A Principled, Middle-Ground Position on Abortion

Abortion is an emotional and polarizing issue because it pits the life of a fetus against the right of a woman to control her own body. The moral principles involved compel some people to oppose all abortions and force others to advocate abortion-on-demand financed by the state. I intend to show that if we give appropriate weight to all the moral principles involved, it is sometimes legitimate to use force to defend a woman’s choice to have an abortion, but it is more often right to exert all forms of moral pressure short of physical coercion to defend the life in her womb.

All abortion techniques are gruesome.

Two techniques are commonly used to perform abortions during the first twelve weeks of pregnancy: dilation and curettage (known as D&C) and suction curettage. In the D&C method, the doctor inserts a spoon-shaped instrument called a curette into the uterus. The curette is about 10 inches long and has sharp edges, which the doctor uses to cut the fetus into pieces. Since the uterine opening is not dilating on its own as it would in a natural birth, the doctor has to forcibly dilate it in order to pull or scoop out the pieces. The opening cannot be stretched too far, so the doctor sometimes uses ring forceps to crush the head or other large parts of the fetus before removing them from the womb.

The suction curettage or vacuum aspiration method eliminates the need for the doctor to cut up the fetus and scrape or scoop out the pieces. In this technique a vacuum aspirator is inserted in the uterus. The vacuum aspirator tears the fetus apart and sucks it out of the womb through a tube. This method is most commonly used in large abortion clinics that have the required equipment.

After the twelfth week of pregnancy two other methods are commonly used: hysterotomy and “salting out.” A hysterotomy is similar to a Cesarean section, except that after the abdominal incision is made and the fetus is lifted out, it is left to die in a hospital basin. In the “salting out” method the fetus is drowned by injecting a saline solution into the amniotic sac surrounding it in the womb. The saline solution induces labor within 12 to 36 hours at which time the fetus is expelled from its mother’s body. On rare occasions the fetuses are born breathing or crying and they survive for a couple days even though the doctors and nurses make no effort to save them.

Women who wait until the second or third trimester before deciding to have an abortion have another option, called partial-birth abortion, that takes advantage of the common law definition of birth. In common law, birth does not occur until the head comes out. So as long as the head is still in the womb killing it is not infanticide. To do a partial-birth abortion the doctor positions the fetus in the womb so that it will come out feet first. This has the advantage of reducing the danger that it will be born alive. The procedure entails (1) inducing a breech delivery with forceps, (2) delivering the legs, arms and torso only, (3) puncturing the back of the skull with scissors or a trochar, (4) inserting a suction curette into the skull, (4) suctioning the contents of the skull so as to collapse it, (5) completing the delivery. In addition to ensuring that the fetus is not technically born alive, this procedure has the advantage of not requiring the cervix to be dilated as much as it would be in normal childbirth. So the mother is safer and more comfortable when the doctor sucks the fetus’ brains out and crushes its skull before extracting its corpse.

The pro-choice and pro-life labels are inaccurate but firmly entrenched.

A Christian lady wrote to tell me that although she is philosophically libertarian she was reluctant to join the Libertarian Party because of its use of “pro-choice” rhetoric:
The "pro-choice on everything" saying bothered me, as it seemed to make so light of the abortion issue, as if it was a given that everyone that was for liberty was also for abortion. I had to convince myself that the LP was OK because they had a statement in their platform saying that it was particularly harsh to force people who thought abortion was murder to be a part of paying for abortions. This was always what bothered me the most about abortion, thinking that I was helping to pay for them, thus being made a party to it against my will. It seems to me that most people that take on the pro-choice label want public funding of abortion. So, I never want that label attached to me. I insist on calling myself pro-life, even though it is not as if I want to make abortion illegal again.

The real pro-choice position would permit people to have as many choices as possible. This is essentially the libertarian position that each person has the right to do whatever he wants with his own life and his own property as long as he does not violate the equal rights of others to make choices for their lives and their property. The pro-choice label is not appropriate for most of those who currently use it because (1) they are primarily concerned with the issue of abortion, which cannot be settled by the pro-choice principle alone, and (2) the people who refer to themselves as pro-choice are actually opposed to free choice on many other issues.

