In the 1970s the issue was no more than women's rights. Period. The libertarian position was that women have the best access for control over their own bodies.
Being a good guest, I did not argue with my host when she said that abortion is murder. This is a position I largely agree with. I would make the more technical claim that it is killing, but not murder.
Because of my firm commitment to methodological individualism, I presume that I could get very upset about the role of abortion in the legal system. However, over the years I have come to think about this issue in very textbook terms. I have sterilized the subject primarily because at the age of 33 I know very few people who are in the position where they must abort a baby in order to still have a life that matches their expectations.
I guess my major concern with the argument --
- murder
- law provides for protection against murder
- we like that law provides for the protection of murder and we want to keep it
- abortion is murder
-- is that I don't really understand the role of the state here. The state is an apparatus that was designed to provide consistent expectations about the behavior of other people. I have to think that there is a sufficient penalty against murder in order to remove this option from the set of means to get what I would like. The state then is a collection of negotiated rules that are rather regularly enforced. Some rules are irregularly enforced, sure, but murder is one of the most regular.
If we want to talk law, let us talk law: I cannot escape the logic that killing a fetus is related to killing a person. This is an interpretation of reality. It will largely determine your view on the subject. But let us assume that killing a fetus is killing a person. Should a woman have the prior right to be without child? Granting this right would mean that the fetus is trespassing. Safe Harbor laws would suggest that unless the fetus poses a threat the host has to allow harbor. Now, what about contributing to the cause of the fetus being there. If the woman knowingly engaged in sex without precaution during her fertile cycle, should this be enough to remove her right to expel the fetus? Even if we grant that a woman has a prior right to be without child, this still allows certain prohibitions against expelling that child into circumstances where it will not be able to survive independently. In cases where the woman had no voluntary role in creating the child then it seems clear that she can be a good Samaritan or not, again assuming she has this prior right. I think the law can certainly be used to discuss this issue.
But it does not seem to be an issue of law. It is an issue of moral aesthetics. Where I sit, a 33 year old male with a stable and nice life, the issue can be viewed as one of morality. I have that luxury. Were I to leap from the theoretical to the actual and constrain someone else's ability to act, I ought to have the most firm legal backing I can before I begin to make the legal argument that abortion is murder. As someone who has spent some time around libertarians, I do not think a consistent libertarian can start and end on the abortion is murder argument. I rather believe that the law has to articulate the set of actions that are taken responsibly from the individual's perspective. Our moral repugnance tells us that we have identified a need for improvement in this area.
Well, let's try a thoroughly libertarian argument. Assume the fetus is a person, and killing it is genuine murder. Should the state MANDATE that person A (woman carrying fetus) MUST serve as a life-support system for person B (fetus)? That sounds like a clear violation of person A's liberty. True, person B will die without person A's act of altruism. But should the state get into the business of mandating altruistic acts whenever the lack of such an act would result in a death?
ReplyDeleteI totally understand the case where we don't require that. I certainly sympathize with that interpretation of individual liberty. I know that in marine law that private property is not a concern during storms at sea -- there is a safe harbor law. Were we to link these two legal precedents, again I am thinking purely in the abstract, we would have at least a consistent ground for interpreting the case. But does the right to expel a fetus also imply that private property binds for the owner of a dock during a storm?
ReplyDeleteI am perfectly willing to reject private property rights (at least in a purely dichotomous vision) and still call myself a libertarian as long as contracts are specified to the point of providing clear incentives for action and reaction. Perhaps I am too willing to try and think "beyond" rights based thinking.
I once had a close friend decide that the right choice for her was to abort the child she was carrying. The fact that she had the right to do this did not make it any less painful. She remained convinced that she had made the right decision, but her reaction was more like getting a divorce than deciding a matter of birth control. I think this is where I began to think about the issue as lying on a continuum and not as as a discrete choice. For instance, my friend was a diagnosed but not currently being treated for alcoholism. The harm to the baby and mother seemed to be great if we simply interpret according to dichotomies. To some extent I believe only she could have made the choice to stop drinking and have the child or to stop the child and continue drinking. I expect some combination of the two would have occurred without her choice being there.
So this is a long way to respond to a woman embodying a life-support system. I guess I am claiming that the methodological individual is prior to concern over the fetus. This backs me into the corner of weakening my position against penalizing murder. I have never worked out the reason that post-birth and pre-birth termination of life should not be treated the same way. Clearly even most pro-life advocates would not suggest capital punishment for the mother (perhaps only the doctor).