Abortion
Wendy McElroy
When I was eighteen, I chose to have an abortion. Accordingly, the question I am addressing here is nothing less than whether I have committed murder. If the fetus is a human being with individual rights, then I am among millions of women who have committed first degree, premeditated murder, and I should be subject to whatever penalties are imposed upon that crime. The fact that I did not know I was killing a human being is irrelevant, just as the state of knowledge of a racist who kills blacks while believing them to be animals is irrelevant to the fact that he has committed murder. If you shy away from such prosecution, you are shying away from the antiabortionist position.
Before advancing the pro-choice position--to which I subscribe--it is necessary to distinguish between morality and rights, between the moral and the legal.
Peaceful activities may be moral or immoral, but they never violate rights. Taking drugs, gambling, or lying to a friend may or may not be immoral, but they are not a violation of rights. In libertarianism, the purpose of law is to protect rights, not to enforce virtue; as such, the law does not concern itself with the morality of an action but asks only if it is invasive.
Many people oppose abortion on moral grounds without considering it to be a violation of rights which should be addressed by law. I have no argument with this particular antiabortion position. My argument is with antiabortionists who attempt to translate their personal moral convictions into laws restricting what I may do with my body ... those who advocate mandatory motherhood.
Although libertarianism is often expressed as 'the noninitiation of force" or 'anything that's peaceful,' there is a more fundamental theme running through libertarian thought. The Levellers in seventeenth-century Britain called it 'self-proprietorship'; Josiah Warren, the first American anarchist, referred to 'the sovereignty of the individual"; abolitionists in opposing slavery used the concept of 'self-ownership'-that is every human being simply by being a human being has moral jurisdiction over his or her own body. The principle underlying libertarianism--the reason it is wrong to initiate force against anyone--is that it violates that person's self- ownership. This moral jurisdiction is what I mean by the term individual rights.
The concept of rights is key to the abortion issue. Antiabortionists claim that abortion violates the rights of the fetus. I contend that antiabortion legislation violates the rights of the pregnant woman. I also contend that the fetus is not a human being. It possesses no rights. Up until the point of birth, it is not a self-owner.
To say this is not to deny that the fetus is in some sense alive, or that the zygote is a potential human being. A potential is not an actual, however; it is a hypothetical possibility. To their credit, Libertarians for Life (the libertarian antiabortionist organization) do not ascribe individual rights to the fetus on the basis of its potential, but on the assumption that at the instant of conception--at the moment there is a fertilized egg-there is a human being with individual rights.
A Reply
Kevin Craig
When I was fifteen, I chose to become a Creationist. As a Christian I had been raised to believe that "God used evolution." I was dismayed to discover that evolutionists lied about science because they hated Biblical morality. I became a pacifist when I learned that evolutionists hate the Prince of Peace because they love (and profit from) war. Soon I became a Christian Anarchist. After two years of a full scholarship to USC, I dumped it to avoid the strings that would ensnare me in the evolutionist Secular Humanist military-industrial complex.
I'm
sorry Wendy McElroy had an abortion. God has forgiven crimes more heinous. According to LewRockwell.com,
"Wendy
McElroy is author of The
Reasonable Woman. See more of her work at ifeminists.com
and at her personal website."
I've always liked many of her
writings. I wish I could meet and marry a nice Christian woman with half
her brains and half as pretty. But I guess as long as she is not a Christian she will continue to hold to
views which are as morally indefensible as the view that blacks are not
human.
I do not believe in the concept of "rights." However I agree that Ms. McElroy's distinction between immorality and illegality is helpful. Not everything the Bible says is sinful should be "criminal." However, while libertarianism may not view law as the enforcement of morality, not a single person who signed the U.S. Constitution would agree. Every single one of them believed that human laws should reflect divine law, and legislators should turn to the Bible for the blueprints of law. (More on the myth of "separation of church and state" here.)
Technically I am "pro-choice." I believe abortion is murder, but I am an anarchist, and don't believe in any "government" laws at all, including laws against murder. Would there be an epidemic of abortion if Christians became so numerous they eliminated the State and all government laws against abortion? I doubt it. First, the State would no longer be funding Planned Parenthood. The State would no longer control public schools, which would soon be run by Christians, where abortion would be exposed as murder. Parents would disinherit sons or daughters who secured abortions. Consumers would boycott doctors who murdered children. Insurance carriers would not issue malpractice coverage for doctors who murdered babies. Grocers would not sell to them. Landlords would evict abortionists and those who threatened to kill children. Television and movies would show the trauma and pain caused by abortion. Churches would excommunicate abortionists and other murderers. (This would be an effective sanction in a nation where the sermon dominates all public discourse, even though only a small fraction of the population may actually be given voting membership in churches.) Abortion would be held in universal disdain. Who would get an abortion in an anarcho-theocracy such as this?
