This is the first in a two-part series. Part I will analyze whether there exists a doctrinaire rights-based position on the ethics of abortion, i.e. a persuasive view that can be derived from our first principles. Part II will discuss what the recent murder convictions of Kermit Gosnell, the now infamous Philadelphia late-term abortionist, tells us about the current state of our society, and why libertarians should care about this.
It is certainly the case that most committed libertarians tend to hold strong (if not extreme) pro-choice views, as reflected in section 1.4 of the Libertarian Party’s 2012 platform, which provides that: “…we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration.” On its face, this would permit legal abortions up to the actual moment of birth.
Ayn Rand, though she despised the libertarian label, is now recognized as one of the movement’s most influential figures. In her essay “Of Living Death,” she held that: “An embryo has no rights. Rights do not pertain to a potential, only to an actual being. A child cannot acquire any rights until it is born. The living take precedence over the not-yet-living (or the unborn).” See http://aynrandlexicon.com/lexicon/abortion.html.
Furthermore, we should note the views of Murray Rothbard, another highly influential libertarian: “Abortion should be looked upon, not as ‘murder’ of a living person, but as the expulsion of an unwanted invader from the mother’s body. Any laws restricting or prohibiting abortion are therefore invasions of the rights of mothers” (footnote omitted). Ethics of Liberty, chapter 14, http://mises.org/rothbard/ethics/fourteen.asp.
As we shall soon see, former Congressman Ron Paul, perhaps the most prominent libertarian of recent times, vigorously dissents from the position held by most of those within this movement. The libertarian reflex also runs counter to what I regard as the commonsense (and correct) view, held by most Americans. From this perspective, the fetus acquires moral status, meaning that “its interests morally matter to some degree for the entity’s own sake, such that it can be wronged” (http://plato.stanford.edu/entries/grounds-moral-status/), at some point between conception and birth. There is great controversy about when in the gestation process a fetus acquires moral status, but one plausible opinion is that it exists once the fetus can experience pain or consciousness.
Clearly, recognizing that an entity has moral status does not imply that its interests are as important as those of a functioning person. For example, those who endorse animal rights are not committed to the view that these rights are equal to those held by human beings; perhaps their rights are vindicated when they are not subject to needless pain or cruelty.
Do libertarians offer us good reason to depart from the conventional wisdom? As just noted, Rand draws a bright line between “living” or “actual” beings and the unborn, i.e. mere “potential” beings. But this purported distinction assumes what needs to be established by argument. What is it, exactly, that transforms a just-about-to-be-born fetus, utterly without moral status, into a full rights-bearing being moments later, as it exists the birth canal? Rand does not say, and there is no obvious answer within the confines of her moral theory regarding rights, either.
For Rand, libertarian rights derive from Man’s nature as a “rational” being (understood in her particular way). See my discussion of this in Nozick’s Libertarian Project, 11-5. But a newly born baby is no more rational in this way than the fetus. So, we are still looking for a justification for the momentous distinction she asserts.
At another point, she invokes the hardship that an unwanted birth inflicts on the parent(s). See the link above. But this claim not only relies on dubious empirical assumptions (what really is so damaging about giving up an unwanted child for adoption?), but plainly begs the question against those who hold that the about-to-be-born fetus does enjoy full (or nearly full) moral status. In all other contexts Rand assigns absolute stringency to rights, so that (for example) under no circumstances can the state redistribute resources from the super-rich to innocent people starving in the streets. Thus, if the fetus does have rights, the hardship imposed on others is irrelevant. She simply assumes, without argument, that the fetus lacks moral standing.
One possible answer that Rand might have given is the one offered by Rothbard: we own our bodies and are thus entitled to do with them as we wish, including disposing as we like of any unwanted beings found therein. But this argument is demolished by Congressman Paul: “A popular academic argument for abortion demands that we think of the child in the womb as a ‘parasite’ that the woman has the right to expel from her body. But the same argument justifies infanticide, since it applies just as well to an infant outside the womb: newborns require even more attention and care, and in that sense are even more ‘parasitic.'” The Revolution: A Manifesto, 59.
In other words, if I have complete ownership of the hair on my head because it is part of my body, what changes when I cut it off? Don’t I still have the right to dispose of it as I see fit? If I can abort the fetus when I am in labor, why can’t I kill it once born? So, assuming that Rothbard would affirm that newborns have moral status (a subject we will return to below), his argument for unfettered abortion rights has been reduced to absurdity.
There is a second fatal objection. As Rothbard himself recognizes in Chapter 13 of The Ethics of Liberty (see above link), an agent’s otherwise justified use of force in defense of his property is rendered immoral if it is disproportionate to the right being vindicated. To use Rothbard’s example, a merchant may be justified in grabbing hold of a shoplifter to prevent him from absconding with his bubble gum, but he is not justified in shooting the shoplifter in the back as he flees.
