Abortion as a Libertarian Issue
"Should Abortion be Legal?"

The following is the argument of the pro-life side
of an on-line debate hosted by the Republican Liberty Caucus.
See the CaRLC info or May 2001 Archive for debate details.


The use of coercion, backed up by violent force, is the defining characteristic of governments. Many other entities use coercion and violence, of course, but governments have a monopoly when it comes to the "legitimate" use of these practices. Every law is ultimately a threat to do harm to those who might want to violate that law. When there is no need for that threat, there is no need for the law. Libertarians seek to minimize the threat of governmental coercion and violence, while using government itself to minimize the threat of coercion and violence from other entities. Unlike anarchists, libertarians recognize that government has a valuable role in society: to establish and defend individual liberty (which, among other things, requires that government protect us from coercion and violence).

The debate over the legality of abortion should be viewed in this context. Is the right to an abortion an individual liberty that government should establish and defend? Or is government obligated to establish and defend the unborn child’s right to life? I think it is possible to answer these questions based on political theory alone, without resort to medical science, religion, opinion polls, etc.

Simply stated, abortions should be illegal because abortions are the violent taking of a human life, without justification or consent. To the victims, abortion is the denial of all liberties at once. Without the right to life, the other rights are meaningless. A government that will not defend the lives of those citizens who cannot defend themselves has sacrificed its legitimacy.

In order to avoid the conclusion that abortion should be illegal, many freedom-lovers simply deny that unborn children are people. If they are not people, then they have no liberties that governments are bound to defend. From this perspective, there is no reason to consider whether a particular abortion is justified or whether the unborn child would have given his or her consent (if that were possible). The only requirement for this argument is that we define unborn children so that they are not people at all. Like all definitional arguments, this one is circular and pointless.

The real problem is that this argument proves too much. If only people have rights and governments (or shifting majorities or mobs) have the legitimate authority to decide which human animals are "people" and which are not, then all of our rights depend on who is defining that all-important word. Those who want to defend abortions are quick to suggest definitions for what is a person and what is not. As far as I can tell, right now the legal definition of humanity seems to depend on whether some portion of the body is still within the mother’s womb or birth canal. But many other standards have been suggested, particularly by those who are horrified by the brutality of late-term abortions. Some say that viability outside the womb should be the test of humanity, others advocate a definition based on brain wave activity, others say what matters is the ability to feel pain, others argue that the ability to reason is the defining characteristic…

What all these arbitrary standards for being a person have in common is that they require something more than being alive to be a person. Once we accept that premise, the possibilities for abuse are endless. Governments can justify the denial of life and liberty simply by changing the arbitrary definition of who is a person and who is not. In fact, history teaches us that governments are very good at that sort of thing. The Holocaust was legal under the Nazi system precisely because Jews were not people who had rights.

In order to protect against the abuses that result when governments define some people as unworthy of protection, we should adopt the broadest reasonable definition of humanity. Being alive and being human should be enough.

This definition would not logically require that all abortions be illegal, but it would shift the focus of the debate toward the other issues that we are accustomed to considering when we debate the legitimacy of taking a human life. For example, is the killing justified by self-defense or defense of another life? Has the victim consented? Or, as we normally consider in the case of "brain dead" people, would the victim consent if he or she had the ability to communicate with us?

In discussing the issue of abortion, I feel compelled to disentangle some other issues that have become tangled in that debate. From my perspective, it is very unfortunate for both sides of the abortion debate that the United State Supreme Court legalized abortion by judicial fiat, basing that right on unwritten "penumbras and emanations" of other rights that were explicitly set forth in the United States Constitution. Even the federal constitutional right to privacy, which is the basis for the legal right of abortion, has very little textual support in the Constitution. As a result of the way it became legalized, the abortion debate has been fragmented into a myriad of tangential debates about judicial activism, original intent, states’ rights, unreasonable searches and seizures, substantive due process, medical technology, fetal viability during certain trimesters, etc. Even though these separate issues are very important, they tend to lead us further and further away from the propriety of legalized abortion.

