I've read statements from OB/GYN saying that late term abortions are never required to save a woman's life. Now, since I'm not a doctor, I don't have the background to evaluate the accuracy of that statement, which is why I support allowing abortion, even late term, in the case where the mother's life is at risk.

Barry, I understand your argument, but like Laura, I don't want the State to have that much power over a family since there is no real benefit gained. As a libertarian, my bias is to limit gov't interference; thus there should be a substantial and demonstrable benefit to giving the State the power to interfere in a pregnancy. In the case of abortion as retro contraception, I think that burden is met.
Posted by rich  on  02/11  at  01:02 PM

Rich, you ask, "Are you saying we should allow women to have an abortion simply because the possibility of eclampsia exists?"
And the short answer to your question is "Reluctantly, and with great moral condemnation of the act, yes."
Not just eclampsia, but the whole constellation of risks involved with pregnancy. Because of those risks, I consider it unacceptable for the State's police power to force a woman, on pain of imprisonment, to continue with a pregnancy that may well kill her or leave her permanently disabled.
This is my position ONLY because the risk cannot be accurately evaluated in every case. When the day comes that the risk CAN be accurately evaluated, my objection to the State exercising that power will disappear.
More likely, though, it will come to pass that advancing technology will make it possible to extract the fetus intact, with no greater risk to the mother than is present in abortion, and then gestate the fetus in an artificial womb. And when THAT day comes, I will be wholeheartedly and unreservedly pro-life.
Incidentally, the OB-GYN statements you've read are either misreported by the source or demonstrably untrue -- the ONLY treatment for eclampsia is to remove the baby, and eclampsia almost never shows up before the 3rd trimester. Now, I suppose the OB could be parsing words, and calling that a "premature induced labor," or "premature C-section," but if you're removing a baby from the womb before it's viable, that's an abortion no matter what you call it.
(Also incidentally, on the issue of parsing words, I have no problem calling the baby just that -- a "baby," because that's what I believe it is.)
I condemn nearly all abortions. I consider them deeply immoral -- a mortal sin. But there are lots of mortal sins that I don't want prevented or punished by the police.
Posted by Laura M. Hagan  on  02/12  at  09:55 AM

I see what you're saying, and I agree to a point. In fact, if the mother's life is in danger, I support abortion, even late term. What I don't understand yet is why that justifies abortion on demand, unless, like manish, you subscribe to the "all or nothing" approach.
Posted by rich  on  02/12  at  11:39 AM

It's a matter of allocating the burden of proof. Under your formulation, where the mother can abort if her life is in danger, I assume that you would place the burden of proof on the mother -- she can't have an abortion unless she can prove that her life is in danger. And my point is, at the point where that proof becomes available, it is often too late to protect the mother in any event -- events have progressed to the point where the mother's life is in danger, an abortion is necessary, but it may yet be insufficient to save her.
I would place the burden of proof on the State. The State must not interfere with a woman's choice to abort unless it can demonstrate that her life is NOT in danger from continuing the pregnancy -- and given the state of medical knowledge, such proof is impossible to furnish.
The reason I don't formulate the issue as "all or nothing," is that I don't believe "all or nothing" is a sound philosophical approach. It ends up being the actual approach, in practice, because of the state of medical knowledge. But as medical knowledge advances, it becomes possible to differentiate between situations.
Note also that I might be amenable to your formulation, and placing the burden of proof on the mother, in the event that medical knowledge advances to the point that she can reasonably be expected to KNOW whether this particular pregnancy is a risk to her life or not. But we're not there yet.
Posted by Laura M. Hagan  on  02/12  at  01:52 PM

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