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KOL443 | Abortion: A Radically Decentralist Approach (PFS 2024)

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Kinsella on Liberty Podcast, Episode 443.

“Abortion: A Radically Decentralist Approach,” 2024 Annual Meeting, Property and Freedom Society, Bodrum, Turkey (Sep. 22, 2024). This will also be podcast soon at the Property and Freedom Podcast as PFP284. See: “Abortion: A Radically Decentralist Approach” (PFS 2024).

Panel discussion:

Notes below, followed by Youtube’s automatic transcript.

Abortion: A Radically Decentralist Approach

Stephan Kinsella

Property and Freedom Society

2024 Annual Meeting

Bodrum, Turkey

September 19–24, 2024

Alright, let’s have as much fun as we can with a topic like this.

Contentious issues among libertarians:

  • Anarchy vs. Minarchy
  • Forms of state: monarchy vs. democracy
  • Open borders vs. mass immigration
  • Intellectual Property (we are winning this one)
  • Israel vs. Gaza
  • Ukraine vs. Russia

Abortion: Pro-choice and Pro-Life

  • I’ve changed my own mind a bit on this issue, after becoming a parent: from pro-choice. to more sympathetic to pro-life arguments, and to my current decentralist view
  • Traditionally libertarians have tended to be pro-choice, including virtually all Objectivists, though there were always some minority pro-life voices (e.g. Doris Gordon of L4L).
  • In recent years many seem to be more conservative, and more friendly to religion, and many more opposed to abortion than in the past.
    • The LP removed its pro-choice plank in Reno in 2022 as part of the Mises Caucus takeover, the “Reno Reset,” arguing that the issue is not settled and each candidate should be able to adopt their own position on this issue.
  • On some issues it seems possible to make progress. Many libertarians come from conservatism, or sometimes leftism, moving at first towards libertarian minarchism and then eventually to libertarian anarchism.
    • I changed my mind on the IP issue and have managed to persuade a large number of people to adopt the anti-IP position.
    • Views change on the issue of open borders and immigration and on particular issues like Israel vs. Gaza and Russia v. Ukraine.
  • But it seems almost impossible for anyone to change someone else’s mind on the abortion issue.
    • The fact that this issue seems intractable, often rooted in deep lifestyle preferences or religious beliefs, is relevant, I think to how this issue is best solved in a political-legal sense.
      • See Loren E. Lomasky, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987), p. 91: “The intractability of the dispute … may itself be philosophically significant.”

There are the well-known arguments

Pro-choice

  • There is the modern, or feminist, argument: it’s my body.
    • Of course the response is that there is a baby inside which complicates the matter
    • For this reason even most pro-choice people do not not favor legality until birth
      • Ayn Rand: “abortion is a moral right-which should be left to the sole discretion of the woman involved.” (“Of Living Death,” The Objectivist, Oct. 1968, 6)
      • In Rand’s view, opposition to abortion arises from a failure to grasp both the context of rights and the imposition that child-bearing places on women. As she put it: “A piece of protoplasm has no rights-and no life in the human sense of the term. One may argue about the later stages of a pregnancy, but the essential issue concerns only the first three months.”
      • So even Randians recognize difficulty in the later stages of pregnancy

Pro-life

  • Then there is the religious-based pro-life argument
    • As this is religious, it is not exactly rational since people of different faiths can have different beliefs about souls, life, rights, and so on

Libertarian abortion arguments

Pro-Life

  • Doris Gordon of Libertarians for Life: Pro-life
    • she was a neo-Randian and had a secular argument against abortion.
    • However it ultimately was a cheap semantic argument about what it means to be “human”.
      • It’s a simplistic argument, as all semantic arguments tend to be
      • Doesn’t account for rights of non-humans, e.g. intelligent space aliens
        • Since it makes “being human” the standard for rights
        • Why would intelligent aliens have rights? They are not human
      • Why don’t animals have rights?
      • What is it about humans that gives rise to rights, and why to fetuses necessarily possess the features that gives adult humans rights?

