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 Title

Abortion

 Author

Wendy McElroy

 Author Notes

Libertarian columnist, commentator and author of XXX: A Woman's Right to Pornography (St. Martin's Press, 1995) and Sexual Correctness: The Gender-Feminist Attack on Women (McFarland, 1996).

Ms. McElroy maintains a web site of her own which offers more of her writing.

 Essay -

When I was eighteen, I chose to have an abortion. Accordingly, the question I am addressing here is nothing less than whether I have committed murder. If the fetus is a human being with individual rights, then I am among millions of women who have committed first degree, premeditated murder, and I should be subject to whatever penalties are imposed upon that crime. The fact that I did not know I was killing a human being is irrelevant, just as the state of knowledge of a racist who kills blacks while believing them to be animals is irrelevant to the fact that he has committed murder. If you shy away from such prosecution, you are shying away from the anti-abortionist position.

Before advancing the pro-choice position -- to which I subscribe -- it is necessary to distinguish between morality and rights, between the moral and the legal.

Peaceful activities may be moral or immoral, but they never violate rights. Taking drugs, gambling, or lying to a friend may or may not be immoral, but they are not a violation of rights. In libertarianism, the purpose of law is to protect rights, not to enforce virtue; as such, the law does not concern itself with the morality of an action but asks only if it is invasive.

Many people oppose abortion on moral grounds without considering it to be a violation of rights which should be addressed by law. I have no argument with this particular antiabortion position. My argument is with anti-abortionists who attempt to translate their personal moral convictions into laws restricting what I may do with my body ... those who advocate mandatory motherhood.

Although libertarianism is often expressed as 'the non-initiation of force" or 'anything that's peaceful,' there is a more fundamental theme running through libertarian thought. The Levellers in seventeenth-century Britain called it 'self-proprietorship'; Josiah Warren, the first American anarchist, referred to 'the sovereignty of the individual"; abolitionists in opposing slavery used the concept of 'self-ownership'-that is every human being simply by being a human being has moral jurisdiction over his or her own body. The principle underlying libertarianism -- the reason it is wrong to initiate force against anyone -- is that it violates that person's self- ownership. This moral jurisdiction is what I mean by the term individual rights.

The concept of rights is key to the abortion issue. Anti-abortionists claim that abortion violates the rights of the fetus. I contend that antiabortion legislation violates the rights of the pregnant woman. I also contend that the fetus is not a human being. It possesses no rights. Up until the point of birth, it is not a self-owner.

To say this is not to deny that the fetus is in some sense alive, or that the zygote is a potential human being. A potential is not an actual, however; it is a hypothetical possibility. To their credit, Libertarians for Life (the libertarian anti-abortionist organization) do not ascribe individual rights to the fetus on the basis of its potential, but on the assumption that at the instant of conception -- at the moment there is a fertilized egg-there is a human being with individual rights.

The essential question becomes: 'What does it mean to be an individual?" For only by being an individual can the fetus possess individual rights. When defining a thing, it is necessary to discover the core characteristics-the characteristics without which it would be something else. With human beings, you subtract accidental characteristics such as race, sex, and hair color until you are left with the things which cannot be subtracted without destroying humanness itself. One such characteristic is a rational faculty.

An essential characteristic -- indeed, a prerequisite -- of considering something to be individual is that it be a discrete entity, a thing in and of itself. Until the point of birth, however, the fetus is not a separate entity; it is a biological aspect of the pregnant woman which possesses the capacity to become discrete. At birth, the fetus is biologically autonomous and is a self-owner with full individual rights. Although it cannot survive without assistance, this does not affect its biological independence; it is simply the dependence that any helpless individual experiences.

Let's rephrase this argument: having a DNA encoding, which is all that is probably present at the point of conception when rights are assigned, is not sufficient grounds upon which to claim individual rights.

What is missing? The missing piece is individuality ... autonomy ... a biologically discrete person. As long as the fetus is physically within the woman's body, nourished by the food she eats, sustained by the air she breathes, dependent upon her circulatory and respiratory system, it cannot claim individual rights because it is not an individual. It is part of the woman's body and subject to her discretion.