First of all, when applying the real pro-choice position we need to take into account the rights of all the individuals involved. If fetuses have no rights, then women have the right to decide for themselves whether to have abortions, and they should be allowed to make the choice without being coerced one way or the other. However, if a fetus has rights, the pro-choice principle might not necessarily lead to the conclusion that women always have the right to kill them. The pro-choice principle by itself cannot tell us whether a fetus has rights. We need to use other principles to answer this question, and we cannot know how to apply the pro-choice principle to the issue of abortion until we do this. So it is not immediately obvious that the pro-choice principle supports abortion-on-demand.

Second, most who refer to themselves as pro-choice because they believe women have the right to choose to have abortions are opposed to allowing women to make personal choices in other areas. In fact, most who support the right to abortion-on-demand are opposed to choice in education, social discrimination, gun ownership, and many other things. They often use the libertarian argument that a woman's body is her private property and, therefore, she has the right to decide what to do with it. But many of them do not believe any woman has the right to decide what to do with her own body with regard to pornography, prostitution, or narcotics use. And while many of them take an absolute stand on a woman's right to abortion with no minimum age limit, they want to maintain age limits for other things such as the age when she can drive, vote, drink alcohol, get married, and engage in sexual intercourse. This results in absurd combinations of ideas such as that teenage girls are too young to decide to get married or have sex (backed by severe penalties for statutory rapists) while these same girls are not too young to decide whether to have abortions.

Pornography, prostitution, and drug abuse may be vices, but at least they do not necessarily involve taking a life. These practices can be classified as victimless crimes because they are voluntary. Abortion, on the other hand, is not victimless or voluntary as far as the fetus is concerned. The innocent fetus pays the ultimate price when his mother chooses to have an abortion. How can people be pro-choice on abortion and yet be unwilling to tolerate victimless crimes?

Even if fetuses have no rights, they are still sentient beings who suffer pain when their bodies are torn apart. It is amazing to me that many of the people who support the right to abortion are opposed to cruelty to animals. I suppose they believe it is OK to be cruel to unborn animals.

Not only are those who refer to themselves as pro-choice often opposed to the right to choose to bear arms, or the right of parents to choose which school to send their children to, or the right to choose which foods and drugs to ingest into your own body or to give to your children, they are usually in favor of having the government finance abortions for women and young girls who can’t afford to pay. This means these so-called pro-choice people are opposed to the right of each individual to choose whether to have some of his earnings spent on abortions, and they are opposed to the right of the individual to practice the religion of his choice if the religion he prefers forbids financing abortions.

Another inconsistency in the pro-choice position is that the father is not allowed to have any choice about whether to financially support the child if the mother decides to give birth–even if the parents are not married and even if the father made no promise to support the child. Whether the father is forced under penalty of imprisonment to support the child is a decision made by the mother and enforced by the state. Apparently, when a man impregnates a woman he establishes an enforceable obligation to support the new life, but when a woman voluntarily gets pregnant she isn't even obligated to refrain from killing it.

Logically, the pro-choice label should be limited to libertarians, because libertarians are the only ones who consistently support the right to choose. I suppose the abortion-on-demand supporters refer to themselves (since 1975) as pro-choice because (1) it is handy to have a short name, (2) pro-choice sounds positive and tolerant, whereas pro-abortion and abortion-on-demand sound anti-human, and (3) pro-choice contrasts well with pro-life, which is the label the antiabortion side adopted in 1961. An accurate name for those who refer to themselves as pro-choice would be unwieldy. For example: “people who believe pregnant women have the absolute right to chose to have abortions and the right to use money confiscated by force from others to pay for their abortions when they can’t afford to pay for themselves.” Since that name is too long, I will hereafter use “pro-choice” in quotation marks as the name for this position.