Pro-Choice

  • Walter Block’s “evictionism”: Pro-choice
    • Somewhat convoluted, to my mind
    • Not clear whether it’s pro-life or pro-choice
    • Seems to be pro-choice in today’s world with our level of technology
    • Basic argument:
  • All humans have rights, by virtue of being human.
    • “We maintain that the fetus is an alive human being from day one onward, with all the rights pertaining to any other member of the species.” Walter Block & Roy Whitehead, “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” Appalachian L. 4, no. 2 (2005): 1–45
    • So far it’s similar to the argument of Doris Gordon
      • Semantic
      • Problem for both arguments: ignores what it is about human nature that gives rise to rights
      • It can’t just be “human genes”
      • What about intelligent space aliens? Wouldn’t they have rights?
    • This includes unborn fetuses since they “are also human”
      • “If a fetus is not a human, what is it? A monkey?”
    • So all humans have human rights, including baby humans and unborn humans (fetuses)
    • And yet the fetus is a trespasser
      • Block has convoluted arguments as to why the fetus is not invited, which is one of the arguments I have made
      • I have argued that the fetus is not a trespasser since it’s invited
        • More on this later—
      • The fetus, as a trespasser may be evicted, but only by the gentlest means possible
      • Unfortunately in today’s technology it is not possible to evict the trespassing fetus without killing it
      • So the pregnant mother is permitted to kill the fetus in order to evict (remove) it, even though its death is a side effect of this eviction process
      • Presumably if technology improves in the future and the mother can remove the fetus without killing it, she would have to do this and would not be permitted to kill the fetus
        • 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?
        • It would seem that if the mother was able to remove a fetus without killing it but only via invasive surgery, she would still have the option to use a less invasive method which would kill the fetus
        • So in the end “evictionism”, though is poses as a pro-life theory still ends up supporting the right to abort
      • 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.

My View

  • I was originally pro-choice but now that I’m a father I am not so callous about it and to think abortion is increasingly immoral the more developed is the fetus.
    • In my view, rights are a status that emerges from the possession of reason and the capacity to argue
      • It is not “being human” but rather having the nature that most adult humans share: reason
      • This approach is general enough to also handle the case of other intelligent species such as space aliens or other animals
        • But distinguishes humans from other non-sapient animals
      • Thus born children clearly have human rights
      • Hoppe, TSC: “… the ownership right stemming from production finds its natural limitation only when, as in the case of children, the thing produced is itself another actor- producer. According to the natural theory of property, a child, once born, is just as much the owner of his own body as anyone else.”
      • Whether late-term fetuses have rights is a harder question
        • Appears to be a “continuum issue”
      • In my view it seems reasonable to conclude that early-term fetuses do not have rightssince they only have the potential to develop reason
        • late-term fetuses are similar to babies and thus have whatever rights babies have
      • Note: To the extent late-term fetuses have rights, this means they are not trespassers, contra Block
        • They are instead invited
      • On Positive Obligations:
        • In my view, libertarianism does not oppose “positive obligations” or positive rights, but only unchosen positive obligations
        • If you see someone drowning in a lake you have no positive legal obligation to try to rescue them
          • This is not to say there is not a moral obligation
        • But if you push someone into a lake you incur a positive obligation to rescue them because your action created their peril and situation of need
        • Likewise babies are naturally helpless and parents have created this situation of need and dependency by procreating
      • So: If and when the fetus can be said to have rights then we can say one of the obligations of the parents is not to kill the fetus
        • Other positive obligations such as support
          • one reason I am sympathetic to the civil law doctrine of forced heirship
          • Better for the parents to be required to support their children than the community or the state
        • So in my view, a good argument can be made that late-term abortion is very similar or tantamount to infanticide
        • For most people such a conclusion means late-term abortion should be treated as a crime
          • Is this the case?