The Real Question: Is Abortion Murder?
I agree with Ms. McElroy: Abortion is not murder simply on the grounds
that a fetus is
"potential" humanity. She credits Libertarians
for Life for not arguing this way. I wouldn't agree with L4L that
abortion is wrong because the unborn baby has "rights,"
rather, all of us have a duty to God not to kill the unborn human being.
But this still reduces to the same question: who is a "human
being" that must not be killed? Or as McElroy phrases it,
"What does it mean to be an
individual?" I like her following paragraph:
One such characteristic is a rational faculty.
An essential characteristic--indeed, a prerequisite--of considering something to be individual is that it be a discreet entity, a thing in and of itself. Until the point of birth, however, the fetus is not a separate entity; it is a biological aspect of the pregnant woman which possesses the capacity to become discrete. At birth, the fetus is biologically autonomous and is a self-owner with full individual rights. Although it cannot survive without assistance, this does not affect its biological independence; it is simply the dependence that any helpless individual experiences.
What is missing? The missing piece is individuality ... autonomy ... a biologically discrete person. As long as the fetus is physically within the woman's body, nourished by the food she eats, sustained by the air she breathes, dependent upon her circulatory and respiratory system, it cannot claim individual rights because it is not an individual. It is part of the woman's body and subject to her discretion.
Birth is the point at which the fetus becomes an actual human being in the legal sense of that term. There is no point, other than conception, at which such a clear, objective change occurs in the status of the fetus. All other changes are a matter of degree rather than of kind and, thus, are inadequate for legal theory which demands a definable point of enforcement.
Antiabortionists often detail the physical development of the fetus, the development of toes and brainwaves, in order to give weight to the claim that it is human. But this development, by their own standards, is irrelevant, since they have already assigned individual rights to the zygote, which has no discernible features.
Therefore these features are beside the point. Moreover, this development actually supports the pro-choice position; i.e., that the fetus is a potential rather than an actual human being.
One means by which antiabortionists attempt to load the issue of abortion against the woman and in favor of the fetus is by ascribing responsibility to the woman. But there are two senses in which you can use the word responsibility. The first is as an acknowledgment of an obligation to another person. This is the sense in which antiabortionists use the word, and it begs the question. It assumes as a given the point in contention; namely, is the fetus an individual toward whom obligations can be incurred?
In contrast, the other sense of the word responsibility does not involve another person. It refers to the acknowledgment that a certain situation results from your actions and to the acceptance in terms of money, time and moral accountability of handling the situation. When a woman uses her own money to pay for an abortion, she has assumed full responsibility for the pregnancy.
There is something odd and inconsistent about the way antiabortionists use responsibility. The pregnant woman is said to be responsible for the fetus because it resulted from her choice to have sex. How then does the antiabortionist handle the rape pregnancy?
An individual is not morally responsible for a situation in which there was no choice. The consistent position is that the fetus is still a human being and abortion is still murder, in which case one wonders why the issue of responsibility has any relevance. Whether or not the woman is responsible, she is prohibited from having an abortion. On the other hand, if an exception is made in cases of rape pregnancies, antiabortionists must explain how their libertarian theory can sanction willful, premeditated murder.
Similar problems exist in the contract model of pregnancy by which the woman is assumed to have contractual obligations to the fetus. This assumes that the fetus is not only an individual who can contract, but that it was present at the point of sex from which the obligation is said to have arisen.
In a more fundamental sense, however, the issue of contract is irrelevant. Individual rights are attributed to the fetus and the protection of rights is independent of contract. I do not have to contract with neighbors not to kill me or steal from me; my body and property are mine by right. Contract enters the picture only when I desire something to which I have no right, such as another's labor. Through contract, I acquire a negotiated claim over that person. If individual rights are granted to the fetus, then a contract is superfluous to the protection of those rights. If individual rights are not being claimed, then no contract is possible since a contract is a voluntary exchange between two human beings.
| In 1973, viability before 28 weeks
was considered unusual. The 14th edition of L. Hellman & J.
