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Accommodating reality

I suspect the constant trench warfare in American politics over abortion is somewhat mystifying to our overseas observers, and I think abortion poses some real philosophical problems for libertarians stemming from the unanswerable question of when a “fetus” becomes a “person.” Those issues aside, this David Frum blog entry is full of wisdom, not only on abortion, but on the dangers of ideological absolutism in matters political and social.

Now let me say right off: I am not pro-life. I think abortion ought to be legal for the first 12 weeks of a pregnancy and available to protect the health of the mother during the weeks thereafter. I don’t see this as a matter of fundamental human rights, so much as one of accommodating reality. I can’t defend Roe v. Wade as a legal decision, and I would be very glad to see abortion become much more rare than it now, but if the law attempts to suppress abortion entirely, it is the law that will fail, rather than abortion that will disappear. Please don’t email me about this: I have thought about this issue just as hard as you have, and I’m not going to change my mind.

But precisely because I believe in accommodating the realities of abortion, I think those on the pro-abortion side need to acknowledge that the no-concessions approach of the organized abortion lobby is catastrophically mistaken. Abortion rights would be much more secure if they were confined within reasonable limits that squared better with the conscience of the nation.


For that reason, I for one welcome the ban on partial-birth abortion – not only because of the grisliness of the procedure, but even more for exactly the reason that so offends the procedure’s defenders: precisely because it is a way to back into greater restrictions on abortion in the later stages of pregnancy. NOW and NARAL should understand: These restrictions are not the first steps toward a total ban on abortion. On the contrary: They are the first steps toward avoiding such a ban.

While I am not 100% in agreement with this entry, I am about 95% comfortable with it. In politics, as in most of the rest of real life, refusal to accommodate reality is a pretty good guarantee of failure. Arguments about the ideal libertarian society are all well and good (and necessary), but attempting to make the jump straight to that society without admitting any intermediate steps is sure route to failure. This is the sin of the American Libertarian Party, and explains why, even though majorities of Americans agree broadly with its principles, its electoral showing is generally somewhere south of pathetic.

This is heresy, I know, in libertarian precincts. But those same precincts need to stop running from the responsibilities of success, and start thinking very seriously about what compromises to make, and when, and how, if they are ever to make a real difference in society at large. Its all very well to natter on about how taxation is theft, or about how we have an absolute right to own any weapons we want, but if you take this as license to refuse to accept compromises on tax and gun policy that represent an improvement on the status quo ante, however imperfect, then you have consigned yourself to permanent irrelevance and impotence.

Many libertarians, I think, like the outsider pose, and the irresponsibility that comes with it, too much to actually craft real-world solutions and take responsibility for their downsides and inintended consequences. Its always easy to criticize and carp from the sidelines; it is much harder to get in the game.

If libertarians aren’t willing to do the dirty work necessary to make a difference in society at large by engaging with and compromising with our opponents, then we should just admit our irrelevance and powerlessness to advance what we profess to be our deepest values.

87 comments to Accommodating reality

  • Julian Morrison

    Abortion rights would be much more secure if they were confined within reasonable limits that squared better with the conscience of the nation.

    Just like gun rights are secure having been “confined within reasonable limits”?

  • The whole abortion discussion is so dishonest and relies on an absolute fudge. In extremis there is the absurd position of those who support partial-birth abortion and would have us believe that life doesn’t commence until birth, a position no less absurd than the notion that life commences at conception. But those “Libertarians” who see abortion rights as equivalent to, say, gun rights are guilty of a deliberate fudge in ignoring the fact that an abortion involves the destruction, literally, of an embryonic life. It is one thing to say that greater availability of abortion has contributed to greater freedom for some women, it is quite another to claim that this is consistent with greater freedom for all.

    I agree that absolutism in this discussion is tactically wrong and support Frum’s suggestion of legal abortion up to, say, 12 weeks but I think that this can be grounded in a clear philosophy and not a fudge. The way to do this is to accept two principles.

    1) A person has a right not to be killed

    2) No woman should be compelled to gestate a foetus against her will.

    This would suggest that it should be legal to remove a foetus from a womb but not kill it. If the foetus is not viable (first trimester), it will die: The woman had withdrawn her consent to providing a womb for it. If the foetus is viable (later), it will live and will still be the mother’s responsibility, she can always give it up for adoption. Thus you can guarantee that a pregnancy be terminated but not that the foetus will be destroyed.

  • Given Frum’s statements as cited, he’s far more pro-life than otherwise, for which I commend him. Moreover, I think he’s grasped the practical legal aspects of the matter with precision.

    Brazil, an overwhelmingly Catholic country which treats abortion as murder — that’s written into its constitution — estimates that its women undergo 1,000,000 abortions each year. Clearly, there are some things the law is powerless to erase.

    See also this.

  • Julian: Gun rights and abortion rights are not equivalent. The reason why “reasonable limits” must apply is because there are two parties involved, the pregnant woman and the foetus. If you take the case at either end of the pregnancy: at the beginning, a fertilised egg is just a bunch of cells, it would be an intolerable restriction on the woman’s freedom to prevent her from removing this bunch of cells (assuming it were possible – this is just a philosophical discussion). At the other end you have a newborn baby, it goes without saying that it is an intolerable restriction on that baby’s freedom to kill him or her. The trick is in finding the appropriate point between those two extremes, that is a “limit”. The argument shouldn’t be between those who say that there should be no limits (at either end) but about at what point in the pregnancy does the foetus become a “person”.

  • JH

    Blah blah blah…let’s move on to more serious matters.What’s this new scandal around Prince Charles that the press can’t tell about?Is it the gay rape thing,or something new entirely?Somebody over there in Britain must have heard something ,surely;-)*

    *OK,I kid…

  • Not to try dousing a raging fire with gasoline or anything, but even though I have never believed in the efficacy or desirability of anti-abortion laws, I nevertheless find it very hard to accept the phrase “a woman’s right to choose.” No. It is a woman’s decision to kill. The “right to choose” only seems valid and properly exercised prior to conception. Thereafter, one’s “choice” is whether or not to kill a separate, albeit dependent, human life.

    There may be good, defensible reasons for any particular abortion. It may be wisest for criminal law to stay as far away from the topic of abortion as possible. But the ending of a human life should never be a cause for celebration or cheering, as so often seems to be the case when “abortion rights” are the subject of debate, or the object of political action. It seems to me that the decision to end a human life must always be difficult and painful, even to the point of agony; the decision to kill must leave permanent scars. To the extent that it is not, or does not, this cheapens human life.

    Put me down as one of those oddball libertarians who believe abortion is none of the state’s business, while yet believing that every civil means possible ought to be employed to minimize the practice. Just remember, where life is cheap, human rights are unaffordable.

  • Frank McGahon offers a view of abortion based on a balance of opposing “rights.” I wonder if he has actually read Roe v. Wade which, while not espousing his theory, nevertheless arrives at much the same balanced compromise that his theory entails: before the point of viability a woman’s right to do whatever she pleases, secure in her privacy, trumps the state’s interest in protecting human life; after the point of viability, the state’s interest grows to the point of predominance.

  • Julian Morrison

    Self ownership is paramount. The mother has the right to evict the baby just as she’d have the right to evict a squatter in her house. Removal of life support is not murder, if it’s your life support mechanism, and there’s no contract. Sex is not a contract. Regardless of whether the baby is “alive” or “human”, it mayn’t make a slave of its mother.

    If you’re a Libertarian and dislike abortion, fund research for glass wombs, inter-womb baby transplant, or the suchlike. Eviction is the mother’s right, but solutions could perhaps be found that prevent it being fatal to the baby.

  • I haven’t actually read Roe vs. Wade and I didn’t necessarily intend to frame it as a case of opposing rights. I am not a big fan of “rights” (which connote a presumably government guaranteed entitlement) compared to freedoms (which are simply asserted). I think that the notion that one can balance opposing rights is a bit of a canard (as in discussions about smoking bans)

    My second comment made reference to the opposing rights argument to try and make clear the difference between abortion rights and gun rights. My first comment intended to offer a different way of framing it (instead of opposing rights) which is that it would be never be legal to deliberately kill a foetus, just to remove it. This way viability either happens or it doesn’t and nobody has to decide where the line is. The woman retains the right to refuse consent to use of her womb but doesn’t obtain the right to destroy the foetus.

    The fudge is to draw an artificial distinction between killing a person after birth (when the state presumably would get involved) and killing an unborn (and probably viable) person. If this intentional killing is wrong but the state shouldn’t get involved, why should the state get involved for “conventional” homicide?

  • zack mollusc

    How about the anti-abortionists paying the reluctant mothers to gestate and deliver, then adopting and raising the child?

    If they can’t/won’t then why should they tell someone else they must?