Intractability

  • There are both pro-life and pro-choice arguments
    • Pro-life: religious
      • the pro-life view that abortion is murder from conception is either based on religion or faith, or flawed semantic arguments (Doris Gordon’s “Libertarians for Life” that “humans have human rights because they are human”)
    • Pro-choice: Feminist, Randian, Evictionism
      • The feminist pro-choice view ignores the fetus’s rights and usually is pro-life in the later stages of pregnancy
      • Block’s evictionism is confused
        • It is also based on the “humans have human rights” argument
        • Yet it characterizes fetuses as trespassers even though they are invited
      • Reason-based rights arguments such as mine will also be rejected by those holding the other views
    • The argument seems to be uniquely intractable

Unique Status of Pregnancy

  • In addition we must recognize that there are several difficulties with treating abortion as a crime like murder or infanticide
  • A born baby is an independent person and can be protected by the same laws that protect other born humans
    • By contrast fetuses are fully dependent on the mother and not yet quite part of the moral community
    • “rights claimed for fetuses, children, or the mentally incompetent … must necessarily be urged on their behalf by others if they are to be pressed at all.” (Lomasky, p6)
      • All this means that when the legal system extends its protection to members of society, especially the dependent who did not create and do not enforce the legal and justice system, there needs to be good reasons to do so.
      • They are not automatically entitled to it.
    • “I shall offer an account of basic rights that is multivalent. By doing so I hope to avoid the troubles that plague theories of rights purporting to find in all rights holders some one essential property vouchsafed by nature (or Nature) such that it, and it alone, guarantees the possession of rights. Most, but not all, adult human beings are project pursuers. Therefore, they have reason to accord to themselves and to other project pursuers the status of rights holder. Unless there were project pursuers, there could be no basic rights. However, project pursuers are not the only holders of rights. Others, young children for example, also enjoy that status. They do so in virtue of the social relations to project pursuers in which they stand. They, as it were, piggyback on project pursuers. The development of this argument is found in Chapter 7.” (p. 40)
    • Birth marks a quantum leap forward in the identifiability of human beings. … participation in social relations that constitute one a recognizable individual for others takes a dramatic turn at birth. Before that event one exists in relative anonymity. … Birth is the transition from anonymity to public standing. … birth marks an abrupt alteration, not in some internal property but with respect to external relationships. It is the single great discontinuity that breaks what is otherwise a smooth curve. Therefore, it stands out as the indicated demarcation point constituting inception of membership in the moral community.” P.197–98
    • “both law and common morality do recognize birth as a pivotal moral event. Although abortion has historically been regarded in some quarters as an offense, it is almost invariably accounted a different offense than infanticide.” P.198
  • Policing infanticide is not radically different than policing normal homicide, but policing fetuside or abortion would require massive privacy and monitoring intrusions
    • How are outsiders even to know that a woman is pregnant if she keeps to herself and stays her own home?
    • Is she to be liable if she has bad health or eating habits and has a miscarriage? 
    • Doesn’t she ha ve enough to worry about already?
    • If there is a difficulty in the pregnancy and difficult choices to make who is better to make them other than the mother, her husband, and her doctor?
    • Is it the purpose of law to police unborn humans who have not yet become independent beings and fully integrated into the moral community?

The Decentralist Approach

  • Any legal system only has limited jurisdiction
    • The US has no jurisdiction over abortion policy in China
    • Texas has no jurisdiction over abortion policy in California
    • Even private legal systems have limited jurisdiction
      • Restricted to the locale, not worldwide, as a practical matter
    • Given the intractability of the abortion issue and given the unique status of the fetus as not quite yet a member of the moral community, given its dependence on its mother and family, and given the unique situation faced by the mother and the family’s unique and intimate role in this, given the difficulties of determining “continuum issues”, the obvious and best solution is simply to recognize that only the mother and her family have jurisdiction over this issue 1
    • If the family permits abortion and fails to “outlaw” it, that can be criticized just as Texans can criticize China’s abortion laws even though they have no jurisdiction over it and it’s simply not their business
    • Recognizing the family’s right to decide these matters does not mean that an abortion is “okay” it simply means it’s no one else’s business, and not the jurisdiction of an external legal system or community, whether the state or a private legal system
    • The “legal system” of a family that does not prohibit abortions can be criticized and ostracized, but the external community’s legal system should not have jurisdiction to reach it, until the child is born
    • This solution will not satisfy everyone but given the intractable nature of this issue, no one’s solution will
      • At least this approach is the most decentralized and the most compatible with reality and with a MYOB approach