The pro-life label is not precisely accurate either. Those who use it are not necessarily in favor of fostering, or even preserving, all life. What they are actually in favor of is preserving the lives of fetuses as opposed to killing them. It would be awkward to always refer to this position as “pro-preserving-fetal-life,” so I will hereafter use “pro-life” in quotation marks as the name for this position.

The “pro-choicers” resent the emotionally loaded terms unborn child and unborn baby, which the “pro-lifers” use. The “pro-lifers” resent the clinical and dehumanized terms such as protoplasm, unwanted tissue, and fetus, which the “pro-choicers” prefer. As I sometimes argue in support of the “pro-choice” side and sometimes in support of the “pro-life” side I use whichever words seem appropriate.

How does the non-aggression principle affect the abortion issue?

According to the non-aggression principle, we can use force against another person or their property when (1) that person is threatening to violate our person or property and the only way to defend ourselves or our property is by using such force or (2) that person is threatening to violate someone else’s person or property and we have the victim’s consent to defend his person or property and the only way to defend the victim or his property is by using such force.

The conclusions we can draw about abortion by applying the non-aggression principle depend to a large extent on whether a fetus has rights. Unfortunately, people disagree on this. The easy way to defend abortions is to simply deny that a fetus is a person. Then we can regard it as an extra part of a woman’s body like a wisdom tooth, which she can decide to let grow or have removed as she pleases. However, it would still be wrong to force a woman to have an abortion against her will, because that would violate her property right to her own body. So even if fetuses have no rights, some kinds of abortions are forbidden by the non-aggression principle. But this does not settle the “pro-choice/pro-life” dispute, because neither side advocates compulsory abortions, at least not for mentally competent women inside the United States.

Another implication of the view that a fetus has no rights is that if we kill a pregnant woman, we have to answer for killing her, but we can't be charged with murdering her fetus. Another implication is that if we batter a pregnant woman and her fetus dies as a result, we are not guilty of murder or manslaughter if the woman survives. Another implication is that a pregnant women has the right to drink alcohol to excess or to neglect her health in other ways even though this endangers her fetus and can permanently impair its abilities. Many people find these implications counter-intuitive and unacceptable.

What if fetuses have rights?

I am unwilling to beg the question by simply assuming that a fetus is not a person, and I want to avoid a metaphysical discussion of it here. (In my book Enforceable Rights: A Libertarian Theory of Justice I explain why I believe fetuses have rights.) So, for the sake of argument, I temporarily assume that a fetus is a person with the same basic rights as any other person. I will drop this assumption in my final conclusions.

A woman could legitimately end her pregnancy for any reason if she does it in a way that does not harm her fetus. Given our current level of medical technology, only carefully planned late-term procedures such as Cesarean sections can withstand all moral objections without recourse to additional arguments. But abortions always involve deliberately killing the fetus, therefore, if a fetus has any moral worth, abortion raises moral concerns and needs to be justified by moral arguments.

Before abortion-on-demand became legal, one of the most common arguments for it went like this: (1) Women are going to have abortions whether they are legal or not. (2) Legal abortions are safer than illegal abortions. (3) Therefore, for humanitarian reasons we should legalize all abortions. This argument ignores the rights of the victims, and it ignores the possibility (which proved to be the case) that significantly more human fetuses would be killed each year if abortion-on-demand became legal. It is like saying men are going to rape women whether it is legal or not, so we might as well make rape legal so that rapists will be safer.

Another humanitarian argument used to justify abortions is that every child deserves to be brought into a family that can love and nurture it, but some pregnant women are not able to provide such an environment, so abortion is sometimes necessary to prevent a child from being deprived of his right to a good home. This argument proves too much. If it is OK on these grounds to kill an unborn child who has rights, then it is OK to kill a six-year-old child or a minor of any age for the same reason.

Some women justify abortions on the grounds that having a baby would interfere with their business careers and limit their ability to attain equal status with men. If the moral value of a woman’s career and status outweigh the rights of her fetus they also outweigh the equal rights of all her minor children, so she has the right to kill them too.