  • Julian: that is precisely my point. The mother should have a right to “evict” the foetus but notto kill it. Unfortunately current abortion practice involves deliberate destruction of the foetus and not simple removal.

  • Julian Morrison says, “Self ownership is paramount. The mother has the right to evict the baby just as she’d have the right to evict a squatter in her house.”

    The analogy between abortion and the eviction of trespassers has never really worked for me; as far as we know, there is no intent on the part of a fetus to trespass or to injure the mother. While sex may not establish a contract, consensual sex at least seems to create a hostage. To take a hostage, yet reserve the “right” to “evict” that hostage into certain death in a hostile environment seems like a real perversion of the law, if you ask me, to say nothing of justice.

    Beyond trying to find the snug-fitting shoe in our analogical gropings, it is also important to ask the question: if a homeowner did evict a squatter into hostile elements and death, should that act be without social consequence? Would you think well of someone who had the reputation for doing that? Would you trust him or her? Would you wish to associate or have your children associate with someone who was capable of taking that kind of action?

    The problem with the abortion-rights movement today, as I see it (and to which, RC Dean appears to be alluding), is that its supporters so often seem to want a stainless, no-fault sort of “right to choose,” even when that choice extinguishes a life. Many associated with the movement have sought to demonize and marginalize those who simply point out that abortion ends a human life, however tiny and embryonic. This goes far beyond the upholding of the principles of choice or self-ownership, and often gives the impression that the abortion movement is some kind of death cult — an impression that fundamentalists of many religions exploit in their clamoring for laws such as the recently enacted partial-birth abortion ban.

    Julian also says, “If you’re a Libertarian and dislike abortion, fund research for glass wombs, inter-womb baby transplant, or the suchlike.”

    That would certainly be one approach. Another would be to invest in the development of better, surer, more automatic methods of contraception — reversible sterilization, for example. Another would be to engage in the kind of propaganda campaigns against casual sex that are now waged against drugs and smoking. As laughable as some of those latter efforts are, they have had the effect of putting a stigma upon (or, at least, taking the glamour away from) certain kinds of activities. Another approach might be to take steps to strengthen the institution of family — to lower taxes, for instance, so parents wouldn’t have to work so hard outside the home and could be more of a stabilizing presence in the lives of their children. In truth, there are many possible approaches to the problem. But let’s not lose sight of the fact that we are talking about a problem, here. Human life is ended by abortion procedures, and that seems as problematic as the potential diversion of a woman’s life into the slavery of child-bearing and rearing.

  • ” Its all very well to natter on about how taxation is theft, or about how we have an absolute right to own any weapons we want, but if you take this as license to refuse to accept compromises on tax and gun policy that represent an improvement on the status quo ante, however imperfect, then you have consigned yourself to permanent irrelevance and impotence. ”

    Feeling all relevant and potent are we?

  • Abby

    Much of the rancor of the abortion debate would be lessened if women were allowed to sell their parental rights.

    If that were the case, then there would be few unwanted children and few childless couples. Women would have an incentive to carry to term, and couples wouldn’t have to endure agonizing years of waiting.

    This canard that to do so would sanction the “selling” of babies is ludicrous. The intrusive laws against the practice have caused a great deal of pointless heartache in our society.

  • snide

    The reason I loath commenters like John T. Kennady is that all he is doing is making noises and not actually conveying what the fuck he means. What does that remark mean????

  • Julian: Just like gun rights are secure having been “confined within reasonable limits”?

    Yes, like not tolerating people shooting their guns off across my property or into the air whilst they are walking down the High Street.

  • Also the eviction analogue is weak because the mother is responsible (as is the father) for the creation of a new agent. Does the mother have the right to ‘evict’ a 6 month old child from her house because it cries too much and leave it to die on a nearby hill top?

  • “The mother has the right to evict the baby just as she’d have the right to evict a squatter in her house. Removal of life support is not murder, if it’s your life support mechanism, and there’s no contract. Sex is not a contract. Regardless of whether the baby is “alive” or “human”, it mayn’t make a slave of its mother.”

    Julian, are you serious? Normally your observations are both astute and helpful but what you have posted above is just insane contemptible drivel.

    Not even Kodiak is that barmy!

  • David,

    You may not like what Julian says but your charge of insane contemptible drivel is a little over the top. Julian hasn’t just thought this up, this argument was first and famously advanced by the extremely emminent philosopher Judith Jarvis Thompson. Her full argument is very clever and (I think) convincing. Julian’s (admittedly crass) rendering of it is taken almost word for word from Rothbard’s ‘Ethics of Liberty’. Rothbard credits Thompson for this idea and went on to present it in his typically ‘bracing’ style. What is interesting is to read how Rothbard’s later Paleo-libertarian chums like Hans-Hermann Hoppe, Lew Rockwell and others who do not like abortion at all have tried to talk their way out of this little embarrasment. In the introduction to the second edition of ‘Ethics of Liberty’ Hoppe wrote the introduction and spent quite some time trying (and failing) to explain that Rothbard didn’t really mean it.

  • David: I think you are a little harsh on Julian. It is not unreasonable to assume that a woman who wishes to have an abortion considers the foetus as a kind of squatter, however distasteful the rest of us might find this image.

    Perry: The woman’s “right to evict” is not about absolving oneself of responsibility, just her free choice to deny use of her womb. Denying her that choice is inconsistent with self-ownership. “Foetus removal” shouldn’t assume that the foetus would be left to die but the same effort to keep it alive should be expended as would for any other person. I imagine that she would still have to bear the healthcare costs of the premature baby until adoptive parents are found. This procedure would probably act as a disincentive for those women “in two minds” about the abortion.

  • Paul,

    Of course it just had to be Murray friggin’ Rothbard. Who else could have cooked this up?

    Frank,

    I sincerely hope that I have not hurt Julian’s feelings as that was not my intention. But I did want to make it very clear that I wholly reject his assertions. To compare a baby to a squatter is tantamount to calling it a parasite.

    That isn’t ethics, it’s pure casuistry.

    And, for the record, I am not opposed to abortion per se but I happen to agree with R.C. Dean and David Frum on partial-birth abortion.

  • David,

    “Of course it just had to be Murray friggin’ Rothbard. Who else could have cooked this up?”

    You might very well think that; I couldn’t possibly comment ;-)

    “To compare a baby to a squatter is tantamount to calling it a parasite.” David Carr.

    “A parasite lying unbidden in its mothers womb” Murray Rothbard.

  • Julian Morrison

    Hmm. I didn’t copy Rothbard, but I did repeat the argument that convinced me, and it may have been Rothbard’s.

    Any way, I basicaly find it unanswerable that you have the moral right to refuse (necessary, life-sustaining) housing to a baby in the same way that you have the right to refuse (necessary, life-sustaining) food to a beggar, or shelter to a squatter. If you live on my property and cannot survive off it, if you have no contract with me to remain, then you survive at my whim, and have no right to prevent me evicting you.

    Note that I’m treating the computation of ethical rights as seperate from moral rights-and-wrongs. Throwing a squatter out onto the street to die is a dastardly deed. It’s merely not one which rights-law can validly prevent.

  • The accurate Rothbard quotation is in fact:

    “What human has the right to remain, unbidden, as an unwanted parasite within some other human being’s body?”

    I was trying to write from memory above.

  • Julian Morrison

    Perry asks: Does the mother have the right to ‘evict’ a 6 month old child from her house because it cries too much and leave it to die on a nearby hill top?

    No because the child is seperably capable of survival, so the mother would have to find a new adoptive parent first. Since the right to evict can be excercised without killing, it ought to be.

  • Julian,

    I didn’t think that you had copied Rothbard but your position was certainly Rothbardesque, could this be the argument that you read:

    “What the mother is doing in an abortion is causing an unwanted entity within her body to be ejected from it: If the fetus dies, this does not rebut the point that no being has a right to live, unbidden, as a parasite within or upon some person’s body.

    The common retort that the mother either originally wanted or at least was responsible for placing the fetus within her body is, again, beside the point. Even in the stronger case where the mother originally wanted the child, the mother, as the property owner in her own body, has the right to change her mind and to eject it.”

    This is Rothbard in ‘For a New Liberty’, he says much the same thing in even stronger language in his later ‘Ethics of Liberty’ but I don’t have that to hand.

    When I first read it I was as appalled as David Carr, it is language almost calculated to cause offence, however after reading the actual philosophical paper by J. J. Thompson on which it is based I thought the point much stronger. My own view of abortion is that the feminists have it right in their phrase ‘As early as possible but as late as is necessary’.

  • “The common retort that the mother either originally wanted or at least was responsible for placing the fetus within her body is, again, beside the point.”

    So what if I knowingly enter into a contract with someone and then decide I would rather not stick to it?