Birth is the point at which the fetus becomes an actual human being in the legal sense of that term. There is no point, other than conception, at which such a clear, objective change occurs in the status of the fetus. All other changes are a matter of degree rather than of kind and, thus, are inadequate for legal theory which demands a definable point of enforcement.

Anti-abortionists often detail the physical development of the fetus, the development of toes and brainwaves, in order to give weight to the claim that it is human. But this development, by their own standards, is irrelevant, since they have already assigned individual rights to the zygote, which has no discernible features.

Therefore these features are beside the point. Moreover, this development actually supports the pro-choice position; i.e., that the fetus is a potential rather than an actual human being.

One means by which anti-abortionists attempt to load the issue of abortion against the woman and in favor of the fetus is by ascribing responsibility to the woman. But there are two senses in which you can use the word responsibility. The first is as an acknowledgment of an obligation to another person. This is the sense in which anti-abortionists use the word, and it begs the question. It assumes as a given the point in contention; namely, is the fetus an individual toward whom obligations can be incurred?

In contrast, the other sense of the word responsibility does not involve another person. It refers to the acknowledgment that a certain situation results from your actions and to the acceptance in terms of money, time and moral accountability of handling the situation. When a woman uses her own money to pay for an abortion, she has assumed full responsibility for the pregnancy.

There is something odd and inconsistent about the way anti-abortionists use responsibility. The pregnant woman is said to be responsible for the fetus because it resulted from her choice to have sex. How then does the anti-abortionist handle the rape pregnancy?

An individual is not morally responsible for a situation in which there was no choice. The consistent position is that the fetus is still a human being and abortion is still murder, in which case one wonders why the issue of responsibility has any relevance. Whether or not the woman is responsible, she is prohibited from having an abortion. On the other hand, if an exception is made in cases of rape pregnancies, anti-abortionists must explain how their libertarian theory can sanction willful, pre-meditated murder.

Similar problems exist in the contract model of pregnancy by which the woman is assumed to have contractual obligations to the fetus. This assumes that the fetus is not only an individual who can contract, but that it was present at the point of sex from which the obligation is said to have arisen.

In a more fundamental sense, however, the issue of contract is irrelevant. Individual rights are attributed to the fetus and the protection of rights is independent of contract. I do not have to contract with neighbors not to kill me or steal from me; my body and property are mine by right. Contract enters the picture only when I desire something to which I have no right, such as another's labor. Through contract, I acquire a negotiated claim over that person. If individual rights are granted to the fetus, then a contract is superfluous to the protection of those rights. If individual rights are not being claimed, then no contract is possible since a contract is a voluntary exchange between two human beings.

But what if, for the sake of argument, the fetus were acknowledged to possess individual rights? What consequences would this have for the pro-choice position?

The principle of self-ownership states that every human being, simply by being a human being, has moral jurisdiction over his or her own body. Thus, even if the fetus possesses rights, those rights could never include living within and off of the woman's body, for this would be tantamount to asserting that one human being could own the bodily functions of another ... that two people can have rights in one body. The word used to describe a system in which one man has property rights in another is slavery.

One of the concepts upon which 'rights" rest, from which the word derives meaning, is the concept of 'a natural harmony of interest." This does not mean that all men feel benevolence toward each other and their desires never come into conflict. It means that the exercise of my self-ownership, my rights, in no way violates the similar exercise of your rights. My right to believe in God does not conflict with your right to be an atheist. If it did conflict, it could not be an inalienable right which all men possess; rather it would be a privilege which I possessed at your expense. Two fundamental characteristics of individual rights are that all human beings have them and that they do not conflict.

Imagine a world in which the act of swallowing a pill murdered another human being. In what sense could I claim the right to swallow? On the one hand, in what sense could I claim the right to my own body when I cannot properly control what is put into it?

This is the dilemma posed by the anti-abortionists who grant the fetus a right to control the woman's body which competes and conflicts with her own right. The result is not conflicting rights, but the destruction of the framework from which rights derive meaning. Unlike gray areas of libertarian theory in which disputes arise because rights are not well defined, the alleged rights are clear and in direct contradiction. The fetus's life requires a claim on the woman's bodily functions; the woman's right to her body requires the fetus's death.

