The following is a guest post by Neera K. Badhwar, Professor Emeritus of the Department of Philosophy at the University of Oklahoma and a Senior Fellow in the PPE Program in the Department of Economics at George Mason University.
Libertarians want a limited government, a government that protects rights, enforces contracts, defends us against foreign enemies, and otherwise stays out of our affairs. The vast majority of libertarians support abortion rights on the grounds that the pregnant woman owns her body and has a right to decide how to use it. Some libertarians, however, support abortion bans because they believe that abortion violates the fetus’ right to life, a right they regard as being as strong as a child’s right to life. It is commonly held that both positions are consistent with libertarianism as a political theory.
I disagree. Whereas regarding abortion as morally wrong is consistent with support of a limited government, support for legal bans on abortion is not. For a fetus’ rights can’t be protected across the board without opening the door to a hugely invasive, almost unlimited-in-the-bedroom, government. The reasons for this have to do with the nature of pregnancy, the relation between the pregnant woman and the fetus, and the nature of the state.
One reason legal bans on abortion invite governmental invasiveness is that abortion is often indistinguishable from miscarriage. According to the NAPW, “fifteen to twenty percent of all pregnancies (or approximately 1 million a year in the U.S.) will end in a miscarriage or stillbirth”. A government that looks upon almost all abortions as a crime will tend to be vigilant about every pregnancy loss. Was it really a miscarriage – or was it an abortion? Zealous prosecutors have criminally charged women who have had miscarriages on the mere suspicion of a self-induced abortion – even while Roe v. Wade was in force.Indeed, even in California, where the law explicitly holds that a woman can’t be charged with murder for loss of her pregnancy, prosecutors charged two women with murder after they had stillbirths that their doctors judged had been caused by drugs. (In one case, the prison sentence was overturned after the woman had served four years in prison, in the other case, it was dismissed.
Another reason why an abortion ban invites greater government invasiveness is that, although every state allows an abortion when the mother’s life is in danger, not many such dangers are clear-cut. If a woman is hemorrhaging, and without an abortion sepsis will set in and kill her, an abortion is clearly justified. But what if the danger is not imminent, and it’s possible that the fetus will be expelled naturally? With the threat of prison looming over them, how many doctors will be willing to take the risk of performing an abortion? If the past is prologue, not many. When prosecutors started charging doctors who seemed to them to be over-prescribing pain medicines to their patients, scores of doctors stopped prescribing them.* The results were devastating: pain patients either lived in constant pain, or turned to the black market and bought drugs adulterated with heroin or fentanyl, a potent killer. (One pain patient recently killed his doctor for leaving him in constant pain, and then killed himself. We should expect many doctors to stop performing life-saving abortions when the danger to the mother is probable, or even certain, but not imminent, out of fear of prosecution. After Texas passed S.B.8 in September 2021, a woman with an ectopic pregnancy was turned away by her own doctor as well as by a hospital – even though an ectopic pregnancyis a death sentence for the fetus, and likewise for the woman if she can’t get an abortion in a timely fashion.
In cases like these, we can blame the doctors for not doing their job, since the Texas law does allow an abortion in a medical emergency, and a pregnancy that will kill both the fetus and the mother is a medical emergency if anything is. But the medical emergency exemption does not cover pregnancies that are threatening to women with pulmonary hypertension, or certain heart conditions or other health problems. Pregnancies in these conditions pose an especially high risk for low-income, rural women who don’t have access to good doctors.
Legally enforced abortion bans also open women – including women who are not pregnant but could become pregnant – to encroachments on their bodily autonomy. According to civil rights attorney, Cynthia Conti-Cook, “pregnant people’s decisions—to self-medicate, to not medicate, to seek substance abuse treatment, to drink alcohol, or smoke cigarettes—are all decisions that could be criminalized.” And thanks to digital technology, the state could easily surveil these behaviors. Prosecutors could also “subpoena women’s medical records and private social media files as part of criminal investigations into abortion providers”. Some politicians have even suggested keeping tabs on women’s menstruation cycles – and at least one official has already done so.
Anti-abortion libertarians could argue, rightly, that such invasions are not essential to state bans on abortion. But the point is that they are highly probable, if not inevitable, given the nature of the state, and a commitment to a limited state requires libertarians to refrain from providing the state with additional tools for abusing us. Libertarians of all people should be aware of the tendency of government to encroach on more and more of our lives, and to be more and more punitive.
Some states currently exempt women who seek abortions from criminal penalties, but there is no guarantee that these protections will remain in place. There is a strong anti-abortion movement of “abortion abolitionists”pressuring legislators to eliminate such exemptions. And if the fetus is a person with rights equal to that of a child, then it stands to reason that the mother who kills it is a criminal, and must be treated as such.