    I think both you and Julian have conflated individuality with simple fecklessness.

    And the more I learn about the late Mr.Rothbard the more strongly I suspect that he was suffering from some manner of mental illness.

  • It ain’t the foetus’ choice to be a ‘squatter’.

  • ” My own view of abortion is that the feminists have it right in their phrase ‘As early as possible but as late as is necessary’”

    I’m sorry Paul but that is just simple weaselling. What if “as late as necessary” is after the birth?

    David: The thing is, a baby is a kind of (unwitting) parasite (and I say that as the joint creator of such a “parasite” in my wife’s womb!) in so far as it literally “sucks the lifeblood” from the mother. We would all like to think that every woman treasured her baby but it is worth framing the debate this way: A woman who would abort necessarily considers her foetus an unwanted “parasite”. It might concentrate the mind better than all the typical evasions about “difficult choices” etc. (see James’ first comment)

  • none

    Several posters flirt with the notion of fetal “viability,” as it is called in U.S. law. What, precisely, does viability mean? What do the anti-abortion people want it to mean? Does Terri Schiavo possess it? Have you ever been into a neonatal ICU, and had a look at what some overeducated idiots in the medical profession consider viable? Ever had a look at one of these formerly “viable” fetuses and their caretakers (parents), say, 20 years down the road? Yes, this reasoning perches atop a slippery slope; but don’t be lulled into thinking that “viability” is a great watershed that solves all ethical and practical problems.

    On another note:

    “Backers of the legislation, including Bush, vowed to mount a vigorous defense of the law. Justice Department attorney Anthony Coppolino declined comment, but released a statement from Attorney General John Ashcroft.

    “The Justice Department ‘will continue to devote all resources necessary to defend the law prohibiting partial-birth abortions,’ the statement said.”

    Christ. I wonder how much that’s going to cost.

    And oh yes. I am not pro-choice. I am pro-abortion. It’s a dandy method of birth control, and more people ought to avail themselves of it.

  • toolkien

    First off I’m ‘barmy’ on this subject so a warning has been issued.

    I have a hard time reconciling personal responsibility of the individual (presumably for adults) and how that is to translate into collective responsibilities for children. The great debate on abortion simply reduces to when is life, preservable by the State, created? First trimester? That is an arbitrary line. Pre- versus post-birth? That is simply a mechanical change, in versus out.

    When the baby is born, it is still dependent. To say that it is vested with rights, enforcable by the State, while it is still dependent, creates a burden for the State (and all of us as taxpayers). What then is the difference between a dependent child and a dependent adult? Guilty of having made a shambles of their life? Where does investing a dependent child with rights jibe with the notion of liberty a la Rand that no person is subject to the claims of another? Does that just apply to adults and not children?

    The solution is that the child is the property of the parents until some relatively arbitrary age is reached, when it is vested with rights to enforced by the State, and until then is the property of, sheltered under their property rights ‘umbrella’. Yes, this leads to “You mean the parent can torture their children?” and other outlier examples, and “Yes, that is what I mean.” The actual number of such cases are exceedingly rare to even comment on, and I certainly would encourage stimulation of cultural paradigms that condemned such behaviors of torture and extreme neglect.

    In all the creation of the child stems from the value judgement of the parents to bring it into existence, and no other person should be held responsible for it, and the child exists under the parents’ value judgements until it is deemed old enough to take self possession of itself and vestable with unalienable rights by the State.

  • Julian Morrison

    toolkien: thinking creatures are self-owners, and that includes children.

  • Frank,

    “We would all like to think that every woman treasured her baby but it is worth framing the debate this way”

    I agree. It matters not whether the parents treasure the infant. It matters that they are obliged to maintain it. In the same way that I am obliged to abide by the terms of a contract.

    The infant simply cannot maintain itself and therefore responsibility must fall on the people who created it and gave it life. Who else should shoulder this burden?

    Of course, Julian will argue that there is no burden and that a refusal to maintain is not the same as killing. But with a baby it is the same as killing. If not, then the mother could simply dump the infant in a rubbish skip, leave it to freeze to death and claim that she was merely exercising her ‘ethical rights’. Not all intuition is false, Frank.

  • Julian Morrison

    David Carr: I argued arlier that refusal to maintain a seperably viable child was a parent’s right – but that because it can be excercised without killing (by putting the child up for adoption) then it should be. There is no burden to keep the child, but neither may the parent capriciously do murder when alternatives exist.

  • Julian,

    “but neither may the parent capriciously do murder when alternatives exist.”

    No, the parent may not do murder. End of.

    But I do agree that there is nothing wrong with putting a child up for adoption.

  • “neither may the parent capriciously do murder when alternatives exist.”

    But if there are no alternatives, a parent may capriciously do murder?

    It would seem to me that if you admit that it’s murder then the question of alternatives is moot, the injunction against murder trumps the personal convenience/property argument.

    Of course, if the fetus is a trespasser or parasite, then its not murder to kill it. But waiting for it to come out of the womb before saying “now there is an injunction against murder because this is now a person/human” seems ridiculously arbitrary, especially since medical technology allows viability well before 9 months.

    Technology may make the point moot in the future, if artificial wombs can be created. Then all abortions would be murder, then, no? Since there is always a life-affirming technological solution/alternative…

  • toolkien

    toolkien: thinking creatures are self-owners, and that includes children.

    So a thinking adult who makes a shambles of their life through poor choices are included as well? The dividing line simply is ‘innocence’ of the child versus ‘guilt’ of the adult which should be beyond the function of a disinterested State. The essence is still the same, creating a burden for the State where one shouldn’t exist. There is no boundary to private support for unwanted children or associations who advocate proper treatment of children.

    **************************************

    The notion that there is a contract between parent and child, presumably enforcable by the State, is in error as the child is not capable of contracting on such a level. When it is capable it will have inalienable rights vested at that point, and the burden by the State is created at the same time the individual is burdened with their responsibilities under the same Social Contract. Also, the assumption seems to be that when the parent fails to uphold their part of the contract, it is shiftable to the State and the taxpayers. This of course is the logic used to expand the Social Contract to its ponderous dimensions legitimizing transfers of any nature.

  • Julian Morrison

    Brian: Technology may make the point moot in the future, if artificial wombs can be created. Then all abortions would be murder, then, no? Since there is always a life-affirming technological solution/alternative…

    Precisely. Evicting the baby is a right, killing is not, except where it’s an unavoidable side effect of eviction.

  • Brian Doss writes:

    “Technology may make the point moot in the future, if artificial wombs can be created. Then all abortions would be murder, then, no? Since there is always a life-affirming technological solution/alternative…”

    This does not solve the problem at all – who is going to pay for the artificial womb; the taxpayer, the mother? Failure to pay for artificial wombs is not murder, nor is allowing childern we don’t care for to starve to death. If it were we would all be guilty of murdering the millions who die of starvation in Africa and other poor places.

    In a libertarian social order such practical problems would be mitigated by the existence of a free market in babies of course.

  • Yes, Dr. Rothbard did indeed make that “parasite” argument. Legally speaking, he was within the property-rights tradition and his argument was consistent with it. However, for the argument to have force, he had to efface an important difference between a baby in the womb and other kinds of parasites. For there’s another tradition that ought to get some consideration here:

    Does a civilized people inflict costs on helpless third parties — costs the third party had no part of the decision to incur and has no ability to consent to?

    This is what passes through my mind every time someone raises the “rape exception.” Killing an innocent bystander seems to me to be unjustified by the crime of rape. If there’s any exception whatsoever, it would be the “lifeboat” exception: though two currently live, one must kill the other or both will die. How often is this the reason for an abortion — at any stage of gestation?

    Of course, none of this will have weight with someone who considers a fetus in the womb to be other than human.

  • “Evicting the baby is a right…”

    A right? Is it? Why?

  • Toolkien: I think you are making an error of logic in assuming that responsibility for dependent children must fall on the state. Anyone who creates a child is responsible for it. Another error is to assume that responsibility for children created is the same as “property”. Parents never “own” their children.

    David: If a woman wishes to terminate her pregnancy it is important that there be clarity about what it is happening and not ambiguity. I think we should be clear what we mean, I infer that you have an image of a woman getting pregnant and changing her mind later. I agree that would be “feckless”, it should be quite clear to her what is happening and it is quite wrong to offer her comforting evasions about the procedure. What I have in mind is a situation whereby a woman was impregnated either without her consent (rape) or unintentionally and that the foetus is (albeit unwittingly) “trespassing”. In such a situation the state should not find itself compelling the woman to gestate the foetus against her will. She should not have the right to kill the foetus but she should have the right to have it removed from her body on the understanding that she (and the father) are responsible for the premature baby. In practice this would act as a deterrent to abortions.

