Useful Fools

I originally posted this to Samizdata, a Libertarian blog that is one of my favorite. Thus it is posted from a libertarian perspective, even though I am a conservative.

The crucial points are that there is no way to reason about abortion without invoking moral judgements, and that there are the rights of four different stakeholders to be taken into account.

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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.

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Final comment: Personally, I am pro-life. Furthermore, I believe that people should be responsible for their personal acts, including sex and its consequences.