Abortion on Demand is the only Defensible Libertarian Position
In a recent Ron Paul CNN interview with Piers Morgan, Paul tried to wiggle out of the “pro-life” moral quandary of denying legal protection to the zygote in the instance of rape(“honest rape,” as he qualified it) by appealing to a supposed equivalent moral quandary of the abortion on demand position regarding the distinction between terminating a mature fetus vs killing a new born infant. However, contra Paul, the latter is not a moral quandary; but the former pro-life position very much is.
Pro-life, by definition, implies pacifism. While pacifism certainly is a legitimate moral foundation to hold, its moral constraints are unenforceable. It’s enforcement, by its own standard, would be a moral violation. For example, it’s one thing to voluntarily deny your own moral claim to self-defense but it’s quite another to involuntarily enforce this moral claim against other agents. The enforcement of the pacifist moral constraint would necessarily violate the pacifist constraint. The exemption of an enforcer from the moral constraint it is enforcing is a primary libertarian complaint against the nature of the State itself. Any enforcement model that exhibits such characteristics bears an unlibertarian classification.
Paul is often quoted as saying “you can’t protect liberty without protecting life.” But this is nonsense. You can’t protect life, that is, enforce violations against it, without enforceable moral constraints. Life qua life, which is equivalent to the “sanctity of life,” is a pacifist position. But the pacifist position, as noted above, is unenforceable. Given this, we certainly can apply a libertarian test or criterion to the moral constraints that are necessarily enforced.
In reality, the pro-lfe position rarely is pro-life, i.e., pacifist. Life qua life, or the sanctity of life position, is narrowly applied to pregnancy(although typically extended to euthanasia as well). Outside of this limited scope, however, the right of self-defense re-emerges, evidenced by the strong correlation of the “pro-life” position with a “pro gun rights” position. Some, however, like Paul, makes exceptions for rape and threats to the mother’s life. But these exceptions violate the sanctity of life constraint. Here the exceptions disprove the rule. Hence the moral quandary.
Now the problem of enforceability of obligated pacifism doesn’t disappear because of an arbitrary narrowing of applicability–in this case, to pregnancy. Those who impose an obligation of pacifism without exceptions for pregnancy encounter an obvious moral quandary, namely the problem of spontaneous abortion. This is not a trivial side consideration. Spontaneous abortions occur at roughly the same order of magnitude as surgical(and/or chemical) abortions. To differentiate between the two using “intent” as the criterion ad hoc redefines intent as the only criterion in legal jurisprudence. And we can definitively link the probability of spontaneous abortion to a female’s age. So to use an analogy: if a driver accidentally hit and killed a child in a school zone while driving 25mph, that driver might escape criminal sanction. However, if the driver was driving 100mph and hit/killed a child, and, say, this was the driver’s third time killing a child in a school zone driving at such a speed, it would be very unlikely that said driver would escape criminal culpability.
The above analogy applies to females over certain age, say, 35, who repeatedly attempt pregnancy. This problem has spawned an entire industry of “assisted reproduction technologies.” However, under a pacifist obligation, this industry would have to be banned. Analogous to the idea of restricted speed zones around schools(children), a pacifist obligation would require an upper age restriction for pregnancy eligibility. This is unenforceable sans age-mandatory tubal ligation.
The no-exception pro-life position(the majority of them, at least) is not about to go this far. Hence the exception to the rule and the moral quandary. The more general point that being made is that, actuarially speaking, pregnancy is a risky proposition, both for the female and the pre-natal entity(even excluding surgical abortions, only 75% of pregnancies result in live births). A moral obligation of pacifism to enforce life qua life vis a vis pregnancy would necessarily criminalize it in a totalitarian sense. In a practical sense, what the pro-life position really reduces to is an arbitrary enforcement of a moral offense against female sexual freedom.
Given the moral quandary of the pro-life position, which is unresolvable, a frequent defense is to switch gears and cast abortion on demand as suffering from its own quandary. This is typically expressed by stating that abortion on demand implies legitimizing infanticide. I would actually claim the opposite: that abortion on demand legitimizes obligation on the part of the parent post-birth. How is this?