  • toolkien

    “Evicting the baby is a right…”

    A right? Is it? Why?

    Since it would require State force to stop it, shouldn’t the question be “why isn’t it a right” and require an explanation from that side first?

  • Ken

    I would say that any reasonable definition of “person” would have to include “has a brain”. When you get right down to it, the brain is the person; the rest of the body is there to feed the brain, provide sensory input, and do its bidding.

    Thus, fetuses near birth and protected by a “partial birth abortion” ban would clearly qualify, while beginning embryos that might be used as a source of stem cells or targeted by a “morning after” pill would clearly not qualify. At stages where a brain is present, however small, the creature ought to be protected by the same principle that forbids us to knock down a building that might be inhabited.

    The question of whether a mother ought to have a right to evict her fetus is one we’re going to hopefully have to confront sooner or later. It’s the same as the question of whether an owner of a habitat in space has the right to evict deadbeat tenants through the air lock.

  • David: The reason evicting the foetus is a “right” (One hopefully not exercised often) is that a woman should not be compelled to gestate a baby against her will.

    Francis: You assume that an argument is marshalled to support deliberate killing. You are quite right to note that a foetus created by a rape shouldn’t be “punished” for its father’s crime. But the object is not to “punish” the foetus, rather that the woman involved has no obligation to sustain the rapist’s offspring and has the right to withdraw the use of her womb.

  • “Since it would require State force to stop it, shouldn’t the question be “why isn’t it a right” and require an explanation from that side first?”

    Oh well then, in that case I have a right to commit murder.

    “The reason evicting the foetus is a “right” (One hopefully not exercised often)”

    If something is a right it can be exercised as much and as often as the bearer of that right pleases. Otherwise it is not a right at all but a mere licence. We do not hope that liberty is a right that will ‘not be exercised often’.

    Sorry but isn’t this all backarsewards? A baby is sufficiently morally culpabale to be considered a ‘parasite’ but an adult woman must always be blameless – a fancy-free creature of caprice. I think somebody has a bad case of JohnLennonitis.

    Look chaps, as I said above I am not against abortion per se but, thus far, the arguments made in its favour have ranged from weak to demented. It’s almost enough to push me into the pro-life camp.

  • David: I am perplexed that you say “I am not against abortion per se”. You have assembled a pretty good argument against it.

    I am not actually arguing for abortion per se, but trying to offer some sort of consistent philosophy. It seems to me that there is far too much obfuscation in this area and because abortion offers greater freedom to some women people prefer to overlook the fact that it involves deliberate killing of persons.

  • toolkien

    I would say that any reasonable definition of “person” would have to include “has a brain”. When you get right down to it, the brain is the person; the rest of the body is there to feed the brain, provide sensory input, and do its bidding.

    Then the brain has rights, not the individual (and without getting too semantic, that is the basic meaning of ‘individual’ in that it is not subdividable). Also other sentient creatures have brains for which the same rights are not extended, so I assume you mean a human brain.

    Thus, fetuses near birth and protected by a “partial birth abortion” ban would clearly qualify, while beginning embryos that might be used as a source of stem cells or targeted by a “morning after” pill would clearly not qualify. At stages where a brain is present, however small, the creature ought to be protected by the same principle that forbids us to knock down a building that might be inhabited.

    And in the case where the fetus naturally aborts (or near aborting due to complications). What burden does the parent have (much less the State) in preserving the fetus. It has a brain, no matter how small, vested with rights, and the parent consequently has obligations to do whatever she can to preserve it. But of course there seems to be a sliding scale involved as to just how ‘preservable’ the life is in trying to determine when to make a Public Law. Ultimately that is, and will remain, the question, when is it preservable by the State. At all other times it is a private matter of the individual.

  • The reason the right (to evict) may not be exercised too often is because it there is a significant cost involved, i.e. maintenance of a very premature baby.

  • David writes:

    “Look chaps, as I said above I am not against abortion per se but, thus far, the arguments made in its favour have ranged from weak to demented. It’s almost enough to push me into the pro-life camp.”

    It can seem like this. Abortion is a notoriously baffling philosophical conundrum and I confess that I have changed my mind on this subject several times. We are fortunate in Britain to have a relatively stable consensus on the matter and it never arises as a significant philosophical football unlike in the US where they are murdering and executing each other over this.

    The best we can do is to keep up the process of conjecture and refutation in the hope that we can move towards the truth (or at least a social consensus on the matter which is probably more valuable in terms of peace and liberty).

    Many philosophical analogies can seem demented when raised in discussion and it is always best to try to formulate putative comparisons as close to genuine circumstances as possible. Inflammatory rhetoric on this issue is most inadvisable which is why Rothbard is wrong to put things the way he does.

  • toolkien

    “Since it would require State force to stop it, shouldn’t the question be “why isn’t it a right” and require an explanation from that side first?”

    Oh well then, in that case I have a right to commit murder.

    But that is part of the basic function of the State’s existence in the first place, to provide the necessary force against those who have harmed another person’s life or property, and is the legitimate curbing of an individual’s capacity to do as they please. A right should not be defined as something the State gives, but what a person is at liberty to do, bounded by that which is not allowed by contract (in other words the Social Contract to honor another’s life and property). That is the active removal of a person’s capacity to do as they please by the State and gives it its legitimacy.

    But it only applies to the people who are intellectually capable to contract away their use of force to the State in the first place. Then the State is bound to use Force against those who have harmed you, except in the case of self-defense, in which case you are allowed to use your Force (unfortunately a right that is disappearing). That is the basic issue, when is a child, in and of itself, regarded by the State as an entity to which the State (and we whom it represents) is obligated, and when is it property of the parent? When is that line drawn? That will determine when the action is a right of the parent and when it is murder. That is the line that no two people seem to agree categorically. I deem that you want to extend rights under the Social Contract (defined above) to dependent children and I don’t.

  • Frank,

    Well, I agree with Paul. The abortion issue is a nightmare from a philosophical point of view and I am as glad as he is that it isn’t a ‘hot button’ issue here in the UK.

    Truth be told, I am as muddled as anybody and the best I can do is to declare that I stand by the sentiments expressed in the original post, though perhaps not for reasons which would bear up under any sustained scrutiny.

  • toolkien

    Look chaps, as I said above I am not against abortion per se but, thus far, the arguments made in its favour have ranged from weak to demented. It’s almost enough to push me into the pro-life camp.

    If it makes any difference at all I’d prefer that children, once born, are given a chance to live. In specific circumstances, I can see myself making voluntary sacrifices for children who are not mine. But to make it a State issue forces you to share in a burden which arises from my set of value judgements that doesn’t directly involve our lives or property. The issue is trying to separate my preferences and my value judgements from something that rises to the level of State involvement. If I say that the State shall protect and preserve no matter what, it puts us all at the mercy of circumstances beyond our control. I can choose to mitigate the consequences of others poor behavior but I won’t force someone else to. Of course all of this is still based on when, and how, a child is vested with rights of their own by the State. We don’t agree there at the root.

  • I can’t say that I’m a libertarian as such, but I did find this discussion interesting. I’ve been thinking about this issue a lot lately and have sort of come to the conclusion that science and society have agreed on a definition of “brain death” therefore, there should be a similar definition of “brain life”.

    Life begins when the brain begins to function. And, since this is life and it can be no other than human life, it must be afforded all the rights that other human life is afforded.

  • Ken

    “Then the brain has rights, not the individual (and without getting too semantic, that is the basic meaning of ‘individual’ in that it is not subdividable). Also other sentient creatures have brains for which the same rights are not extended, so I assume you mean a human brain.”

    The brain is the individual. And yes, I mean a human brain.

    “And in the case where the fetus naturally aborts (or near aborting due to complications). What burden does the parent have (much less the State) in preserving the fetus. It has a brain, no matter how small, vested with rights, and the parent consequently has obligations to do whatever she can to preserve it.”

    No one has an obligation to do the impossible. Plus, a positive obligation to rescue something that might be a person can reasonably be different from a negative obligation not to kill something that might be a person.

    “But of course there seems to be a sliding scale involved as to just how ‘preservable’ the life is in trying to determine when to make a Public Law. Ultimately that is, and will remain, the question, when is it preservable by the State. At all other
    times it is a private matter of the individual.”

    The State imposes a negative obligation not to kill in most cases, but imposes a positive obligation to rescue in comparatively few cases. We can extend the former without extending the latter.

  • Dan McWiggins

    I admit to also having changed my mind about abortion several times. I have finally reached the opinion that I, as a man, should not opine on the rules governing it. It is a both a viscerally and intellectually wrenching topic which should be left up to women to decide. They are the ones who understand it best and they have to deal with the vast majority of the consequences either way.

