Current Events, Ethical Issues, Law & Legal Philosophy, Moral Theory, Political Philosophy/Theory, Toleration

Libertarianism and Abortion

8 Comments

I offer this as a tentative foray into a discussion about abortion, obviously spurred by the recent SCOTUS decision, Dobbs v. Jackson.  I note that I have long been convinced that as brilliant as Judith Jarvis Thomson’s contribution to the debate was, it doesn’t actually solve anything. (For more on that, see the chapter Lauren Hall and I co-authored in The Routledge Companion to Libertarianism.)

Different libertarians define their political ideology in different ways.  (No surprise; different egalitarians do this, different socialists do this, different welfare liberals do this; in short, all political ideologies are multiply defined.  Presumably those adopting the same name have at least a family resemblance.)  

Some libertarians adopt the Non-Aggression Principle. Others adopt a view that indicates simply that individual liberty is the predominant value, never set aside to promote any other value. Others accept that natural rights are the foundation for the view. Others adopt some form of consequentialism. My own libertarianism is defined by commitment to the harm principle: no interference with an individual or consensual group is permissible except to rectify or prevent genuine significant harm.

What does this my form of libertarianism say about abortion? If the principle was only about harm to persons, abortion would presumably be clearly permissible since the fetus is not a person even though it is human. Of course, religious libertarians are likely to believe that all human life is sacred and that the intentional ending of such is necessarily wrongful. While I do not believe that, the harm principle in my view is not only about persons or humans. Genuine significant harm can occur to non-humans and merit interference, so whether or not the fetus is a person is not all that matters.

The question then is: is abortion a genuine significant harm? To clarify, I use the term “significant” to indicate that de minimis harms are not the sorts of things we interfere with (the cost of doing so may be a greater loss than the harm itself). I use the term “genuine” to indicate we are not discussing mere hurts or offenses, but hurts that wrongfully set back the interests of another (for more on this, see Feinberg or chapter 3 of my 2018). Once this is recognized, it should be clear that some abortions may well be genuine significant harms and some may not. Aborting an 8 month old fetus merely because one decided on the spur of the moment to take a world tour is, I think, wrongful. It would also be significant—ending the life of a human that could have been very good. On the other hand, aborting a 6 week old fetus because one was raped is unlikely to be wrongful and is at least plausibly less significant since at that stage spontaneous abortions are not uncommon.

Some will now likely object that what is wrongful is subjective. I basically think this is false—it is at least false if meant in anyway that is troubling for what I am saying here. People do not simply decide for themselves what is wrongful.   For more on this, see this BHL post and this one.

Assume I am right thus far: some abortions are genuinely and significantly harmful and some are not. What does that mean for law? On my view, answering this means first recognizing that law is a blunt instrument and as such has to wielded carefully. Perhaps making all abortions illegal after 8 months pregnant is reasonable. Making all abortions illegal is not. If a clear set of guidelines for wrongfulness can be decided upon, perhaps laws against abortions that are wrongful would be reasonable. I can’t here work out what such a list would include, but I do think a law against aborting 8 month old fetuses reasonable. Perhaps also a law against aborting a fetus on a whim (perhaps have a 5 day waiting period). Laws requiring parental (or spousal) consent might sound good but are likely to run up against significant objections, including the real possibility of rape and incest and unacceptable familial pressure. The final list will be difficult to determine and absent a final list, jurisdictions may adopt differing lists (as SCOTUS allows).

Importantly, the jurisdiction issue is more complicated than some recognize. Philosophers have long debated what would give a government legitimate jurisdiction over a group of people. I won’t be able to delve into that here, but will simply assert that I do not believe any of the US state governments is likely to have genuine legitimacy over all people within their borders. For that reason, it strikes me as perfectly acceptable for the federal government or other state governments to aid an abortion-seeker in a state wherein they are unable to get an abortion legally. (For one way this can work, see this interesting story.)

8 thoughts on “Libertarianism and Abortion”

  1. “Perhaps making all abortions illegal after 8 months pregnant is reasonable.”

    Perhaps, but I would advocate making birth, when the fetus becomes a baby and begins to breathe, nurse, cry, and go through an amazing number of diapers, the moment at which protection from the law is applied. Consider the complications of an 8-month cutoff: exactly what day did the pregnancy begin?

    Thanks for this non-hysterical look at abortion.

    Liked by 1 person

    1. It is even more complicated than I was thinking. A friend wrote me indicating that “some severe, even fatal, fetal abnormalities are detected only in the 7th or 8th month.” I can’t imagine a good argument that in such cases abortions would be wrongful.
      Thanks for the comment!

      Liked by 1 person

      1. Or what about cases in which it was only apparent late in the pregnancy that the mother’s life was at stake? It’s striking that your harm-based analysis seems to make no mention of harm to the mother at all. It doesn’t seem implausible that being forced to remain pregnant against your will is in itself harmful.

        Liked by 1 person

      2. I take it as obvious that if she is forced to be pregnant, there was a harm and that if termination of the pregnancy helps rectify the harm, it is permissible. I think cases of “being forced to remain pregnant” are significantly more difficult–and part of why I ultimately don’t find JJ Thomson’s argument persuasive. (Relatedly, but not the same: I still believe in the doctrine of specific performance.)

        Like

  2. There are several ways to address the dilemma.

    One is to accept that the definition of human is fuzzy. Is a 8 month old fetus a human? How about a 2 year old toddler? How about today’s Joe Biden? None of these are viable tissue masses on their own. (How many humans are truly viable all by themselves, anyway?)

    Having a fuzzy scale ranging from 0=thing to 1 = Randian Uberman, rank an 8 month old fetus, a two year old toddler, Joe Biden, and yourself. From there derive a penalty function for depriving the above of life support.

    Or we could use Revealed Preference. A woman who freely carries a fetus to 5 months clearly has less aversion to pregnancy than one who takes a morning after pill at first possible sign of pregnancy. The outlier case of a 10 year old subject to incest/rape is not a free agent to getting pregnant nor is she a free agent to taking a timely morning after pill. Giving such a girl a pass on a later abortion is not equivalent to giving a general pass.

    Using either criterion, we still establish that there is gross wrongness to abortion; what we are debating the the amount of *net* wrongness, weighing the death of the semi-human vs. the inconvenience of the potential mother.

    Maintaining a recognition of the gross wrongness is critical to the survival of humanity qua humans. Once an embryo is deemed fully without moral value, there is no moral barrier to tampering with embryos. Designer babies, chimeras, disposable clones, and cyborgs follow. Read Frank Herber’s “Destination Void” for a peek a the future that Team A is calling for.

    Like

    1. I think it helps to distinguish between humans and persons. If there are aliens flying around in space, they are likely persons but not likely humans. I take “human” to be a biological category that includes me and you, babies, the elderly, and yes, fetuses and dead humans. I don’t have any real objection to the idea that some persons are “more person-like” than others, but most philosophers would cringe at the thought. All of that said, I don’t see how “gross wrongness” would be established. I’m not even sure what the adjective adds. I would think, as I said, that some abortions would be wrong and some would not. I also don’t see a reason to worry that much about the possibilities you raise at the end of your comment. (Of course, I would say clones and such would be entitled to protection from harm just like others.)

      Like

  3. What I mean by “gross wrongness” is wrongness without making other considerations. Shooting people is a gross wrongness, but shooting a mass shooter in progress is a net goodness, as stopping the mass shooter produces more good than the wrongness of shooting someone.

    Like

Comments are closed.