The strongest point I have heard in defense of abortions is that nobody has the right to live inside someone else’s body without their permission. In my book I used this argument without much elaboration to defend a woman’s right to chose to have an abortion:

The fetus, even if we assume he has all the basic rights of a moral agent, has no right to live as a parasite in someone else's body without their consent. So, even though the fetus has no choice and is completely innocent of any intention to violate his mother's property rights, the mother has the right to hire a doctor or someone else to tear the fetus apart and pull him out piece by piece. Abortion is a deplorable, but legitimate, means of self-defense against an innocent trespasser.

The same Christian lady mentioned earlier objected to my use of the word parasite to describe a fetus:

A parasite generally inflicts harm on the host organism and that doesn't necessarily happen in this case. To imply that it does inflict harm, by choosing this word seems to encourage women to do think of the fetus as a parasite and therefore encourage them to do something that you also say is deplorable. This seems contradictory. The use of the word parasite here may be technically correct, but there must be some better word, such as innocent trespasser. After all, in other cases where a human might harbor a parasite, it would not seem a deplorable thing to get rid of it, but a really good and healthy thing.

The same lady also wondered whether I should have been so graphic (in using the words “to tear the fetus apart and pull him out piece by piece”) in describing an abortion. Here I was trying to show two things: (1) the gruesome nature of abortions and (2) that a woman's right to have an abortion can be so absolute that it includes such ghastly procedures.

It isn't necessary to describe a fetus as a parasite in order to make the case for a woman’s right to choose to expel it. It is enough to simply note that even if a fetus had the same basic rights as anybody else, the fetus does not have the right to live inside somebody else’s body without that person’s permission. By itself this moral fact implies that if a woman is pregnant because of rape, or because she doesn't know where babies come from, the fetus is an uninvited guest or trespasser and has no right to be inside her, which means she has the right to expel it at any time during her pregnancy. I use the word expel here rather than abort, because expel does not necessarily mean kill and I don’t want to jump to the conclusion that killing trespassers is always justified. It is clear to me that removing a trespasser without killing him is better.

If a fetus is malformed in such a way that it has no chance of ever becoming a moral agent, and if, as I believe, the potential to become a moral agent is the basis for the rights of a fetus, then such a fetus has no rights and its mother can abort it without committing a crime.

When expelling a fetus cannot be justified on the grounds that it is threatening the woman’s life or it got there by rape or it is not potentially a moral agent, we have to address the problem of defending the hypothetical rights of the fetus. For a normal intelligent woman who knows where babies come from and who has not been raped, it seems to me that her fetus is actually an invited guest. If the fetus is an invited guest, doesn’t it have the right to be in her womb until such time as it is born or miscarries naturally, or until it poses a threat to the life of the woman?

Some women who have abortions could be likened to the Anthony Perkins character in Psycho who accepts a guest into the Bates Motel and then kills her. Certainly the psycho and a woman who knowingly gets pregnant and then has an abortion are poor hosts, to put it mildly. But the analogy breaks down in several places: (1) Bates didn't have to kill the guest to get her to leave right away. He could have asked her to leave and she could have consented. But an invited fetus cannot usually be made to leave prematurely without killing it. (2) Bates killed the guest because he was insane. Women who chose to get pregnant and then choose to have abortions usually have logical reasons for choosing to have abortions. (3) We would certainly have had the right to use force to stop Bates from killing his guest. It is not so clear that we have the right to use force to stop a woman from aborting her invited fetus.

Unlike an adult guest in a motel, a fetus cannot give its consent to vacate immediately or be killed, and it cannot defend itself. For the sake of argument, and because most living creatures have a will to live, I assume that a fetus would not want to be killed and would consent to outside help in defense of its life. Outsiders like you and I might have the right to use force to prevent a woman from having an abortion if (1) the fetus has the same basic rights as all moral agents, (2) the mother intends to have an abortion, (3) the abortion is not necessary to save the mother’s life, (4) she invited the fetus into her womb, (5) the fetus can eventually be removed from the womb without killing it, (6) you only use force against those who are threatening to kill the fetus, and (7) the kind of force you use is the minimum reasonably needed to save the life of the fetus.