    While I admit that I’m dodging the question, I will say that society as a whole in the US could do much more to prevent abortions without having recourse to the law. As an example, we could start with a serious public relations campaign heavily promoting adoption as the admirable and most socially responsible choice for unwed mothers. There are large numbers of decent and responsible people in this country who want to raise children but who can neither produce their own nor meet the criteria for adoption. Answering this need seems a much better outcome than either abortion or the retention of the child by an unwed, and most likely impoverished, mother.

    The pragmatic solution is this: match the unmet demand for babies to the unwanted oversupply. While it doesn’t eliminate the moral problem posed by abortion, it diminishes the abortion numbers to the point of relative inconsequentiality. This solution won’t answer the absolutists, of course, but it could remove the issue as a frequent topic of political discourse, something that would also benefit everyone.

  • Michael

    While I would normally applaud the decision to ban partial birth abortions, I’m strongly against this law because it’s a federal intrusion into state powers.
    It is entirely possible to ban partial birth abortions at the state level, there is no benifit into unanimity amoung the states, in general legal code should be writen by the legislative body as close as practical to the individual, so this should be state, not federal, law.

    (Note for anyone who didn’t know: In the US, theft and murder are both criminal at the state level, and doctors are usually licensed primarily at the state level.)

  • Julian: I agree that to ‘evict’ a child in such a matter that they are cared for (i.e. adoption) is acceptable, but if there is no way to do that, then eviction is not a moral option at all, because the parents cannot be absolved of responsibility for the child unless someone else takes that burden from them. There is no right to destroy the child and therefore there is at best only a conditional right to ‘evict’ the child.

    And by the way good people… this is perhaps the most mature and sensible debate on this most emotive and difficult of subjects I have seen in quite a while. The Samizdata.net commentariat does us proud. I am truly impressed.

  • I care nothing really for state’s rights Michael. The only rights that matters are human rights and only humans have those, not states.

  • Julian Morrison

    Seems to me that this is one issue that won’t get sorted out fully until tech makes it moot. Which it will, soon enough. The same tech that can grow a human ear on a mouse could plenty concievably grow a human womb in a pig.

    Paul Coulam was right to bring up the cost issue; I’m unsure of the answer to that theoretitically. Practically though, you can be certain that there will be plenty of people willing to contribute even if the parents are not. Everyone who sends money to pro life organizations could and probably would send money instead to “keep ‘em alive” charities.

  • Fatmouse

    Wait, I’ve got the perfect solution – abortion will be legal, but requires a nine month waiting period.

    Also, for you fanatical pro-abortion folks, is it acceptable for a woman to give birth while standing over a wood chipper?

  • David, Paul: “The abortion issue is a nightmare from a philosophical point of view and I am as glad as he is that it isn’t a ‘hot button’ issue here in the UK.”

    I’m sorry to say that this is a huge cop-out. There are plenty of things that aren’t “hot button” issues in the UK. The desirability of less intrusive government being one of them! Surely you are displaying the “numbers” fallacy Brian Micklethwait alludes to? That is that a given political view derives legitimacy from the number of people who hold it.

    I am not a Pro-Lifer and would seek some sort of philosophically consistent position which justifies termination of pregnancy without deliberate foetal destruction. It seems to me from everything that David says that he is opposed to abortion but doesn’t wish to be seen as a Pro-Lifer. It is (rightly) taken as given here in the “west” that the practice (in Africa) of Female Genital Mutilation is barbaric even though it is commonplace and unremarkable in those cultures. I feel that one day future generations will look back on today’s widespread abortion as a barbaric practice even though it is commonplace and unremarkable in most western society.

    My irritation with debates about abortion has a lot to do with the willingness to fudge those “difficult philosophical questions”, that is why I think much of the debate is dishonest. The philosophical questions aren’t really all that difficult. They only become difficult when you jump through hoops to try and explain why a foetus isn’t a person until birth.

  • R. C. Dean

    I think Michael makes a valid point, that the federal government has no legitimate Constitutional authority to pass such a law. This point may be a trifle tangential, but nonetheless . . . .

    By blowing off “state’s rights”, I fear Perry is giving short shrift to the vital role that devolution of authority, and the consequent multiplication of competing jurisdictions, plays in preserving liberty. I seem to recall a post on this topic recently.

  • R. C. Dean

    I would second Perry’s kudos to the commentariat as well. I have to admit that I often post things mostly to read the ensuing comments, and that a quality commentariat is one of the things that keeps me coming to a blog.

  • toolkien

    At the risk of pounding on the same theme, the basis of the issue rests on the child having rights preserved ultimately by the State (effectively Us) preferrably by using force on the parent. Those who do vest rights to a child at some point in late gestation or afterward, but before self-possession, set up a one way obligation (versus the two way obligation created by the Social Contract), which not fulfilled by the parent must be fulfilled by the State. If the parent attempts to kill the child, the parent is guilty of attempted murder, whisked away to a box (financed at public expense), and the child then has a one way claim on the State (and effectively me). How this is not a ‘sacrifice by force’ of my life for another I don’t know what is. I may choose to sacrifice, based on my set of beliefs, but refuse to be forced to.

    The life of the child springs from the value judgement of the parent and remains viable only as property of the parent until it is capable of contracting with the State on its own behalf. This eliminates the invasion of the private relationship between a parent and their child. In extreme cases of abuse and neglect, privately funded associations are the solution which do not make a claim by force on disinterested third parties. As someone has pointed out if we do have such a responsibility I say we are remiss in our duty with all of the post-birthed ‘aborted’ children in China to the children forced into military brigades in the Civil Wars in Africa.

  • x

    Interesting post. Could you post it again, this time without any references to abortion and concentrating on the ‘Accomodating reality’ issue? Using abortion as an example was a mistake, IMHO; it’s too charged a subject.

    I agree that libertarians should me more acknowledging of the realities on the ground. That anarcho-capitalist utopia is just as pie-in-the-sky as the socialist’s workers paradise.

  • Ken

    “If the parent attempts to kill the child, the parent is guilty of attempted murder, whisked away to a box (financed at public expense), and the child then has a one way claim on the State (and effectively me). How this is not a ‘sacrifice by force’ of my life for another I don’t know what is. I may choose to sacrifice, based on my set of beliefs, but refuse to be forced to.

    The life of the child springs from the value judgement of the parent and remains viable only as property of the parent until it is capable of contracting with the State on its own behalf. This eliminates the invasion of the private relationship between a parent and their child.”

    Just to be clear, are you saying that the state should not forbid and punish parents killing their own minor children?

    Granted, that might do wonders for discipline (You used to have an older brother… until he brought home F’s on his report card…), but I (thankfully) don’t see that idea getting very far.

    “In extreme cases of abuse and neglect, privately funded associations are the solution which do not make a claim by force on disinterested third parties.”

    Yeah, but who forces the parents to release their children to such privately funded associations. Do those associations go in with guns blazing?

    “As someone has pointed out if we do have such a responsibility I say we are remiss in our duty with all of the post-birthed ‘aborted’ children in China to the children forced into military brigades in the Civil Wars in Africa.”

    No we don’t. A government taking responsibility to protect its own citizens doesn’t thereby acquire responsibility for foreigners.

  • Whether a child can ‘contract with the state’ or is a ‘burden on the state (taxpayer)’ are completely irrelevant issues in a debate regarding the morality/legitimacy of abortion. A nation-state has no special value whatsoever regarding a moral judgement as it is purely a utilitarian artifice and thus the ability to contract with the state (a dubious concept at best which is broadly analogous to contracting under duress with a mafia protection racket) is no more significant than the ability of a child to contract with K-Mart… what does matter is the ability of the child to act independently and survive in a meaningful manner and at what point they can do so. As for an abandoned child being a tax burden, that is an argument for or against the existence of tax funded welfare and is thus a completely different issue.

  • toolkien

    to contract with the state (a dubious concept at best which is broadly analogous to contracting under duress with a mafia protection racket)

    I don’t find it dubious at all. The State derives its legitimacy from the people; it doesn’t precede the people in any way, and only gains legitimacy by consideration from the people to ‘it’ and from ‘it’ to the people, and therefore requires competency of the parties involved to affirm and reaffirm the connection. The two basic premises that make a persons life meaningful is to gain, usually in terms of property, tangible or intangible, and the right to remain in possession of it, by force, or the gain is meaningless. To be not allowed to do either makes a person’s life meaningless.

