Libertarians for Life - Comments on "Abortion: Is Pro-Choice a Libertarian Position?"

>Abortion: Is Pro-Choice a Libertarian Position?>

by Dr. Joseph S. Fulda
Libertarians for Life

Libertarians for Life always welcomes comments on its literature, and that applies no less when we carry materials from outside LFL. It is particularly true when we do not agree with all of a writer's views, since a fuller discussion may be helpful in clarifying how LFL's reasoning differs from others in the libertarian and pro-life movements.

In the case of Dr. Joseph Fulda's article, "Abortion: Is 'Pro-Choice' a Libertarian Position?", we received comments from a poster at the University of Virginia. Following are the text of those comments with Dr. Fulda's reply included, and links to comments by LFL, which follow at the end.

Comments from poster, with Dr. Fulda's reply, followed by LFL comments in hyperlinked footnotes.

Comment from the poster at UVa:

Just a couple of statements I thought were worth refuting in your paper:

1. In the second paragraph: "The control being sought is not over one's own body but over another" as a contradictory statement that pro-choice advocates make their arguments under the premise that choice is freedom and control over one's self.

True, freedom is allowed provided it does not infringe upon the rights of another (such as assault and robbery) however, the author of this paper has failed to make an essential distinction; that is, the fetus is inside the woman's body! ¹

Unfortunately for your cause, you cannot treat every situation with one set of rules and values (some of which are only your values, and not others'). Assault and robbery would carry a whole other image if it occurred inside one's own body.

And since the author has brought up such technicalities, I thought I'd reply with one as well: The mother has produced the fetus from her own biological materials (or those which she has consumed and digested), and thus, she has sole control over it, and if she feels the need, can revoke her givings. ² Is the author suggesting a mother should be punished for not eating properly, or consuming alcohol, or smoking during pregnancy, all which would most certainly damage if not kill an embryo? ³ Please.

Dr. Fulda's reply:

First of all, yes, a pregnant mother can be, in fact as well as in my opinion, charged with abuse for behaving during pregnancy in a manner likely to cause harm to the fetus: Specifically, I support penalties for mothers whose babies are commonly known as "crack babies." Also, when such children reach the age of majority, they should be able to sue for negligence, recklessness, and/or intentional wrongdoing. The pregnant mother does indeed have a responsibility to her child. ⁴

Second, the child is made of the mother's (and father's) biological materials -- so does that mean we can kill infants? Of course not. So the key point is your earlier one, not that the child is of mother (and father) but that the fetus, the unborn child, is within mother. Now, this is a distinction which makes no difference. I cannot, in general, kill an invited guest in my home, nor, for that matter, can I kill an intruder ⁵ -- an exception is made for intruders who might threaten my life, and that exception, I hold, applies to abortions, also: If the child threatens the mother's life, it should (not may) be aborted -- given that suicide is prohibited and forcibly prevented, when possible. ⁶ Yes, it is terribly inconvenient for a woman to have to bear a child to term that she intends to give up for adoption, but that is the consequence one is left with for one's sexual liaisons -- we cannot allow killing the child because of this inconvenience. The life of the child when weighed against the inconvenience to the mother is surely paramount.

Third, one cannot revoke what one has given when what one has given is life. As Charlotte Brontë wrote in Jane Eyre (Penguin Books--Signet Classics, 1982, Chapter 14, p. 141), "The human and fallible should not arrogate a power with which the divine and perfect alone can be safely entrusted," and the revocation of life is surely one of those powers. ⁷

Comments from UVa, continued:

2. The third from last paragraph: Suggesting that carrying a pregnancy to term is a consequence of one's own action. Is a newborn baby a consequence!? A person who becomes pregnant must suffer the "consequence" of her actions. What a horrible way in which to treat people. ⁸

Dr. Fulda replies:

Yes, a baby is a consequence of sexual activity -- everyone knows that nowadays. No, there's nothing "horrible" about insisting that freedom brings responsibility -- indeed, how could it be otherwise?

Best wishes,

Joseph

Dr. Fulda is the author of Eight Steps towards Libertarianism (Free Enterprise Press, 1997). He is a Contributing Editor of The Freeman, Associate Editor of Sexuality and Culture: An Interdisciplinary Annual, and columnist for Computers and Society. He has been frequently published in scientific journals, mathematics journals, law reviews, philosophical journals, and journals of opinion.