Prudence and respect for life require that we first try nonviolent persuasion rather than violence to stop an abortion. When bribery and moral arguments fail or cannot be tried because there isn't enough time, then ex hypothesi we can use brute force. When we resort to brute force, prudence and respect for life also require that we not use more force than is necessary to stop the crime.

Given our current level of medical technology, the kind of force needed to save a fetus from abortion depends on the stage of the pregnancy and the resolve of the woman to have an abortion. For the first several months the fetus cannot live outside its mother’s womb. During this time killing the mother cannot be justified as a means to defend the fetus. If the mother is determined to have an abortion, to completely defend her fetus you would have to keep the woman under constant surveillance. You might have to keep her in a straight-jacket or use some other form of physical restraint for several months. You would also have to make sure that she maintains a healthy diet so that her fetus gets enough nourishment to develop properly. When the fetus is mature enough to live outside the womb, you could ask the woman whether she would rather have a Cesarean section and her freedom now or whether she would rather remain in bondage until she gives birth naturally.

This is a far-fetched scenario. Even those who regard abortion as murder should have misgivings about allowing individuals to kidnap women and keep them in bondage to prevent them from having abortions. First of all, if you are not sure that a woman intends to commit a crime, you cannot justify restraining her, and you cannot be sure that a woman intends to have an abortion unless you catch her in the act, at which point it may be too late to stop her. (Perhaps if a woman has had multiple abortions in the past a case could be made for locking her up as a serial killer.) Second, a woman can usually find a doctor somewhere who is willing to swear that an abortion is medically necessary. The abortion could be done before anyone could prove the diagnosis was false. Third, whether it is true or not, a woman can say she was raped and, therefore, she is not responsible for being pregnant and not obligated to carry the pregnancy to natural childbirth. Fourth, given the current laws and the current state of public opinion, holding a woman captive to prevent her from having an abortion would be insane. That is why so few people resort to such extreme measures. It is too bad that the number of women who choose to have their unborn children killed is not equally low.

In summary, even if fetuses have rights, and even if in some theoretical circumstances it might be possible to justify the use of force to stop an abortion, we cannot know whether the necessary circumstances exist, so for all practical purposes we have no right to use laws or other forms of violence to prevent a woman from having an abortion.

What if we don’t know whether fetuses have rights?

I think that fetuses have rights, but many people disagree. I suspect that most people are uncertain–including many abortionists and many on the “pro-life” side. If you are not sure whether fetuses have rights (1) you cannot justify using force to stop an abortion–not even a late-term abortion, and (2) you cannot justify abetting or participating in an abortion unless the fetus is threatening the woman’s life or the fetus has no chance of developing into a moral agent or the fetus was spawned without the woman’s consent.

If you are not sure whether fetuses have rights, you cannot say that abortions are unjust to the fetuses and you cannot justify using force to stop abortions (assuming the woman having the abortion consents to the abortion), but this does not mean you cannot have other moral objections to abortions. If you are not sure whether fetuses have rights: (1) You certainly shouldn't go around killing them. (2) You shouldn't have an abortion yourself. (3) You shouldn't help someone else get one. (4) You should not finance abortions. (5) You should be opposed to forcing others to finance abortions against their will.

What if you are sure that fetuses have no rights?

If you are sure that fetuses have no rights, you could still object to abortions on the grounds that fetuses are living, feeling beings who should no be subjected to any of the horrendous abortion procedures. There is more to morality than justice. You may have the right to kill a fetus, but that doesn't mean it is the right thing to do. You could believe abortion is just and still believe that compassion and preservation of life are better than cruelty and killing.

You should also recognize that other people are not as certain as you are that fetuses have no rights, and you should respect their opinions and their religious beliefs by not using laws or guns or threats of imprisonment to force them to finance abortions.