Again, just as a RICO violation “does not require intent, recklessness, willfulness, or even knowledge on the part of the accused,” a woman who does illegal drugs and has a stillborn child can be charged with homicide, even if she didn’t know that she was pregnant, or didn’t know that drugs could lead to a still birth. Of course, the elimination of mens rea is not inherent in an abortion ban, and no libertarian would support it. But Congress and state legislatures often pass laws without the requirement of mens rea, and libertarians who want to keep the state within bounds must take this feature of the state into account.
If the fetus has as strong a claim to life as a child, then the fact that the fetus resulted from rape or incest, or that it has severe anomalies, cannot justify an abortion. After all, a child born of rape or incest, or with severe anomalies, may not be killed. This leads to a further reason why abortion bans must expand the role of government in our lives. More babies with birth defects will be born, most parents will be unable to take care of them entirely on their own, and private charities will be limited in their ability to help. The obvious outcome is that the state will have to provide support for them. But no new or more extensive state program comes without higher taxes and a new and more meddlesome bureaucracy.
For all these reasons, abortion bans open the door to an ever-more powerful state. Two of the three reasons I’ve given – the nature of pregnancy and the pregnant woman’s relation to a fetus – don’t apply to laws against homicide as ordinarily understood. The closest thing to a miscarriage in the case of homicide is an accidental death. But whereas a miscarriage often cannot be distinguished from an abortion, an accidental death can often be distinguished from a murder. Again, no one person has the unique relation to the victim of a homicide that a pregnant woman has to a fetus. So the possibility of homicide does not invite the kind of encroachments on our bodily integrity that abortion bans invite on women’s bodily integrity. The only thing comparable to them is the war on drugs.
Libertarians can believe that abortion is morally wrong and try to persuade others of their position without contradicting their commitment to a limited government. But they cannot support a legal ban on abortion without doing so. They must choose between abortion bans and a limited government.
*The Supreme Court decision of June 27th, 2022, declaring that doctors who act in good faith can’t be prosecuted just because their actions fall “outside the usual course of [medical] treatment,” has finally freed doctors to follow their best clinical judgment, based on each patient’s specific circumstances.
3 thoughts on “Libertarians: Limited Government – or Abortion Bans?”
With all the fulminating on abortion since the Dobbs ruling, it is doubly refreshing to read a column such as this. The author provides a perspective the exact like of which I have not seen, and presents it very well. Thanks!
From Daniel S.:
The author has made several errors. First, Professor Badhwar’s principal argument appears to be that libertarians who believe that a fetus has the same protectable right to life as a child should nevertheless not support abortion bans because abortion bans encourage and even facilitate intrusive and abusive behavior by the state.
But this argument proves too much. Notwithstanding that the nature of pregnancy invites special and even aggressive intrusion by the state, all state based rights enforcement power suffers from this same problem to one extent or another.
The state routinely overreaches in the name of enforcing genuine rights. One need look no further than enforcement of laws against child abuse. Child welfare agencies are notorious in their exercise of arbitrary and sometimes nearly unchecked power to harass and investigate parents on the barest of flimsy (and anonymous) allegations. My home state of New Jersey is legendary for such abuse. But surely few, if any, libertarians would argue that the propensity (almost mission) for child welfare agencies to massively overreach in dealing with the privacy and choices of parents and families is a reason not to have laws empowering the state to protect the safety of children from murder and other forms of genuine abuse.
Similarly, in some states, killing an attacker in self-defense will, nevertheless, always or nearly always get one arrested and charged with murder. States with such “tell it to the judge” types of criminal law environments are extremely difficult for folks who find themselves in life or death situations and seek only to exercise their right to lawful self-defense. Yet, it is hard to imagine a libertarian taking the position that we should not empower the state to punish murder because of a pervasive and aggressive practice of some states criminally charging folks engaged in lawful self-defense.
The answer to these and other similar overreaches is to push back on the limits of proper action by the state. Literally every power the state has to punish actual rights violations also carries with it the temptation for abuse. They cannot help themselves. But as libertarians that is exactly our mission — to relentlessly push back against those boundaries to curtail such abuses. The answer is not to choose not to recognize the enforcement of rights, but to encourage and foster legal regimes in which such overreaching is more difficult.
Badhwar makes an even greater error arguing that libertarian support of a right to life for a fetus implies that libertarians must also support bans on abortion in the case of rape. But a right to life does not imply the right to compel a woman to be an incubator. Rape is a non-consensual act. The fetus has no right to be there. Just as most libertarians would likely hold that a person who wakes up with a dialysis patient attached to their kidneys has no duty to sustain that person’s life (regardless of whether or not dialysis were available elsewhere), so, too, a pro-life libertarian could hold that a woman who is pregnant due to rape has no duty to sustain the fetus’s life against her will.
The most that might reasonably be said about abortion is that its prohibition might more strongly encourage overreaching by the state. But I am unaware of any theory of liberty whereby the choice of which rights should be protected turns on how the state might abuse its power to do so.
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