LFL's comments on both:

The post notes "the fetus is inside the woman's body!"

But location does not determine what sort of a being we are dealing with, whether inside the womb or out. The purpose of abortion is a dead fetus; if the fetus is not the sort of being that has rights, then there's no libertarian objection to abortion. If they do have rights, however, it seems one is at least going to have a good explanation for the right to kill them as a simple matter of preference. Perhaps we might better discuss that root question. (For LFL's position, see our literature list.)
The post notes, "The mother has produced the fetus from her own biological materials.... if she feels the need, can revoke her givings."

Again, if there's no person with rights there, she can do anything she wishes. If there is a person there, however, then if she owns the body now, why not equally after birth?
The post asks what about punishment for "not eating properly, or consuming alcohol, or smoking during pregnancy, all which would most certainly damage if not kill an embryo?"

First, note that these activities do not generally harm the child, although they increase the risk. Risk, as opposed to negligence or attack on the child, is unavoidable in life. The question is, can the mother act absolutely without concern for what she does to her child? Is it all right for her to take thalidomide? If the child is injured by it and born deformed, is it the same as if it had been an accident? Baby Anna Rodriguez, whose arm was ripped off in an abortion attempt -- does she have no claim, no right to sue? Most people would have no trouble in admitting the child's claim in cases of such prenatal attacks. Most people also make a clear distinction between recklessness and negligence on the one hand, and accidents on the other, and demand a firm standard of proof. At least some cases can meet those standards.

That gets into enforcement, however. LFL's main point is to discuss the rights of prenatal children -- without agreement on that, discussion of enforcement leads nowhere. See #4 below, for more on enforcement.
Dr. Fulda notes that he supports penalties for negligent mothers, specifically mentioning "crack babies".

The problem here is that the statutory questions of enforcement are almost invariably raised as a way to avoid discussing rights, personhood, etc. It's either raised as a scare tactic ("pregnancy police", etc.), or to demand a detailed list of specific laws to cover every conceivable situation. Either way, it's a diversion. For the moment, suffice it to note that the pregnancy police was never suggested when abortion was illegal, and is justifiable only under a philosophy of law that demands that government absolutely preclude the very possibility of breaking the law. That's a philosophy of law rather more popular on the abortion-choice side than anywhere else.
Dr. Fulda notes that one cannot kill an invited guest, nor even an intruder.

That's certainly true, but the case of the preborn is even stronger: They're certainly not intruders. moreover, the "invitation" was not one they could refuse. Causation and volition in causing their existence are totally on the side of the parents. The children are more like captives. (Note "like": Similar in the absolute power the parents, dissimilar in that while the relation arises without the children's consent, it is not "against their will".)
Dr. Fulda expresses the view that, "If the child threatens the mother's life, it should (not may) be aborted."

This is a point on which LFL disagrees with Dr. Fulda. At the minimum, an "obligation to kill" does not seem to arise out of the nonagression principle. Additionally, the child's actions are not voluntary. A threat to the woman can arise only because of the initial, voluntary, actions of the parents. It seems odd to say that we have the obligation to kill someone because they are in a situation in which we put them.

That does not say that the mother may not attempt to preserve her life. Such cases are "lifeboat" situations, where at least one must die. We don't punish people fighting to survive in such cases. But neither do we act as if the one killed to save the life of the other is a criminal or an animal. Such cases are rare, but doctors must still remember that they have two patients, not just one, nor one and an aggressor.
Regarding the Brontë quote, LFL does not use religious arguments. But that is a nice quote. :)
The post asks, "Is a newborn baby a consequence!? A person who becomes pregnant must suffer the 'consequence' of her actions. What a horrible way in which to treat people."

The poster may not have noticed, but Dr. Fulda's article distinguishes two senses of "responsible": 1) performing an action, and 2) being liable for the consequences. The child is clearly not a mere "consequence"; but just as clearly, the child's existence is a consequence of performing the action of sex, as the child's resulting needs -- for which, the parents are liable. Nor are children "punishments" ("suffering" the consequences).

And if carrying the child to term is a "horrible" way to treat people, what about the trials of parenthood after the child is born? Or should the child "suffer the consequences" -- pay the price -- of the mother's and father's actions? With capital punishment? Before or after birth?

The poster probably does not intend such a conclusion. But that may only mean -- as noted above -- that we should be discussing the root questions of whether the fetus is a person with rights and whether parents owe their children care and support.