Block, “Does Trespassing Require Human Action? Rejoinder to Kinsella and Armoutidis an Evictionism”

by Stephan Kinsella on September 13, 2025

Abortion Correspondence with Doris Gordon, Libertarians For Life (1996) (June 14, 2023)
KOL443 | Abortion: A Radically Decentralist Approach (PFS 2024) (Sept. 22, 2024)
Abortion: A Radically Decentralist Libertarian Solution (Grok)
Walter Block, “Does Trespassing Require Human Action? Rejoinder to Kinsella and Armoutidis an Evictionism,” MEST Journal (forthcoming 2025): Abstract: “Libertarian scholars Kinsella and Armoutidis criticize the libertarian theory of evictionism. This is a principled compromise between the pro-life and the pro-choice positions. Its conclusion overlaps with the former in the last trimester of pregnancy and with the latter in the first two trimesters. That is, the pregnant mother may expel the fetus from her body whenever she wishes but may not ever kill this preborn baby. This theory is predicated upon the notion that the unwanted fetus is a trespasser; an innocent one, to be sure. Thus, he may be expelled from her body, her private property, but not treated as a criminal, since he is innocent of any crime. Evictionism stands or falls on this one claim. If the fetus is not a trespasser, this solution to the abortion controversy is a failure. Kinsella (2023) and Armoutidis (2024) maintain, to the contrary, that trespassing is a human action, and that the fertilized egg, the beginning of human life, is capable of nothing such thing. This essay aims to refute their position.”
Rothbard, Editor response to James Sadowsky, S.J., “Abortion and Rights of the Child,” Libertarian Forum, XI, no. 4 (July-Aug. 1978). Rothbard writes: “to correct a misunderstanding, while Walter Block and I agree on many things, we are not a monolith. In contrast to Walter, who agrees that the foetus is human, I simply made the assumption for the sake of argument, in order to grant the anti-abortionists their best case. In fact, if I had to “vote” on the issue, I would probably say that the foetus only acquires the status of human upon the act of birth. If so, then of course the foetus has no rights, and the thorny abortion question would be eliminated forever. It seems to me that the problem with the Block-Sadowsky thesis of asserting the foetus to be human is that that act of birth, which I had always naively assumed to be an event of considerable importance in everyone’s life, now takes on hardly more stature than the onset of adolescence or of one’s “mid-life crisis.” Does birth really confer no rights?”

Walter Block sent me a draft article “Does Trespassing Require Human Action? Rejoinder to Kinsella and Armoutidis an Evictionism,” MEST Journal (forthcoming 2025) and “invited” me to respond, whatever that means (I guess it means: “please change your priorities to suit my goals and spend your time writing this the article I want you to write instead of whatever article you were planning on writing”), presumably in aid of his stated goal of publishing 1000 peer reviewed or law review articles. ¹ I assume he counts “MEST Journal,” whatever that is, as peer reviewed even though it seems unlikely it is actually refereed (he has four articles in 2025 alone in that journal). ² I know from personal experience editing Libertarian Papers for ten years and from other publishing and peer reviewing experience how difficult and time-consuming it is. There is no way MEST Journal publishes this many papers and actually has them peer reviewed. But no matter.

Walter for some reason chose to respond to my informal blogpost from over two years ago, Abortion Correspondence with Doris Gordon, Libertarians For Life (1996) (June 14, 2023), and ignored more recent KOL443 | Abortion: A Radically Decentralist Approach (PFS 2024) (Sept. 22, 2024) (and Abortion: A Radically Decentralist Libertarian Solution (Grok).).

No time to reply to or comment in detail on Walter’s article but I probably already provided my reasons as to why I disagree with his approach, but in short they are (many already pointed out in Abortion Correspondence with Doris Gordon, Libertarians For Life (1996)):