What can we legitimately do to reduce the number of abortions?

In the first 20 years after abortion became legal nationwide, 28,000,000 abortions were accomplished in the United States. The “pro-choice” attitude has become so prevalent that today about one out of every four pregnancies ends with an abortion. Having a D&C is now less traumatic for some women than going to the dentist.

What can we do to then stop the wholesale killing of unborn babies?

(1) We can refuse to voluntarily finance abortions.
(2) We can exert pressure on the government to stop stealing our money and spending it on abortions.
(3) We could prevent some abortions by raising money and offering generous payments to women to bribe them into not killing their fetuses. But given the pace at which American women are having abortions, it would take billions of dollars each year to tame the carnage this way.
(4) If you are a pregnant woman, you can make the right choice.
(5) We could peacefully demonstrate outside abortion clinics to try to shame women into not killing their unborn babies.
(6) We can try to persuade women to avoid unwanted pregnancies.
(7) We can try to encourage women to place the life of their fetuses above their own convenience.

A California women’s group called Nurses for Life seeks to discourage abortions by informing women about the nature and consequences of abortions. In a legal brief they stated:

We believe that if other members of our sex could witness an abortion, if they could see the results of an abortion, if they could see the drowning of the child in amniotic fluid, the experimentation on the living child, the disposal of the dismembered child, the emotional trauma of many women after the abortion, they would, hopefully, not choose to exercise what they term their “civil right” to an abortion.

“Pro-choicers” are outraged when “pro-lifers” show photographs of aborted fetuses. For one thing these photographs are often gruesome because they show mutilated corpses. For another thing, the photographs that are not gruesome show fetuses with little arms, legs, fingers, and faces that look too human and too cute. Showing photographs of the results of abortion evokes sympathy for “unwanted tissue” and diverts attention from women’s rights, so the “pro-choicers” regard this tactic as reprehensible.

But aren’t the actual killings more reprehensible than showing photographs of the victims? The “pro-lifers” should offer the “pro-choicers” a deal: If you stop killing unborn babies, we will stop showing pictures of them.

The most effective way to reduce the number of abortions would be to mount a world-wide propaganda campaign to make women aware of how appalling abortions are and to make women feel ashamed to consider having them. Photographs of aborted fetuses should be included in this propaganda campaign because they show how inhumane abortion is and how deceitful and callous the “pro-choice” propagandists are when they try to portray abortion as an honorable option. Propaganda has worked well in recent years to turn cigarette smokers into pariahs. A well run campaign to fully inform the public about abortion could make abortionists even more unpopular than smokers, as they used to be and ought to be.

This middle-ground position agrees with common sense.

The non-aggression principle combined with a modicum of regard for innocent human life leads to conclusions about abortion that makes sense to most Americans: (1) A woman has the right to choose to have an abortion if her life is threatened by the pregnancy, because this is self-defense. (2) It is OK for a woman who was raped to get an abortion, because she is not responsible for her pregnancy, and to force her to carry the fetus for nine months would be to make her a slave. (3) Late-term abortions, when the fetus is more fully developed and might be able to survive outside the womb, are less excusable than early-term abortions. (4) Even though a woman might not have the moral right to kill her fetus in most circumstances, we should not use laws or other forms of violence to prevent her from doing so (except maybe when the fetus is at a point where it could live outside the womb), because as a practical matter, it is almost impossible to know whether a woman has a legitimate reason for having an abortion, and to stop a woman who is determined to have an abortion would require kidnapping her and keeping her in bondage. (5) We should not submit to the arrogant demands of the “pro-choice” faction to have the government finance abortions because it is wrong to pay for abortions with stolen money, and it is wrong to force “pro-life” people to promote abortions. (6) Most abortions (93 percent) are done for the woman’s convenience rather than for therapeutic or eugenic reasons. These abortions are repugnant and inhumane at the least, and those who contemplate them should be discouraged by all nonviolent means rather than acclaimed as admirable woman exercising their discretion.

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