The abortion issue has also come to epitomize the debate over whether government can or should seek to "legislate morality" or breach the "separation between church and state." Once again, I consider this to be an unfortunate digression from the political issues involved. In a free society, religious people are bound to disagree over when human life begins, just as they disagree over the situations that might justify taking a human life. Any law on abortion will have the effect of making someone’s morality the law. Given the religious diversity in this country, any law on abortion will also establish some church’s doctrine as the law of the land. Thus, this issue is a classic red herring. Instead of fighting against the legislating morality, we should fight to ensure that our laws grant individuals the maximum amount of freedom that will not deny freedom to others.

Thomas Hudson

RLC Debate Rules & Questions
"Should Abortion be Legal?"
Westmiller Pro-Choice Argument
Westmiller Pro-Choice Rebuttal
Q2: "Should Roe v. Wade be Overturned?"

Hudson Rebuttal to YES Argument:

I think all libertarians would agree that "Every woman has a natural right to her own body, which must be defended in law." The abortion debate is really an argument about whether an unborn child is merely a part of its mother’s body. I would argue that an unborn baby is not a mere body part, like hair or fingernails. The unborn baby is a human being with individual rights that the law should recognize. This is why the law in most states punishes the unlawful killing of a fetus as murder.

The argument in support of legalized abortion contends that banning abortion would constitute the reinstatement of slavery in America, at least for pregnant women, but the analogy to slavery doesn’t work very well. In the first place, slavery was not a voluntary institution in America; if slavery had been voluntary, it would be difficult to argue against it from a libertarian perspective. What is more, liberating slaves does not necessarily require the violent murder of slaveholders and the denial of all of their human rights; if it did, then the argument against slavery would be much weaker. It should also be obvious that the "slavery" of pregnant women is necessarily a temporary situation, not at all analogous to the permanent denial of freedom. Requiring that pregnant women follow through with their pregnancies is more closely analogous to requiring that airline pilots protect the rights of their passengers by landing the plane before quitting their jobs and abandoning their responsibilities.

If the analogy to slavery works at all, it works only in those cases where women become pregnant without their consent as the result of being raped. In those cases, many abortion opponents are willing to make an exception. Others would argue that the imposition on the mother is not severe enough to justify the violent killing of her unborn baby. A full discussion of this tangential issue is beyond the scope of this debate. The immediate point is that pregnancy is a natural and foreseeable consequence from consensual sex; it is not a condition imposed on women by society or by the nanny state.

The argument in support of legalized abortion relies heavily on subjective definitions of rights and which kinds of living humans are entitled to them. There are several internal problems with the definitions listed, but the greatest problem is really the danger of allowing governments to deny human rights by simply defining some people as non-persons. Furthermore, if we define humans by the capacity to reason, then we are forced to create numerous exceptions and definitional distinctions. People sleep, faint, have seizures, and fall into comas from which they recover. We recognize their humanity despite their temporary inability to reason; it is difficult to argue that unborn babies are qualitatively different. Furthermore, the behavior of unborn babies themselves defies the contention that they have no ability to reason. In fact, unborn babies use their arms to shield their eyes from light, they suck their thumbs, they recognize their parents’ voices, etc. We can argue that their reactions are based on instinct rather than true reasoning ability, but that leads us further down the path toward subjective and arbitrary definitions that serve only to justify the denial of human rights. Modern history is filled with examples of the inequities and tragedies that occur when governments seek to define some people as inhuman or subhuman or lacking the ability or capacity to reason.

Yes, "The Declaration of Independence asserts, and fundamental libertarian principles recognize, that every person has a right to his or her own life, liberty and pursuit of happiness, provided they do not infringe on the equal rights of another person." Clearly, the killing of unborn children is an infringement on their equal rights.

I agree that "every human child be wanted, nurtured, loved and cherished," but I would argue that we cannot achieve that result by abortion, no matter how many unborn babies we are willing to kill. Adoption, education and community support are the best way to ensure that every child grows up in a nurturing and loving family.

Tom Hudson

RLC Debate Rules & Questions
"Should Abortion be Legal?"
Westmiller Pro-Choice Argument
Rebuttal to NO Argument:
Westmiller Rebuttal
"Should Roe v. Wade be Overturned?"