He provides no argument for why humans have rights from conception.
- [Update: Rothbard, Editor response to James Sadowsky, S.J., “Abortion and Rights of the Child,” Libertarian Forum, XI, no. 4 (July-Aug. 1978). Rothbard writes: “to correct a misunderstanding, while Walter Block and I agree on many things, we are not a monolith. In contrast to Walter, who agrees that the foetus is human, I simply made the assumption for the sake of argument, in order to grant the anti-abortionists their best case. In fact, if I had to “vote” on the issue, I would probably say that the foetus only acquires the status of human upon the act of birth. If so, then of course the foetus has no rights, and the thorny abortion question would be eliminated forever. It seems to me that the problem with the Block-Sadowsky thesis of asserting the foetus to be human is that that act of birth, which I had always naively assumed to be an event of considerable importance in everyone’s life, now takes on hardly more stature than the onset of adolescence or of one’s “mid-life crisis.” Does birth really confer no rights?”]
I disagree with his view that you cannot have obligations to children since they were not alive yet when your actions gave rise to the obligation
- I gave examples of how you can be liable to someone for actions you performed before they are born
- These obligations do not stem from contract, exactly, but from action
- Walter seems to be basing his views on a theory of contract not consistent with Rothbard’s title-transfer theory of contract, which he elsewhere claims to support ³
“Left unanswered are questions such as: suppose the mother could have the abort the child with a normal noninvasive procedure that kills the fetus, or she could remove the fetus by C-section without killing it, but she would have to undergo anesthesia and serious surgery. Can she only evict the fetus via C-section, or may she use the less invasive procedure that ends up incidentally killing the baby?” ⁴
“One aside: in my recent debate with Walter about voluntary slavery (KOL442), Walter says that if a couple pays a surrogate to have their baby, then they can force her not to abort since she has partially sold her body to them; I suppose a husband could do the same with his wife. So only in the case of women voluntary enslaving themselves can abortion be prohibited. Make of this what you will.” ⁵

If I find time to reply further I will, but I am now preparing for my talk and the upcoming PFS meeting next week in Bodrum, Turkey. ⁶

***

A few quick comments:

My two critics, Kinsella (2023) and Armoutidis (2024), reject the notion that the fetus can be a trespasser and thus a violator of the private property rights of his mother.

Not quite right. I do not believe I have discussed in detail the issue of a pregnancy by rape, but only in cases where the conception was the result of voluntary action by the mother.

Walter also writes:

The implication, here, is that since the fetus lacks “…intelligence, conscience, self-awareness, or other characteristics such as reciprocity, language, discourse, reason, social nature or social setting,” he8 also lacks rights. But this argument is far too good. It proves far too much. For example, the comatose person is without reason. The sleeping person has no language. The last thing on the mind of the two-week-old baby is reciprocity; rather, for him, it is me, me, me. The person running a marathon in the last few miles is so winded, he cannot engage in any discourse; he can barely breathe. Given that this logically implies that these folk have no rights, it would not be murder to put a bullet in their heads. This conclusion is obviously highly problematic.

Walter here provides no positive argument for rights. Nothing to show that rights come from being human; this would imply non-human sapients, such as other evolve terrestrial animals, AI, or extra-terrestrials, cannot have rights. ⁷ To argue that zygotes have rights you need to do more than show that that they are humans and simply assume that humans have rights because they are humans.

***

See also Stephan Kinsella, “A Tour Through Walter Block’s Oeuvre” (May 9, 2024):

Forestalling and Evictionism/Abortion

Also interesting is that Walter tries to connect his forestalling theory to his abortion and evictionism views (discussed below). As noted above, he argues that the donut-parcel homesteader prevents or “forestalls” someone from homesteading the land enclosed by the donut-shaped land. He is controlling this land, as if he was an owner, even though he did not bother actually homesteading it, thus committing the libertarian “crime” of forestalling. And likewise, he argues, the parent of a baby, although he has no positive obligations to support the child, must permit third parties to rescue the child. Otherwise he is also “forestalling” the homesteading of the “now unowned” baby.[33]

[33] This is discussed further in the “Evictionism and Abortion” section below. See Block, “Libertarianism, Positive Obligations and Property Abandonment: Children’s Rights,” pp. 281–82. See also other articles by Block on abortion, such as “Terri Schiavo,” J. Libertarian Stud. 22, no. 1 (2011; https://mises.org/library/terri-schiavo): 527–36; Walter Block & Roy Whitehead, “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” Appalachian J. L. 4, no. 1 (2005): 1–45; “Stem Cell Research: The Libertarian Compromise,” LewRockwell.com (Sep. 3, 2001); and “Toward a Libertarian Theory of Abortion,” The Libertarian Forum 10, no. 9 (Sep. 1977): 794–95.

…

Evictionism and Abortion

One of Walter’s more controversial arguments concerns abortion. His theory, evictionism, argues that the fetus inside a pregnant woman is a trespasser, and she is entitled to “evict” it, using the least harmful means possible.[41] If this means killing it, so be it, but Walter claims he is not pro-abortion or pro-choice.

His argument, in sum, is that fetuses have rights from the moment of conception, since they have “life” (here, his argument is similar to that of Doris Gordon and others at Libertarians for Life (l4l.org), who argue that fetuses have the same rights as adults, since they are all “human,” and thus all have the same “human rights”). But pregnant mothers have rights too, and the mother has the right to evict the fetus since it’s a trespasser. The eviction must be done in the gentlest way possible; but with current technology, it is not possible to evict a fetus without killing it, so it’s permissible to kill it, but only for the purpose of evicting it. If we ever had technology that permitted eviction without killing, then the mom could not kill the fetus.[42] But in today’s world, she has the right to evict it even if that means killing it, i.e., abortion. So he is de facto pro-choice, or what he calls “free choice,” which he views as lying between the extreme pro-choice and pro-life positions.

