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

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

YES:

Every woman has a natural right to her own body, which must be defended in law. A womanís freedom to terminate her pregnancy should never be abridged. Banning abortion would constitute the reinstatement of slavery in America: the subjugation of every pregnant woman to a master nanny state.

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.

In this context, "rights" are proper claims to what is naturally due a person. A "person" is a human being. Not a human might-be, or a human used-to-be, but a homo sapien with the capacity to reason. This definition of "person" is critical to the defense of individual rights.

We all know the difference between a person and a dog, a tree or a rock. But modern technology has shown us pictures of the fetus in utero and it becomes even more personal with the use of ultrasound in nearly every pregnancy. A late term fetus looks very much like a real baby. But it isn't.

A person is a living human. So is a fetus. But, so is any other cell on our bodies. In fact, modern genetics inform us that every cell that contains human DNA has all the potential required to develop into a complete person. Even a dead skin cell, like a dandruff flake, has all the genetic potential, given the proper environment, to become a person. So, we can't use "human" or "living" as definitive characteristics of a person. There is only one characteristic that is unique to human beings and distinguishes every person from any other living thing. That is the capacity to reason.

In the known universe, only a person has the capacity to form abstract concepts from complex perceptions, apply logic to those concepts, test them against the memory of other concepts, form unique and creative ideas, and communicate those ideas to others. If you recognize any of these activities, the odds are very high that you are a person.

Of course, there can be no ability to reason without the physical structures and biologic functions that make it possible. Brain development and operative sensory organs allow any animal to attain consciousness, but that is not a unique human quality. It is not sufficient for a being to simply have physical resources, it also requires the ability to use them. The capacity to reason has many predicates, but the actual capacity only comes to fruition at birth.

Consider what person stands for; which, I think, is a thinking, intelligent being, that has reason and reflection." John Locke

There is a difference between having a capacity and the exercise of that capacity. Any person's ability to reason may be impaired, neglected or evaded, without actually losing the capacity for rational thought. Capacity either exists or it does not. It is a qualitative, not a quantitative, characteristic of persons. Once acquired, the capacity persists and is presumed to remain until it is proven by objective facts that the capacity has been lost forever. Death will do that to you. Sleep wonít.

Guardian rights can be derived only from the natural rights of a person.

The amount of intellectual ability or the quantity of rational capacity is only relevant when it comes to the legal question of whether a person requires a guardian for the protection of their natural rights. A person may be dependent on another for nourishment and sustenance. The guardian -- usually the natural parents -- assumes the responsibility for the defense of a childís natural rights. That circumstance can also apply to retarded, aged, infirm or otherwise handicapped adults. None of these physical impediments compromise the personhood of the debilitated.

There are many deformities, injuries, and diseases -- short of death -- which may eliminate any capacity for reason. A persistent and irreversible vegetative state is not the human condition. The burdens of a guardian are not to be envied and the law should clearly articulate the presumptions that should apply to any guardianís exercise of a dependentís rights. But government cannot assume guardianship of a being that is not a person and thereby violate a woman's natural rights to control her own life.

A potential is the total absence of an essential attribute.

The distinction between capacity and potential is critical. Capacity is a real ability, while potential is the mere possibility. Since we are all potentially dead, we cannot base individual rights on a mere potential. In the same sense, we cannot base rights on the premise that a zygote, embryo or fetus has the potential to become something different. It is not an "unborn baby" or a "preborn child", it is what it is.

A fetus is not a person, simply because it does not have the capacity for reason. For most of its development, it isn't even viable: it canít survival outside the womb. Until very late in gestation, the fetus lacks the neural capacity to even process basic animal sensations. At the verge of birth, a fetus with a fully developed brain still lacks the complex sensory input that makes the potential for reasoning a reality. It is no more rational than any other fully developed mammal.

Human birth is a seminal event: everything changes. The potential for distinctly human acts is realized, and the fetus gains the independent capacity for rational thought, becoming an individual. A child has (hopefully) come to "term" and developed all the physical capacity for "independent" survival; it is no longer a "parasitic" part of the mother; it begins to independently breath its own oxygen; it is exposed for the first time to complex sensory stimulation; the brain begins to distinguish, process, and recall the perceptions of reality which are beyond its own existence; the child acquires the raw sensory materials for integration, abstraction and formation of concepts. The manipulation of these concepts -- reason -- is now within its mental capacity. The potential for human personhood is fully realized at birth.

Rights are proper claims.

Any assertion we make to ownership is a claim. Whether it is a just and proper claim depends on the nature of the claim and the thing being claimed. When we claim a right to our life, we make an assertion of sole ownership. No other person can claim to own, possess, or terminate our life. There is only one person, one life, which cannot be divided, compromised nor infringed without a violation of that basic right. All other rights derive from this basic right to life.