The abortion on demand position suffers no moral quandary because it imposes no moral constraint on the female’s contractual freedom to terminate a pregnancy, unless such a constraint has been contractually/voluntarily agreed to. Because of the absence of any pacifist obligation regarding pregnancy, the act of carrying the pre-natal entity to term implicitly imposes an obligation on the part of the parent post-birth which arguably resolves a moral contractarian problem vis a vis parental moral constraints regarding children(which are incapable of contracting).From a moral contractarian position, abortion on demand is at least a necessary condition(although perhaps not a sufficient condition) for parental obligation.
Even if we drop the moral contractarian perspective, we still have a standard libertarian constraint that necessarily must frown on impersonal pacifist obligations. As explained above, it is an obvious moral quandary to impose an obligation to carry “conception” to “live birth.” If we redefine the obligation to say the that obligation starts at the point of “viability,” that is, the obligation is to carry a viable fetus to term, then we are talking about a moral constraint against “third trimester” abortions. Of course, practically speaking, we are only talking about 2% of the total number of per annum surgical abortions. These are almost always cases of health complications. And it is also roughly at this point that the hard choices between a healthy female and an unhealthy fetus become clear. The “viability” constraint, in practical terms, has little consequence in terms its expressed intent, which would be the “protection” of life, and quite a bit of potential consequence in terms pacifist obligations imposed on the female regarding her own health and her moral calculation regarding her own health relative to that of the “viable fetus.” The latter moral calculation may indeed be a moral quandary for the female in terms of individual choice, but it only becomes a moral quandary in terms of enforceable obligations if we define it as a duty to be enforced one way or another. So to be concrete, a mandatory viability test could be used to deny permission to terminate a pregnancy but it also could be used to deny permission to carry to term based on some risk assessment model. Those who favor the former application of a “viability test” are likely to be horrified by the latter application example. But to legitimize the former legitimizes the latter. It’s a bit arbitrarily narrow to refer to a viability standard(as an enforceable obligation to deny the female the moral calculation to terminate a pregnancy) but to nonetheless give absolute freedom to the female to carry to term regardless of the risks to herself. The other side of the equation is bound to become a point of consideration when you socialize “viability standards.” The only way to avoid the moral quandaries of enforcement is to drop the enforceable constraints and leave the moral quandaries up to individual conscience.
Abortion is often presented as a difficult problem. While I will concede that abortion may present moral quandaries to individual conscience, I nonetheless find no difficulty in staking out the only defensible libertarian position regarding its enforceable moral constraints: none. Any such enforceable constraint results in moral quandaries that simply cannot be enforced without arbitrary exemptions to save the enforcement regime from becoming a total criminalization of pregnancy. Interestingly, those who typically defend prohibition of abortion on the grounds that it is necessary to defend civilization end up criminalizing, in a totalitarian sense, the very foundation of it: human reproduction. The only way for the prohibitionists to avoid this dilemma is to take the position that “abortion is murder, except when it’s not.”
Because the abortion on demand position imposes no moral or pacifist constraints on pregnancy, it avoids the aforementioned moral quandaries of enforcement. However, some will charge that AoD provides a moral foundation for infanticide. The charge here would be that “birth” is an arbitrary dividing line and that AoD suffers from its own exemption: “killing children is murder, except when its not.” On one hand I have to concede children are part of the difficult problem of libertarianism regarding enforceable obligations(defined by contract). Indeed, Benjamin Tucker is noted for defining children as property until the point of contract. But the problem of the inability to contract(or lack of contractual agreement) extends beyond children. For example, what are our obligations to animals? To strangers? I readily admit that Tucker’s position is a moral quandary that shouldn’t be left up to individual conscience, but the only path I see to an implied enforceable obligation with respect to children is one that passes through no pacifist obligation of pregnancy. I certainly don’t think a pacifist obligation attached to pregnancy resolves this problem. On the contrary this merely transfers the ownership title over to the State. I don’t see any scourge of infanticide occurring. But I do see an ever encroaching problem developing of children more or less becoming property of the State.