Tag Archives: abortion

Current Events, Ethical Issues, Law & Legal Philosophy, Social Criticism

Libertarians: Limited Government – or Abortion Bans?

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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. 

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*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.

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

Libertarianism and Abortion

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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.)

Current Events, Ethical Issues

Diagnosing the abortion debate

Reporting back in January 2017 showed that abortion rates have fallen to levels lower than any year since 1973, the year of the Roe v. Wade decision, and reflect about a 50% decrease in the rate from its peak in 1981. The study, conducted by the Guttmacher Institute, which supports abortion rights, cites as causal factors greater access to contraception as well as laws in many states that restrict abortion clinics or require ultrasounds. The controversial Texas bill is the most recent attempt by states to broaden restrictions by preventing abortions when “cardiac activity” can be detected. Of course, pro-life groups still ultimately want to see Roe overturned. This would mean that individual states would determine what legal restrictions, if any, would apply to people seeking and providing abortions.

Abortion rights and restrictions can pose a special challenge to a species of liberal views about when it’s permissible to interfere with a person’s liberty of action. Liberal views generally presume non-interference as a moral default and impose the burden of justification on those who would coercively restrict them. And, on some prominent liberal views, simply pointing to “the truth of the matter” won’t be sufficient to overcome this justificatory burden. On these liberal views, beliefs, values and commitments that don’t make sense to people, or for other reasons they can’t go along with, don’t satisfy the justificatory test. These “alien” restrictions would, from the point of view of these people, undermine their authority and agency. Coercion will sometimes (often!) be permissible, but only in virtue of considerations that make sense relative to their commitments.

Applying this to the long-standing abortion controversy, first, notice how easy things would be if it weren’t based on reasonable considerations. If it were flatly unreasonable to deny fetal personhood, then it would be much easier to justify laws restricting abortion. And if it were flatly unreasonable to ascribe personhood to fetuses, then there would perhaps be no accounting for such a law. But reasonable people disagree about fetal personhood. 

More: both parties to this disagreement reasonably believe that the other side is involved in imposing serious harms to the interests of others. This means that abortion law will lack authority for pro-choicers if pro-lifers have their way politically. It’s relatively obvious how this is so: most restrictions won’t make moral sense to pro-choicers. They say that the restrictions violate women’s privacy or bodily autonomy. But abortion law will also lack authority for pro-lifers when pro-choicers have their way politically. The reason is that, since pro-lifers reasonably believe that fetuses are persons with a right not to be killed, they think they have adequate justification for protecting them by imposing coercive measures that increase the costs of people killing them. In other words, pro-lifers have an intelligible rationale for rejecting laws that carve out space for people to kill other people. 

This situation, then, describes something like a moral state of nature between the two sides. We’ve failed to achieve coordination. Pro-choicers know that, even after engaging in careful and respectable reflection on the relevant moral and empirical evidence, pro-lifers won’t acknowledge the right of women to have an abortion. But this doesn’t mean that they just let pro-lifers violate women’s bodily autonomy. Pro-choicers are basically left with one option: to take up what P.F. Strawson called the objective attitude towards pro-lifers. They will see pro-lifers as a force to contend with, managed and kept at bay as best they can as they go about their affairs, but that’s different than exercising genuinely normative authority over them. 

Yet in the same way, pro-lifers know that abortion-seekers won’t acknowledge the personhood of fetuses, even after careful and respectable reflection on the relevant moral and empirical evidence. “Public reason” has run out for them, too. But this doesn’t mean that pro-lifers just let abortion providers kill children. Third-party protection is publicly justified. From the pro-life perspective, abortion seekers and providers are doing something similar to driving a car towards a person in the street they can’t see. They have reason to stop them or make them swerve. In other words, pro-lifers similarly must treat abortion-seekers as mere objects of social policy rather than people with whom they are interacting on genuinely moral terms.

The problem, then, isn’t that both sides are willing to impose their preferences, limiting the freedom of those who disagree, simply because they know they’re right. Rather, both sides are intent on protecting their freedom to protect themselves or important third-party interests. Both sides, from their respective points of view, are resisting subjugation. 

I’m at a loss to make moral headway here. Disagreement doesn’t always lead to this kind of social breakdown of reasoning and moral community. I can think of some other examples (meat eating?), but it’s relatively rare, which is a good thing. It also seems pretty isolated most of the time — thankfully, a disagreement and breakdown in this area hasn’t led to a more general breakdown of moral relations among people who are on opposite sides of the issue. Most people even have friends who disagree with them about abortion. 

In fact, I think this lends some credibility to the account of the abortion debate that I’ve offered here. It’s a case where we are forced to take the objective attitude towards our opponents because it turns out that they aren’t true moral subjects of the proposed requirements. Strawson’s participant reactive attitudes wouldn’t be appropriate since those things suggest serious culpability for violating something everyone is in on and knows better than to do.

Current Events, Ethical Issues, Toleration

Being Pro-Choice

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I’m pro-choice. If a woman wants to have an abortion, I believe it is her choice to do so and no one ought to stand in her way. I oppose abortion laws. Similarly, I believe that if I want to take an antibiotic, it is my choice to do so and no one ought to stand in my way. I oppose prescription laws. And also similarly, if someone wants to inject themselves (or swallow) Ivermectin, it is their choice and no one ought to stand in their way. In each of these cases—and all others—I believe information should be provided so that the individual in question can make an educated decision about the action in question, but I believe that they should be allowed to act on their own decision.

I said that in the cases described *and all others* they should be allowed to act on their decision. That also applies, then, to doctors who do not wish to perform abortions and doctors who do not wish to *administer a patient ivermectin (or any other medicine). They ought to be able to act on their choices just as the patients in question ought to be able to. Yet, at least one judge in Ohio has thought it appropriate to require hospitals (admittedly, not specific doctors) to administer a medication they oppose using for a patient (see this). And, as I assume most readers, know, Texas now has a law in place that makes it much harder for doctors to perform abortions on patients who want it. To be clear: even if both patient and doctor agree that the abortion is the best course of action and are willing participants, the doctor is likely to face legal repercussions if the woman is more than 6 weeks pregnant and any private citizen decides to sue. (See this and this.)

What we have in both these cases is a situation where the freedom of some to live in a world where the actions of others are limited—e.g., to not give a patient a drug they oppose using or to help a woman have an abortion—is thought to outweigh the freedom of those others to live their lives as they see fit. The freedom—really, its just the preferences—legally outweigh those of others. To think this is a deep moral debate strikes me as misguided. Abortion is a rightly contentious issue and, in my view, its moral permissibility can only really be resolved by determining whether or not the fetus has a moral status on par with the mother’s. The people behind the Texas law—and those that would sue medical professionals because of it—do not seem interested in trying to discuss that question at all. They seem simply to want to impose their views on others. Those wanting people to be able to use Ivermectin in Butler County, Ohio, similarly seem simply to want to impose their view—or that of the patient—on medical professionals. In both sorts of cases, we have a pernicious form of moralism at play. (See this and this.)

I assume there will always be doctors unwilling to perform abortions. They should be free to act on their preferences. I assume—and hope—there will also always be doctors willing to perform abortions. They, too, should be able to act on their choices (when they have a patient that so chooses). A patient and a doctor coming to an informed agreement should not be interfered with. The same holds for a doctor willing to *administer a patient Ivermectin when the patient wants such. And a doctor unwilling to administer it. For that matter, the same is true (or so I believe) for a doctor and patient wishing to use a Mercitron on a patient that wants it. (See this). Unfortunately, this is not well accepted.

* 9/5, replaced “inject” or “injection,” fixing as needed to accommodate.