In response to the counterargument that the fetus is not a trespasser but instead is an invitee,[43] Walter responds that there can be no invitation “contract” formed with the fetus during the act of copulation since the fetus does not exist yet. I disagree with Walter and Doris Gordon that rights come from being human; a murderer is a human, but has forfeited all, or some, of his rights; and an intelligent space alien would also have rights even though it’s not human. I also disagree that a fetus is a trespasser and that it cannot be an invitee since there is no person for the mom to make a contract with at the moment of conception. I believe this argument is based on a faulty view of contract that is at odds with Rothbard’s title-transfer theory of contract, which Walter elsewhere expresses agreement with.[44] Contracts are not binding promises; they are transfers of title to owned resources. The reason the fetus is not a trespasser is not because there is “a contract” with it, it is because of the causal role played by the mother in causing the fetus to exist inside her.

Incidentally, my own “solution” to the abortion issue is to simply recognize that until the baby is born, the legal jurisdiction over this issue should lie with the mother and the family, instead of the broader legal community, due to the private nature of this issue and surveillance and other concerns. Just as a legal community in Kansas would have no jurisdiction over crime in, say, Turkey, so outsiders ought to have no jurisdiction over criminal matters related to pregnant mothers within their own homes.

[41] See, e.g., Walter E. Block, Evictionism: The compromise solution to the pro-life pro-choice debate controversy (Springer, 2021); idem, “Toward a Libertarian Theory of Abortion,” The Libertarian Forum 10, no. 9 (Sep. 1977; https://mises.org/library/complete-libertarian-forum-1969-1984): 6–7; idem, “Libertarianism, Positive Obligations and Property Abandonment: Children’s Rights,” Int’l J. Social Econ 31, no. 3 (2004; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1889454): 275–86; Walter Block & Roy Whitehead, “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” Appalachian L. Rev. 4, no. 2 (2005): 1–45; Walter Block, “Abortion Once Again; a response to Feser, Goodwin, Mosquito, Sadowsky, Vance and Watkins.” J. Constitutional Research (Brazil) 4, no. 1 (2017; https://revistas.ufpr.br/rinc/article/view/50328): 11–41. See also this interchange: Jakub Bozydar Wisniewski, “A Critique of Block on Abortion and Child Abandonment,” Libertarian Papers 2, art. no. 16 (2010; http://libertarianpapers.org/2010/16-wisniewski-block-on-abortion); Walter E. Block, “Rejoinder to Wisniewski on Abortion,” Libertarian Papers 2, art. no. 32 (2010; http://libertarianpapers.org/32-rejoinder-wisniewski-abortion/); Jakub Bozydar Wisniewski, “Rejoinder to Block’s Defense of Evictionism,” Libertarian Papers 2, art. no. 37 (2010; http://libertarianpapers.org/37-rejoinder-blocks-defense-evictionism/); Walter E. Block, “Response to Wisniewski on Abortion, Round Two,” Libertarian Papers 3, art. no. 4 (2011; http://libertarianpapers.org/4-response-wisniewski-abortion-round-two). See also Kerry Baldwin, “what is evictionism? walter block’s response to abortion,” mere liberty (date unknown; https://mereliberty.com/lci/what-is-evictionism-blocks-response-to/); and idem “present objections to walter block’s evictionism,” mere liberty (date unknown; https://mereliberty.com/lci/objections-walter-block-evictionism). See also Walter’s SohoForum debate on Evictionism with Kerry Baldwin (Dec. 8, 2019; https://www.thesohoforum.org/walter-block-vs-kerry-baldwin; Youtube: https://youtu.be/OKU_xutF-eQ?si=i2H9OIHe3Hg5czer). See also J. Daniel Hammond’s critical, “Book Review” [of Block, Evictionism], Independent Review 27, no. 1 (Summer 2022; https://www.independent.org/publications/tir/article.asp?id=1735); and also the Wikipedia entry for Evictionism (https://perma.cc/UYW3-X73G).

[42] The possibility of such a “transoption” is the premise of libertarian sci-fi author Victor Koman’s book Solomon’s Knife (Franklin Watts, 1989).

[43] See, e.g., Stephan Kinsella, “How We Come to Own Ourselves,” in LFFS, pp. 50–51 (arguing for positive parental obligations), and idem, “Objectivists on Positive Parental Obligations and Abortion,” The Libertarian Standard (Jan. 14, 2011; https://stephankinsella.com/2011/01/objectivists-on-positive-parental-obligations-and-abortion).

[44] For more on this theory, see Stephan Kinsella, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” in LFFS.