    In an attempt to make a ‘civil’ environment in which to conduct ourselves in these two endeavors, we actively create the State to be the repository of our force, our consideration is to not use force unless directly threatened, i.e. self-defense and transfer that action to the State and in return the State is required to use this force in the preservation of our life and property. But it requires that the person be competent do understand this. Children do not have this capacity. They hold no rights in and of themselves because they don’t have the capacity to contract, hence why children are not bound by any other contracts they have entered into (at least in the US). To say that there is a State obligation to a party that can’t contract with it creates a situation where the State is given an existence, and a legitimacy, separate and distinct from the competent people who make it up. This is impossible.

    what does matter is the ability of the child to act independently and survive in a meaningful manner and at what point they can do so.

    That statement can be made about any animal with a reasonably developed mental capacity but we don’t generally invest it with rights. Sacrilegious to compare a child to an animal? In terms of the State, no. In terms of cultural paradigms and individual conduct? That is left to the individual to decide. With reference to the ‘meaningful’ portion seems to be the debate between the National Beef Council and PETA as far as animals go.

    As for an abandoned child being a tax burden, that is an argument for or against the existence of tax funded welfare and is thus a completely different issue.

    But a child is an incompetent, and forcing a situation where a child is brought to term against the value judgement of the parent(s) that created it surely creates a population of unwanted children that must rely on someone? If the child were disposed of, there would be no burden. If the State intervenes it is then responsible for the child’s existence from the time the parents wished to terminate it forward so the issue of ‘abandoned’ children, or excess children in general, as a result of State intervention, and the burden to the State and the taxpayer, certainly go together.

  • toolkien: So what? Are you saying the only basis for morality and thus objectively derivable rights is within the context of states? Are you serious? If I meet you on some uncharted desert island, is the only basis for morality then based on which of us has the bigger spear?

    As for the issue of tax burden, again, so what? It is not the same issue at all, just a possible mitigating situation if the state is indeed willing to take on the burden… making the parent who evicts the child not a murderer, merely a thief of the resources of others (taxpayers). It has no bearing whatsoever on the moral issue however, as in a stateless situation if you know a kindly grandmother will take care of the child rather than see it die, even if she has not actually given any prior consent, that similarly would make the parents ‘evicting’ the infant thieves of the grandmother’s resources by putting her in that situation, rather than murderers of the child. The state, or absence of one, is completely irrelevant to the actual arguments.

  • ema

    The one day I miss reading this blog you have a discussion where I can make an informed contribution! There is a reason why Congress (as in lay people) should not make medical judgments, and why even philosophical discussions about rights/responsibilities should be based on correct information. Allow me to point out why the recently enacted law has nothing to do with abortion/PBA (“partial birth abortion”).

    Medically, by definition, an abortion is “the medical or surgical termination of pregnancy before the time of fetal viability”. (Williams Obstetrics 21 ed. p 869) This is important: there is no such thing as performing an abortion on a viable fetus.

    [Viability is the ability of the fetus to live independently of the mother. This usually occurs at 24 weeks (if you happen to live near a Level III, NICU hospital, but that’s a discussion for another time). Once the fetus reaches viability, an abortion, either spontaneous (miscarriage), or elective (induced) can not occur. Instead, a PRETERM (PREMATURE) DELIVERY (birth) happens. (A pregnancy is considered full term after 37 weeks.)]

    There is NO SUCH THING AS A PARTIAL BIRTH ABORTION (excuse the caps). This procedure does not exist. And if you think this point isn’t important, allow me to quote the PBA definition from Bill S 3:

    ‘(1) the term ‘partial-birth abortion’ means an abortion in which–

    ‘(A) the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

    `(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus;

    Medically, this definition is nonsensical:

    – performing the abortion…delivers a living fetus

    By definition, an abortion can only occur before fetal viability. If you are performing an abortion you can not have a “living” fetus.

    – for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus

    Since an abortion occurs before fetal viability, THE DELIVERY OF A PRE-VIABLE FETUS WILL TERMINATE THE PREGNANCY. In other words, a pre-viable fetus, by definition, can not exist/survive independent of the mother (i.e., outside the uterus). Once a delivery has been initiated, the delivery will terminate the pregnancy. Medically, the delivery is the “overt” act in this case.

    My point? Regardless of your opinion on the abortion issue, make sure you have the correct and complete information.

  • none

    ema, it has been clear all along that the drafters of this horrific piece of legislation have been more concerned with political reality than medical reality. This law was written with the intent to do precisely the kind of damage that has been done to the cause of reproductive rights, and to advance the careers of precisely those demagogues who now bask in its glory. It is telling that even samizdata’s enlightened and articulate commentariat hasn’t got the terminology straight.

    You write:

    “Viability … usually occurs at 24 weeks (if you happen to live near a Level III, NICU hospital, but that’s a discussion for another time).”

    Oh, do please go for it. I seek in vain for a disciplined libertarian discussion of medical ethics.

  • From a libertarian standpoint, the first purpose of the state is to protect people from harm by others, with the most significant and irreversible harm being murder or manslaughter.

    In abortion, the product of normally consensual behavior by the mother and father is destroyed.

    Thus the most significant and difficult philosophical question is when during gestation does that product become worthy of state protection. Notice that the state protects more than just life in most libertarian systems, it also protects property, and during the (possibly nonexistent) period that the product of conception is not a person, and is not owned by the state, it is property.

    Thus, the critical questions are who we believe has the right to life, and how to balance that right vs. the rights of those who would end that life or have to suffer to sustain that life?

    Who has a right to life (thereby justifying government interference to protect that right)? Is it an embryo? A blastocyst? A fetus at 3 months? A fetus a 9 months? A fetus the moment before delivery? A baby the moment after delivery? An ancephalic infant? A 2 year old that sustains a brain injury rendering that person incapable of thought? A brain injured 20 year old who is unresponsive? An ill behaving 3 year old? A child who requires expensive medication?

    The same logic that allows unrestricted abortion (the substantial inconvenience of the mother, or in a legal sense, an extremely minor threat to the health of the mother – interpreted to include mental health such as being unhappy at having a baby) allows the killing of every person mentioned in the previous paragraph. Hence this test fails to inform.

    There are a number of ways to make the determination of when the protection of the fetus’ life becomes a matter of state interest, but they all share the criteria that the fetus is a person or pre-person deserving of protection from murder, manslaughter, or criminal neglect. This determination is inherently a moral judgement.

    Science cannot answer it, although it might provide information to help distinguish situations. For example, it is a moral judgement that fetus’ capable of life outside the womb should not be killed. It is a scientific and engineering (medical) issue as to which fetus meets that criterion.

    Ideology can answer the question, as an ideology makes moral pronouncements. Religion can answer the question for the same reason (for example, as I understand it, Jewish law allows abortion in early stages of pregnancy only). Utilitarianism in this sense functions as an ideology – one’s moral value is that what is not utilitarian is not right.

    The important point is that this issue cannot be resolved by methods which inherently provide objective truths, such as science. Moral judgements must be invoked, and this cannot be dodged.

    In a democratic political system, this means that groups with conflicting moral judgements will reach a political result, which will probably be completely satisfying to neither extreme, and which may vary through time.

    The police purpose of a libertarian government deals only with those moral judgements that involve interactions between individuals in which one may be harmed by another (where the decision that harming another is itself a moral judgement behind libertarianism). It is generally agreed that murder is immoral. It is usually agreed (in the west) that infanticide is immoral. There are always areas of gray (such as what constitutes murder vs manslaughter; what is the impact of mitigating circumstances such as self defence, which normally translates murder into justifiable homicide). In addition, rights may conflict, and this certainly happens in abortion (although extremists may not admit it).

    In the issue of abortion, the police purpose of government is to prevent (usually by threat of punishment) actions that violate the rights (as determined by moral judgements) of those involved.

    There are several stakeholders, each with rights which conflict, and which must be suitable balanced:

    The right to life of the product of conception.

    The right of any human being (in this case, the mother) to have medical procedures to relieve inconvenience, reduce risks to health, sustain life.

    The rights of the father to the product of conception (normally totally ignored).

    The rights of parents to control medical procedures that take place on their minor children (also usually ignored in these discussions).

    There are three reasons why there is such a problem with abortion in America:

    1) The Supreme Court removed it from the political realm.This was done by discovering (via extremely dubious logic) a “right” in the Constitution, which could then be enforced across all states via the 14th Amendment. Prior to this decision, some states allowed abortion, others didn’; hence the federal system worked as it should… providing choice and experimentation through diversity of laws in different states.

    2 )Subsequent Supreme Court decisions have moved abortion “rights” to the most extreme possible position. Although this is rarely reported in the mass media, any woman, even a 12 year old, can have an abortion at any point of pregnancy without the permission of any other person. This extremism, in combination with the removal from the political process, has created immense frustration, anger and sadness among those who have any other opinion about abortion. This has led to the radicalization of the Christian right, and greatly inreased its involvement in politics.