Rothbard offers us no argument against the claim that a late-term fetus has moral status. Accordingly, even assuming that we own ourselves in the way he claims, this fact only establishes that the prospective mother has the right to evict the unwanted fetus, not to kill it. If the fetus has meaningful moral status at the time of the desired “eviction,” it should–on Rothbard’s own logic–be delivered if possible, or gestation should be allowed to proceed to the point when it can be safely delivered.
Thus, while it is possible to attempt to derive a strong pro-choice stance from basic libertarian principles, these arguments fall flat. They fail for the reason identified by Congressman Paul: they cannot differentiate in any principled way between the moral status of a late-term fetus and a newborn. Rand shows no evidence of even appreciating the dilemma posed by her views. As far as I know, she never offers any explanation for the radically different moral status she assigns fetuses and newborns.
Rothbard is no more convincing. While for him birth marks the onset of certain (limited) rights for the newborn, “the parents—or rather the mother, who is the only certain and visible parent—as the creators of the baby become its owners. A newborn baby cannot be an existent self-owner in any sense.” He then elaborates (seemingly unaware that this contradicts his earlier claim): “even from birth, the parental ownership is not absolute but of a ‘trustee’ or guardianship kind. In short, every baby as soon as it is born and is therefore no longer contained within his mother’s body possesses the right of self-ownership by virtue of being a separate entity and a potential adult.”
From this intellectual hash, Rothbard draws the lesson that, “The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die.” I will not linger on this odious conclusion, but will merely note that in reaching it Rothbard never addresses the challenge posed by Paul. What exactly is it about leaving the birth canal that transforms a fetus from an entity utterly without moral status into one with the right not to be murdered or mutilated?
We must pause here to make the critical point that the daunting task of articulating a morally significant difference between a healthy late-term fetus and a healthy newborn is one faced by all (not just libertarians) who support discretionary late-term abortions (those not related to the mother’s health). I do not believe that any such distinction exists. Some prominent academic philosophers recognize this, but rather than acknowledging that this moral equivalence requires restrictions on late-term abortions, they assert that infanticide is morally permissible! After all, a baby is only a “potential” and not an “actual person.” See, e.g. Stephen Adams, “Killing Babies No Different from Abortion, Experts Say,” The Telegraph, February 29, 2012, http://www.telegraph.co.uk/health/healthnews/9113394/Killing-babies-no-different-from-abortion-experts-say.htm. 
This monstrous, morally perverse perspective is not confined to the ivory tower. During the congressional debates regarding 1999 legislation that banned partial-birth abortions, three senators (Barbara Boxer, Frank Lautenberg, and Russ Feingold) were asked quite specifically and directly whether a fetus born alive during a botched abortion of this type enjoys a right to life. None could bring themselves to simply answer “yes,” but hemmed and hawed about this being a decision best left to the woman and her physician. Senator Boxer suggested that moral status didn’t attach until the parent(s) took the baby home from the hospital. See transcripts, http://theshinbone.com/congtran.1.htm.
Much more recently, during a legislative hearing a representative of Florida Planned Parenthood (an affiliate of the largest abortion provider in the nation, and one that receives hundreds of millions of federal taxpayer dollars annually) was asked the same question, and responded that “We believe that any decision that’s made should be left up to the woman, her family and the physician.” See George F. Will, “Johns Hopkins and Planned Parenthood’s Troubling Extremism,” April 5, 2013, http://articles.washingtonpost.com/2013-04-05/opinions/38304909_1_sga-student-group-rick-santorum. All I can say is God help the newborn left to the tender mercies of the abortionist and his paymaster.
Kermit Gosnell, recently convicted and sent away for life for murdering three newborns accidently born alive in the course his “partial-birth” abortions, apparently shared the perspective of the philosophers, politicians and Planned Parenthood spokesman referenced above. We shall next examine what this case has to say to us.
EDIT TO ADD: This post erroneously states that Gosnell performed his abortions by means of the “partial-birth” procedure. In fact, most were done by means of drug injections that induced labor and delivery, and then Gosnell would cut the spinal cords of the newborns. When this method failed, he would attempt to manually extract the fetus, often causing severe injury to the mother.
. Nozick does not expressly address the question of abortion rights, but what he has to say on a somewhat different topic indicates that he rejects Rand’s view. He claims that for a being to justly make moral demands on others, it must “be a seeker after value, someone who searches for value and guides her behavior by value considerations.” He then adds, “I should emphasize that the characteristic of being a value seeking I is a capacity or potentiality–infants and unconscious people have it.” Philosophical Investigations, 457.
. The journal article referenced in this new story is Giubilini and Minerva, “After-birth Abortion: Why Should the Baby Live?” Journal of Medical Ethics, published online February 23, 2012, available here: http://jme.bmj.com/content/early/2012/03/01/medethics-2011-100411.full. These “ethicists” are not alone. Well-known academic philosophers, including Peter Singer and Hillel Steiner, have made very similar arguments.