Pritchard, Williams Obstetrics (1971), on which the Court relied in
Roe for its understanding of viability, stated, at 493, that "[a]ttainment
of a [fetal] weight of 1,000g [or a fetal age of approximately 28
weeks' gestation] is . . . widely used as the criterion of
viability." However, recent studies have demonstrated
increasingly earlier fetal viability.[5]
It is certainly reasonable to believe that fetal viability in
the first trimester of pregnancy may be possible in the not too
distant future. Indeed, the Court has explicitly acknowledged that
Roe left the point of viability "flexible for anticipated
advancements in medical skill." Colautti v. Franklin, 439
U.S. 379, 387 (1979). "[W]e recognized in Roe that
viability was a matter of medical judgment, skill, and technical
ability, and we preserved the flexibility of the term."
Danforth, supra, at 64.
The Roe framework, then, is clearly on a collision course with
itself. As the medical risks of various abortion procedures
decrease, the point at which the State may regulate for reasons of
maternal health is moved further forward to actual childbirth. As
medical science becomes better able to provide for the separate
existence of the fetus, the point of viability is moved further back
toward conception. |
Imagine a human being involved in a near-fatal automobile accident on the way to the hospital for a kidney transplant, who is now, in addition to dialysis, in need of a respirator and is being fed intravenously. If this person were taken off dialysis, respirator, and IV feedings, and put outside in the hospital dumpster, she would soon die. Would the hospital be guilty of murder? Not according to the logic of McElroy:
| As long as the [victim of diabetes mellitus and a near-fatal auto accident] is physically within the [hospital's building], nourished by the [hospital's] food, sustained by the [hospital's] air, dependent upon [the hospital's dialysis] and respiratory system[s], it cannot claim individual rights because it is not an individual. It is part of the [hospital] and subject to [its] discretion. |
Like the rape victim, the hospital may argue that "this person was brought here against my will by the paramedics. We didn't ask for this person to be brought here." State law may even require the hospital to provide reasonable emergency treatment regardless of the ability of the victim to pay for them. Yet McElroy's argument would not get the hospital off on an indictment for murder.
McElroy is correct in her observation that "the issue of contract is irrelevant."
One of the concepts upon which 'rights" rest, from which the word derives meaning, is the concept of 'a natural harmony of interest." This does not mean that all men feel benevolence toward each other and their desires never come into conflict. It means that the exercise of my self-ownership, my rights, in no way violates the similar exercise of your rights. My right to believe in God does not conflict with your right to be an atheist. If it did conflict, it could not be an inalienable right which all men possess; rather it would be a privilege which I possessed at your expense. Two fundamental characteristics of individual rights are that all human beings have them and that they do not conflict.
The Declaration of Independence says that all human beings "are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." What if your existence does not make me "happy?" Doesn't my "right" to pursue happiness conflict with your "right" to life?
Unfortunately, Jefferson (and some of the other Founding Fathers) were less than consistent and clear in their understanding of social duties.
Consider McElroy's provocative illustration:
This is the dilemma posed by the antiabortionists who grant the fetus a right to control the woman's body which competes and conflicts with her own right. The result is not conflicting rights, but the destruction of the framework from which rights derive meaning. Unlike gray areas of libertarian theory in which disputes arise because rights are not well defined, the alleged rights are clear and in direct contradiction. The fetus's life requires a claim on the woman's bodily functions; the woman's right to her body requires the fetus's death.
In Randian terms, this is 'the fallacy of the stolen concept." In this fallacy, a word is used while the conceptual underpinnings which are necessary to the definition of the word are denied. Thus, the antiabortionists use the concept of 'rights' without regard for the fact that the fetus is not a discrete individual, the alleged rights conflict, and the rights involve two people claiming control of one body. Whatever version of rights is being attributed to the fetus, it is not the natural rights championed by libertarianism.
Antiabortionists often counter that the fetus should have a right to the woman's body because it is a matter of life and death. But rights are not based on how important it is to have them. Nor is there a cost-benefit chart giving us how much pain balances how much use of force. Rights are not granted or open to adjustment; they are inalienable. And they derive from only one source--the right to control your own body. The antiabortionists are not depriving the pregnant woman of some percentage of her rights; they are denying the right of self-ownership altogether.