    3)The total elimination of parental rights in this matter. Any pregnant child has the “right” to an abortion without even a notification of the parents, regardless of circumstances. This is an intrusion of the state into family rights that libertarians rarely mention or are unaware of. This has outraged “family values” conservatives, myself included. It is an unwarranted state interference into the rights of parents to supervise their minor children.

    4)The total elimination of father’s rights. A woman can have an abortion without even notifying the father, regardless of the conditions under which the conception occurred. This provides a state created imbalance in the relationship of prospective parents. This allows the threat of abortion to be used as blackmail, and abortion itself can cause immense grief or psychological harm to the prospective father, even as the rationale for the woman getting the late term abortion can be to prevent psychological harm to her! This issue is almost never mentioned in the US, and I don’t know of its political impact. But it clearly is inconsistent with equal treatment under the law.

  • ema

    none, I must admit I was also very surprised at the comments, especially the ones from the regular contributors. These are very well educated, logical, reasonable people, and yet, when discussing abortion, they don’t appear to pay much attention to the basic facts. For example:

    “But those “Libertarians” who see abortion rights as equivalent to, say, gun rights are guilty of a deliberate fudge in ignoring the fact that an abortion involves the destruction, literally, of an embryonic life.”

    A menstrual period also involves the destruction of an embryonic life. (Most fertilized eggs=embryos are destroyed spontaneously by the body and eliminated, usually during menses.) So, what do we do, ban periods?

    “I nevertheless find it very hard to accept the phrase “a woman’s right to choose.” No. It is a woman’s decision to kill.”

    Is it possible to kill something which is not alive? Also, none of the commentators here seem to realize that a pregnancy engenders a significant risk of morbidity and mortality for the woman. So, if a woman doesn’t want to take that risk, why do the legislators have the right to force her to roll the dice with her life? [The risk of death per pregnancy, per year, from continuing pregnancy is 1 in 10,000 (in developed countries). By comparison, the risk (for women and men of all ages) of death, per year, from automobile driving is 1 in 5,900. So, while pregnancy is a bit less risky than driving a car, it’s certainly not a low-risk, or risk-free undertaking.] (p 1518)

    “To compare a baby to a squatter is tantamount to calling it a parasite.”

    Actually, medically, the fetus is a parasite (this is a descriptive term, not a pejorative one). Moreover, the mechanism by which a pregnancy becomes established is that of a tumor. The placental (afterbirth) tissue is one of the most aggressive and invasive ones in the body. If the mother isn’t able to strike a balance between the invading fetal tissue and her tissue, she will die a horrible death (the placental tissue metastasizes throughout the body, especially to the brain and lungs). Anyway, I digress.

    The viability issue is not an easy one. First, just because a fetus has the potential for viability, nothing, and I mean nothing known to man, can actually insure, or even predict with certainty that said fetus will be delivered as a living neonate (newborn). However, most times when people discuss viability, they make the assumption that, just because theoretically a fetus has reached viability, that fetus will be born alive.

    Second, the language of the PAB bill makes no mention of “potential” viability. It states as a given that the person “delivers a living fetus”, a medically impossible fact. (A pre-viable fetus can not be a living fetus.)

    Third, it’s very hard to set a definite cut-off for fetal viability. Take the 24 weeks limit. Unless you deliver in a hospital equipped with a NICU (Neonatal Intensive Care Unit), that fetus will not survive. So, viability depends not so much on the fetus’ actual age, but rather on the geography of his/her birth. Moreover, just because there’s a NICU available, viability in these extremely premature neonates is not a given. For example, in a NICU study, no one born before 23 weeks survived, and 98% of those born at 23 weeks, 79% of those born at 24 weeks, and 31% of those born at 25 weeks either died or had sever neurological abnormalities. Moreover, a follow up study, at 30 months, of the survivors, found that half of them had neurological disability and half of these had severe disability.(p 1048) And, since I know you like economics, here’s the estimated cost of this care. The total cost of initial care in this country (U.S.) for all newborn infants $10.2 billions annually. Almost 60% of this expenditure is attributable to preterm births before 37 weeks (37 weeks is considered full term).(p 8) Note, please that this is the cost of the initial care, to which one needs to add the cost of caring for a severely impaired child.

    Of course, some parents might be happy (in the sense that they will happily accept this adverse and difficult situation) to have a neurologically impaired child. My point is not about who gets to make the decision and why. My point is that most people (yes, even the Samizdata illuminati) don’t have a realistic understanding of the concept of viability.

    *(All data used here is from Williams Obstetrics 21st ed.)

  • none

    ema writes:

    “The total cost of initial care in this country (U.S.) for all newborn infants $10.2 billions annually. Almost 60% of this expenditure is attributable to preterm births before 37 weeks (37 weeks is considered full term).(p 8) Note, please that this is the cost of the initial care, to which one needs to add the cost of caring for a severely impaired child.”

    Indeed. It seems to me that very few right-to-lifers have the vaguest clue as to the true cost of their moral prettiness. Those of us who like economics have to hope that the rules enumerated in William Sumner’s FOLKWAYS still apply.

  • R C Dean

    ema – regardless of the book definition of abortion, post-viability “abortions” or terminations of pregnancy are most definitely legal in the US right now (partial birth abortions aside). You will not find your book definition of abortion reflected in any law or court decision that I have ever seen.

    The Supreme Court has stated that the woman’s right to terminate her pregnancy does not stop at viability, and has never told us what limits there might be on the right to terminate a pregancy. Although the Roe case referred to viability as a possible limit, later cases have indicated that it is not.

    Right now in the US, I don’t believe there are any legal barriers to a decisional adult woman terminating a fully viable “fetus” at 8 months and 29 days. Most regulation of abortion now on the books focusses on parental rights regarding abortions by their minor children. This is an incredibly convoluted area, so I could be missing something.

    The issue is whether post-viability “abortions should be legal. Right now they are.

  • John Anderson

    To get back to the “Partial Birth Abortion” rather than the subject of abortion as a whole, it is my understanding that such are not simply an elective on the part of the parent[s] but overwhelmingly a response to presumptive health problems of either mother or fetus. Some are elective, most really are not or are a mixture.

    OK, now my feelings about abortion timing. First trimester, elective by parent[s]. Third trimester, only for medical reasons (but with possible exceptions such as the raped 13-year-old who spent seven months in court trying to get permission [already granted by her parents] from the government). Second trimester, I am still trying to come up with something I can apply widely rather than case-by-case.

  • none

    John Anderson:

    It is not really possible to discuss “partial birth abortion” apart from abortion as a whole. Nor is it possible to regulate or legislate against partial birth abortion without regulating or legislating against abortion as a whole, which is why some of us are up in arms.

    You write:

    “Third trimester, only for medical reasons …”

    Please define “medical reasons.”

    ” … (but with possible exceptions such as the raped 13-year-old who spent seven months in court trying to get permission [already granted by her parents] from the government).”

    You seem to believe that a 7+ month fetus has a right to life. How does governmental delay alter this posited right to life? Please discuss. Extra credit for discussing how such governmental delays might be prevented.

  • ema

    RC Dean – I think you are supporting my point. My abortion definition is not a book one; it’s a practical one. Abortion techniques, indications, risk and benefits differ from induction of labor techniques, indications, risks and benefits. Abortions are performed on pre-viable fetuses. Inductions of labor are performed on viable fetuses. Just because no law or court decision reflects actual, real-life, flesh-and-blood (have I stressed this enough :-)) medical procedures doesn’t mean these procedures don’t exist. And, the fact that laws don’t reflect actual medical procedures supports my initial point that lay people/politicians should not legislate medical decisions and procedures.

    And, to illustrate the problem with “theoretical” discussions/laws/definitions vs. reality:

    In 1999 (the last year for which we have stats), the total number of induced legal abortions performed in the U.S. was 861,789. Of these, 88% were performed before 13 weeks, 4.3% between 16-20 weeks, and 1.5% were obtained at or over 21 weeks. (This 1.5% has been relatively constant from 1972 to 1999.) So, the approximate number of terminations at or over 21 weeks is 9,643. The majority (~80%) of these terminations are done before 24 weeks (abortions).

    A relatively small number are performed after 24 weeks, the viability limit, and they are inductions of labor to terminate pregnancy. Of these, most are non-elective (done for maternal or fetal indications). I’m not citing any numbers for the over 24 weeks elective ones because I don’t have time to look for the article now. However, from what I remember the number of elective terminations after 24 weeks is minuscule by comparison.

    *(Reference for the data used: http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5109a1.htm#tab3)

  • ema

    I forgot to include this about terminations done after 24 weeks:

    An estimated 0.08% of terminations are performed after 24 weeks. So, even if we use the total number of abortions for 2000 (1.31 million), that comes out to ~1,048 procedures done after 24 weeks.