"Man is a rational animal, endowed by nature with rights and with an innate sense of justice." Thomas Jefferson

All rights are individual rights because every person is an individual. There are no such thing as "group rights" or "state rights" that conflict with individual rights. Nor is there any such thing as "fetal rights" that conflict with any real personís rights

Rights do not conflict. They are always complementary expressions of the proper claims of every individual. Natural rights are inextricably -- inalienably -- vested in the person who possesses them. They cannot be extracted, transferred or sold to another at any price.

Even if we were to grant -- beyond all reason -- the right of a fetus to life, we could not deny or infringe the self-evident right of a woman to her own life. Nevertheless, that is what many "pro-choice" proponents suggest.

Courts incline toward the historic autonomy concepts of Anglo-American law, attempting to predict the possibility of independent physical survival. Asserting "viability" as grounds for a claim of rights is not just vague (16-24 weeks of gestation), but elevates physical attributes above unique human characteristics. Biologists go a step further, drawing a slightly less vague line (7-9 weeks) where unique physical traits of homo-sapiens are evident. Many theologic advocates suggest an earlier line (1-2 weeks) when the fertilized human zygote is implanted in the uterus and becomes an embryo.

All of these proponents focus on physical characteristics which might identify a human, rather than the mental characteristics that distinguish a human person. They all grant the state a right to conscript the womanís body on behalf of an embryo or fetus that barely has the potential to become a person. They all lead to preposterous legal contradictions and perilous consequences for every woman.

Unless we are prepared to grant rights to bacteria, monkeys and trees; unless we are willing to prosecute women for capital crimes, we must abandon the proposition that a fetus has rights. The fetus is a part of the woman until birth and every woman has every right to terminate her own pregnancy whenever she pleases. That choice should be thoughtfully considered, in the absence of any government subsidy or penalty.

My preference is that every human child be wanted, nurtured, loved and cherished. Birth control and abortion are perfectly ethical and frequently wise choices toward that objective. Slavery is not.

William Westmiller
01/27/2001

RLC Debate Rules & Questions
"Should Abortion be Legal?"
NO:
Hudson Pro-Life Argument
Rebuttal to Yes Argument:
Hudson Pro-Life Rebuttal
"Should Roe v. Wade be Overturned?"
YES:
Hudson Pro-Life Argument
NO:
Westmiller Pro-Choice Argument
NO:
Westmiller Pro-Choice Rebuttal
YES: (Pending)
Hudson Pro-Life Rebuttal


Westmiller Rebuttal to NO Argument:

The only legitimate use of force is in self-defense. The only proper role of government is to secure rights by ensuring that every individual is equally protected against the initiation of force and that retribution for injury is judged objectively. From a libertarian perspective, governments canít arbitrarily establish or grant rights, they can only recognize rights that are inherent in the nature of every person.

"Natural rights [are] the objects, for the protection of which, society is formed and municipal laws established." --Thomas Jefferson

The key question is whether a fetus can, by its nature, properly claim to have individual rights. Only when that claim is made -- and firmly established by evidence and logic -- can government properly recognize and defend it. That determination cannot be arbitrary or sectarian, it must be based on clear definitions as to the nature of the thing and objective evidence that the claim is both proper and defensible. Asserting such rights for a fetus fails all these criteria.

If "living" and "human" were sufficient criteria to establish rights, then all things living and human should enjoy the equal protection of government force. But, this is nonsensical. Cancerous tumors are both living and human. Does a malfunctioning kidney have a right to life and liberty simply because it is living and human? Shall we entertain class action suits on behalf of saliva? All of these things contain living cells which are distinctly human.

Even if we foolishly grant that a fetuses -- and all these other living human cells -- have the "potential" to become complete human persons, they still fail the rights test.

First, none of them are individuals. They are totally dependent on the real persons of which they are a part. That is their nature. To claim individual rights for something which is not an independent entity is a contradiction in terms.

Second, no claim can be considered proper if it requires the sacrifice of another personís rights. Living human cancer tumors cannot have a right to life when their existence might cause the death of an actual person. A fetus cannot have any right which compromises the natural rights of a woman. I have no right to enslave another person for my own benefit -- even with their implied or explicit consent. A fetus has no right to enslave a pregnant woman.

Third, who can be granted the guardian rights to assert a claim on behalf of a fetus? After all, if a fetus has rights, it can solicit the courts to prevent any injury against its "person". Will District Attorneys file charges against a pregnant woman who isnít eating a proper diet -- causing potential injury of the fetus? Will we have "fetal cops" to ensure that women donít put the fetus "at risk" of possible injury? The most preposterous extremes of enforcement are perfectly valid -- if a fetus has rights.

All of these conditions are summed up in a valid definition of the term "person". Persons have rights. Non-persons do not.

William Westmiller
01/29/2001