In Randian terms, this is 'the fallacy of the stolen concept." In this fallacy, a word is used while the conceptual underpinnings which are necessary to the definition of the word are denied. Thus, the anti-abortionists use the concept of 'rights' without regard for the fact that the fetus is not a discrete individual, the alleged rights conflict, and the rights involve two people claiming control of one body. Whatever version of rights is being attributed to the fetus, it is not the natural rights championed by libertarianism.

Anti-abortionists often counter that the fetus should have a right to the woman's body because it is a matter of life and death. But rights are not based on how important it is to have them. Nor is there a cost/benefit chart giving us how much pain balances how much use of force. Rights are not granted or open to adjustment; they are inalienable. And they derive from only one source -- the right to control your own body. The anti-abortionists are not depriving the pregnant woman of some percentage of her rights; they are denying the right of self-ownership altogether.

The important thing about the anti-abortionist position is not that it is wrong, but that it has disastrous consequences. Anti-abortionists dislike dealing with these consequences and consider such discussion to be 'scare tactics.' As long as the basic thrust of their position is "there ought to be a law,' however, it is reasonable to ask what this law would look like.

If the fetus is a human being, then abortion is clearly first-degree, premeditated murder and should be subject to whatever penalties that category of crime merits. Aborting women and doctors would be liable to punishment up to, and perhaps including, the death penalty. If this is 'scary,' the fault lies not with the person who points it out, but with the one who advocates it. Anti-abortionists sometimes backpedal on this issue by stating that, since abortion has not been subject to such penalties historically, there is no reason to suppose they would occur in the future. But this is evasion. The debate does not concern history, but moral theory. By anti-abortionist standards, abortion is premeditated murder and they should be decrying the tradition of slap-on-the-wrist penalties rather than using them to reassure us.

Moreover, if you admit the idea that the fetus is a human being for whom the woman is legally responsible, then the woman cannot take any action to imperil the life and well-being of the fetus. Almost everything she puts into her system is automatically introduced into the system of the fetus and, if the substance is harmful, it constitutes assault upon the fetus on the same level as strapping me down and forcing drugs into my body. Moreover, life-endangering acts, such as parachute jumping, would place the un-consenting fetus in unreasonable danger. If the woman has no right to kill the fetus, she can have no right to jeopardize its life and well-being. Thus, if the fetus has rights, it is not merely a matter of prohibiting abortion; it means that the woman is criminally liable for harm befalling the fetus on the same level as she would be for harming an infant.

The important question about protecting the fetus is, of course, how will this be accomplished? There is no way that this can be done short of massive interference with the pregnant woman's civil liberties. Again, anti-abortionists protest that enforcement problems are not properly part of the abortion issue, that we are simply investigating the right and wrong of the matter. But anti-abortionists themselves go beyond this line by advocating laws to remedy the situation. Pro-choice advocates merely insist that this solution be clearly defined, especially with regard to whether anti-abortion legislation can be enforced without violating rights. For even if the fetus merited protection, such protection could not be rendered at the expense of innocent third parties. The impact of the anti-abortionist position on birth control is another unexplored implication of that argument. Since an individual with full human rights is said to exist at the moment of fertilization and since IUDs work by disrupting fertilized eggs, women who use these devices must be guilty of attempted murder, if not murder itself. Other forms of birth control which work not by preventing fertilization but by destroying the zygote would be murder weapons and doctors who supplied them would be accessories. As absurd as this sounds, it is the logical implication of considering a zygote to be a human being.

The anti-abortionist position is weak, riddled with internal contradictions, and dangerously wrong. It is a sketchy argument which does not address key issues. It uses the word 'rights" in a self-contradictory manner which denies the framework from which the concept derives meaning. Although the message is 'there ought to be a law,' anti-abortionists refuse to address the question of what this law would entail or how it would be enforced. I believe this refusal serves a purpose. It permits anti-abortionists to argue on the side of compassion and children without having to face the truly inhumane and brutal consequences of their theory. Self-ownership begins with your skin. If you cannot clearly state, "Everything beneath the skin is me; this is the line past which no one has the right to cross without permission," then there is no foundation for individual rights or for libertarianism.


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