    Again, I don’t have the exact number for elective terminations after 24 weeks, however, even if we go with a high estimate (say, half of all post-24 weeks procedures), we get ~500 elective terminations past the time when the fetus may be viable.

    *(http://www.prch.org/med_ed/abslides.pdf)

  • ema, Your argument is circular”

    1. ema says (backed up by Williams Obstetrics) that abortion means termination prior to fetal viability

    2. Abortion by definition never involves a viable foetus

    3. Therefore there is no such thing as Partial Birth Abortion and there is no such thing as killing a foetus as it is never “alive”

    You don’t need to be a scientist or a doctor to see the flaws in this argument. Just because you come up with a definition for “abortion” doesn’t mean that all abortions conform to this definition and PBAs most certainly do not.

    You mock my distinction between Gun rights and abortion rights but offer nothing but pedantry to refute it. Abortion necessarily involves two parties, mother and foetus. You refuse any kind of consideration of the foetus as an individual in its own right and offer a contorted argument to support this position. You have succeeded in persuading yourself of this position and this is rather typical of abortion-rights advocates. There is an undoubted benefit to some women to have freely available abortion “as late as necessary” and in support of women’s “reproductive rights” all manner of post-rationalisations are offered to explain away the fact that a proto-person is being killed. It would be a lot more honest to make a convincing argument for the precise moment at which the foetus is entitled to consideration as an individual and “at birth” just doesn’t cut it.

  • R. C. Dean

    ema, I think you are missing my point, which is that there is no legal barrier in the US right now to aborting or terminating a viable fetus.

    I don’t much care whether you call such a procedure an “abortion” or something else (induction of labor followed by induced termination of fetal vital signs, perhaps?). For convenience, I refer to all intentional terminations of pregnancy as abortions, as does the law.

    While for the most part I agree that medical decisions should not be subject to legislation, I think that medical decisions that affect the rights of third parties are, at least potentially, the proper subject of legislation. The question is whether terminating a pregnancy at any stage affects the rights of third parties.

    If you think that a fetus is not a person until it has been delivered, had the cord cut, and drawn its first breath, fine. I I know people who take this position, although I think they are wrong. If you think a fetus achieves personhood at some earlier point, then the door is properly open to legal protection for that person.

  • ema

    Frank McGahon- the reason PBA does not exist has nothing to do with fetal viability.

    My point about the definition of abortion and fetal viability was made in support of my contention that it is best if we (and by “we” I mean mostly the legislators) know what we’re talking about.

    You say:

    “2. Abortion by definition never involves a viable foetus”

    “3. Therefore there is no such thing as Partial Birth Abortion and there is no such thing as killing a foetus as it is never “alive” ”

    Regarding PBA, PBA doesn’t exist because there is no such surgical procedure known to medical science. As I mentioned in an earlier post, if you perform an abortion, which by definition involves a pre-viable fetus, you can not have a “live birth”, partial of otherwise. An abortion procedure only involves extraction of the fetus.

    On the other hand, a termination of pregnancy on a viable fetus involves: a) terminating the pergnancy first, and b) extracting the fetus. Here, also, you do not have a “live birth”.

    Regarding viability, I said and abortion involves a pre-viable fetus, thus my question was: If something is not alive how can you kill it? I stand by my question.

    I also mentioned the real-life problem that just because a fetus is viable, we have no way of knowing if it’s alive (as in if it will be born alive). Thus my question: How can you say something which may, or may not be alive at some point in the future, is killed?

    “Just because you come up with a definition for “abortion” doesn’t mean that all abortions conform to this definition and PBAs most certainly do not.”

    The defintion is not mine, it’s the accepted medical definition. If an “abortion” doesn’t conform to the definition, it’s not an abortion. Keep in mind that in medicine, before you can do any procedure, abortions included, you have to have an indication and you have to follow the standard of care. All procedures are clearly defined, and so is the care you have to render.

    PBAs don’t conform to the abortion definition simply because there is no such surgical procedure known to physicians. This is not an issue of semantics. It’s a practical, surgical issue–there is no surgical procedure known as PBA, there are no surgical instruments, there’s no surgical indication or protocol, there’s no OR staff, there’s no description of PBA in medical texts, etc.

    “You mock my distinction between Gun rights and abortion rights but offer nothing but pedantry to refute it. ”

    It was not my intention to mock or refute. I was just trying to make a point about the importance of knowing the basic facts.

    “Abortion necessarily involves two parties, mother and foetus. You refuse any kind of consideration of the foetus as an individual in its own right and offer a contorted argument to support this position.”

    Actually, my point was that, before we can consider such theoretical and philosophical issues as the rights of the mother vs. the rights of the fetus, or the extent of the state’s involvement, we need to know and understand the basic medical facts (like the medical definition of abortion, the fact that there is no such surgical procedure as PBA, etc.). I deliberately abstained from the actual “rights” discussion simply because that is not my area of expertise—I’m neither a legal, nor a philosophy scholar.

    “You have succeeded in persuading yourself of this position and this is rather typical of abortion-rights advocates. ”

    Since you don’t actually know me, and since I haven’t even stated my personal position on the rights of a fetus, or on the abortions rights issue, please refrain from jumping to conclusions.

    There is an undoubted benefit to some women to have freely available abortion “as late as necessary” and in support of women’s “reproductive rights” all manner of post-rationalisations are offered to explain away the fact that a proto-person is being killed.”

    I haven’t offered any post-rationalizations, but rather a number of standard medical definitions, descriptions of medical/surgical procedures and statistics. Oh, OK, and a couple of more or less rethorical questions.

    “It would be a lot more honest to make a convincing argument for the precise moment at which the foetus is entitled to consideration as an individual and “at birth” just doesn’t cut it.”

    Fine, you dragged it out of me (and pay attention, since this is going to reveal both my position and my bias). What is the ultimate in honesty, in my opinion, is to acknowledge that the pregnant woman is not an incompetent buffoon, and thus is quite capable, in consultation with her loved ones and her physician, to make whatever convincing argument is best for her, her fetus, and her particular medical/social situation.

  • ema

    R.C Dean- I understand perfectly well. The only reason I went into definitions and statistics was to make a point about the importance of knowing the basic facts.

    As to the actual question under discussion “whether terminating a pregnancy at any stage affects the rights of third parties”, as I hinted in my previous post, all I have to offer here is a personal, non-expert opinion, and a biased one at that. Because I actually deliver babies, I know very well that the only “viable fetus” is the one that has been delivered, had the cord clamped, and has been given >0 Apgars (0 Apgars means a dead baby). This real-life experience, combined with my strong philosophical belief that people in general (women included), given the correct and complete information about anything, are quite capable of making the “right” decision, and should be allowed to do so, predisposes me to answer your question in the negative. (Phew, talk about a convoluted way to give you a “No” answer. :-))

  • ema

    Just to make something very clear: the view expressed in my previous post is my personal, not professional opinion. If I have a patient who decides that she can’t have an elective abortion because she believes the fetus is also a person, that is perfectly fine with me.

  • R. C. Dean

    So, if I understand you, ema, you are saying there is no such thing as a viable fetus, only a delivered baby, because you cannot know if a fetus is viable until it has been fully delivered.

    Would you agree, then, that there should be no legal barriers to a woman terminating her fetus’s potential viability at any point up until the cord has been cut? You seem to be saying that there is no person, even after the fetus has been delivered via the usual labor, until the fetus is fully severed from the mother and living on its own.

  • ema: I am responding to your comments and inferred from those that you consider the issue of abortion to be a simple matter of individual “reproductive rights” and that no consideration be granted to the foetus as an person. You have confirmed this so if I did “jump to conclusions”, I managed to jump to the correct conclusion.

    Your argument remains pedantic and circular. You attempt to assert a fixed point of “viabilty” so that you can claim abortion necessarily involves only pre-viable foetuses, implying that this is circa 24 weeks, yet on closer examination your definition of pre-viability goes right up to the stage of examination after birth. You state that the foetus isn’t “alive” until then and so by definition cannot be killed. This is what I mean by a contorted argument. (This argument also by the way justifies the PBA procedure you claim doesn’t exist). The reason I say that it is a post-rationalisation is that you start from the position that a woman has a right to an abortion and everything else flows from this, including the absurd position that until an obstetrician or midwife declares the baby alive it is nothing but a hunk of inert matter.

    “Just to make something very clear: the view expressed in my previous post is my personal, not professional opinion. If I have a patient who decides that she can’t have an elective abortion because she believes the fetus is also a person, that is perfectly fine with me.”

    Are you really so deaf to the arrogance expressed in these words? It must be very comforting to your patient to know that you are “perfectly fine” with her decision not to abort however deluded she might be in imagining her foetus to be a person.