The important thing about the antiabortionist position is not that it is wrong, but that it has disastrous consequences. Antiabortionists dislike dealing with these consequences and consider such discussion to be 'scare tactics.' As long as the basic thrust of their position is "there ought to be a law,' however, it is reasonable to ask what this law would look like.
If the fetus is a human being, then abortion is clearly first-degree, premeditated murder and should be subject to whatever penalties that category of crime merits. Aborting women and doctors would be liable to punishment up to, and perhaps including, the death penalty. If this is 'scary,' the fault lies not with the person who points it out, but with the one who advocates it. Antiabortionists sometimes backpedal on this issue by stating that, since abortion has not been subject to such penalties historically, there is no reason to suppose they would occur in the future. But this is evasion. The debate does not concern history, but moral theory. By antiabortionist standards, abortion is premeditated murder and they should be decrying the tradition of slap-on-the-wrist penalties rather than using them to reassure us.
Moreover, if you admit the idea that the fetus is a human being for whom the woman is legally responsible, then the woman cannot take any action to imperil the life and well-being of the fetus. Almost everything she puts into her system is automatically introduced into the system of the fetus and, if the substance is harmful, it constitutes assault upon the fetus on the same level as strapping me down and forcing drugs into my body. Moreover, life-endangering acts, such as parachute jumping, would place the unconsenting fetus in unreasonable danger. If the woman has no right to kill the fetus, she can have no right to jeopardize its life and well-being. Thus, if the fetus has rights, it is not merely a matter of prohibiting abortion; it means that the woman is criminally liable for harm befalling the fetus on the same level as she would be for harming an infant.
The only framework from which "rights" derive meaning is the Christian framework. I discussed this here.
Ayn Rand is not the only writer who has spoken in terms of "the stolen concept" or "stolen capital." Christians have spoken of "intellectual capital" or "moral capital" in these articles:
If "the natural rights championed by libertarianism" permits a man to swallow a pill which murders another, then that particular libertarian position is not worth anyone's support.
The rights which the Founding Fathers recognized derive from only one source: God. McElroy does not acknowledge the "Faith of our Fathers."
The Consequences of Anti-Abortionism
McElroy suggests that there are terrible consequences to the belief that killing babies is wrong. But all her consequences depend upon the existence of a State of dubious moral character. As an anarchist, my position is not subject to these challenges. But they should still be addressed.
She is correct when she says that "abortion is clearly first-degree, premeditated murder and should be subject to whatever penalties that category of crime merits." She is also correct when she observes that to some people "this is 'scary.'" But we live in a culture which is so "tolerant" that it ignored the murder of 10,000 per day every day of the 20th century. Calling a person a murderer or a thief seems so "judgmental."
McElroy is correct to hold pro-capitalpunishment anti-abortionist advocates to the fire:
| By antiabortionist standards, abortion is premeditated murder and they should be decrying the tradition of slap-on-the-wrist penalties rather than using them to reassure us. |
McElroy, with a razor-sharp mind, raises other very interesting questions, which she dismisses as silly, but deserve careful thought. There are indeed acts which endanger the life of her child and should subject a mother to criminal liability. The law used to recognize such liability. Many laws protected the rights of unborn children. These laws recognized the unborn as legally human. (A link to a list of laws which allow, for example, a dying man to leave his estate to an unborn child and have that will enforced by courts, will soon be here.)
The antiabortionist position is weak, riddled with internal contradictions, and dangerously wrong. It is a sketchy argument which does not address key issues. It uses the word 'rights" in a self-contradictory manner which denies the framework from which the concept derives meaning. Although the message is 'there ought to be a law,' antiabortionists refuse to address the question of what this law would entail or how it would be enforced. I believe this refusal serves a purpose. It permits antiabortionists to argue on the side of compassion and children without having to face the truly inhumane and brutal consequences of their theory. Self-ownership begins with your skin. If you cannot clearly state, "Everything beneath the skin is me; this is the line past which no one has the right to cross without permission," then there is no foundation for individual rights or for libertarianism.
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Wendy McElroyJohn 18:38
Pilate saith unto Him, What is truth?
John 14:6
Jesus saith unto him, I am the way, the truth, and the life: no man cometh unto the Father, but by me.
John 8:32
And ye shall know the truth, and the truth shall make you free.
John 17:17
17 ¶ Sanctify them through Thy truth: Thy Word is truth.