Hoppe’s Decentralist Approach

  • I’ve been pondering this issue for almost 30 years
  • I dimly recalled Hans urging me to tackle this issue many years ago
  • In reviewing my notes, I realized that not only did he urge me to do this but that his own solution is the one that has finally occurred to me as the obvious one
  • One of my letters indicated I had a long phone call with Hans in Aug. 1995 about this issue, 29 years ago.
    • Hans suggested the best solution would be for the extended family to be equipped to mahe the decision about the appropriateness of an abortion, not the government, and not even the local community, as the family is best equipped to judge these things and it’s no one else’s business.
    • In 2011 I taught the Mises Academy course KOL158 | “The Social Theory of Hoppe: Lecture 6: Political Issues and Applications; Hoppe Q&A”.
      • In the final lecture I fielded Q&A with some input from Hans
      • My view: the more developed is the fetus the more immoral it is, until at a certain point is becomes more than just immoral and is aggression. Where to draw the line precisely is not possible,
      • and in any case, any legal prohibition on even late-term abortion would require either a police state or such intrusion into the private family life that it is not acceptable.
      • Therefore, even if we say that some late-term abortions are tantamount to infanticide, it is likely that this would not be prohibited legally in a free society. In essence, the legal system would put “jurisdiction” for such decisions at the family level itself.
      • Hoppe: “I essentially agree with you, and would emphasize in particular the counter-question: even if we grant that there might be something wrong, morally and/or legally, who is entitled to go after the mother? Who is the victim? Certainly not the state or the ‘public at large.’”
        • Hans’s input for (July-Aug., 2011), around 25minutes in, slides 18–19; youtube
      • Later that year, Hans spoke at The Ludwig von Mises Institute of Romania (November 8­-11, 2011)
        • Hoppe in Romania
        • Questioned about children, abortion, the state’s role and guardianship rights, Hans replied that abortion should be a family matter, not one for the state to be involved in.
        • This implies support for my view that even the local and external justice community has no jurisdiction.
      • I have put off this request by Hans for 29 years but I trust now he sees I have dealt with it as best I could.

Two concluding comments:

  • I was reared Catholic, attended Catholic schools for 12 years, was an altar boy—so Guido, please forgive me
  • Now that I have solved the difficult issue of abortion, I’m going to work on exempting Bitcoin from capital gains tax.

AUTOMATIC TRANSCRIPT FROM YOUTUBE

you might want to hold the
Applause to your what I say only
Libertarians get up early on a Sunday
morning and listen to a talk about
interest rates in a hypothet
hypothetical world and then abortion um
I I was I was going to start by saying
something like you know unlike Anarchy
and intellectual property the abortion
issue is kind of difficult but like wait
a minute only we would think that a war
is easy you know taxation is horrible
the state is bad Anarchy is obvious um
the Israel Gaza issue is easy Ukraine
and Russia that’s easy but abortion is
the one thing that we we don’t know yet
um um okay on this issue everyone has an
opinion on abortion probably so um I
kind of want to go through some common
arguments and some common libertarian
arguments um about this topic um I have
sort of changed my mind on this issue
over the years being a a parent um I’ve
become a little bit less stridently uh
pro-choice I used to be a randian and I
was like it’s just a clump of cells that
was my original view um but I become
more sympathetic to the pro-life
arguments in some ways uh I would say
that in my experience Libertarians um in
over the last several decades have t
typically tended to be uh pro-choice
right um almost all objectivist have
been pro-choice and most Libertarians
have in Pro pro-choice although there
have been some exceptions like there was
a woman named Doris Gordon um who was a
a secular uh Rand oriented object uh
libertarian but she was pro-life she
actually started this group called L l4l
Li Libertarians for
life um and my impression is that in
recent years with sort of the rise of
kind of a new form of paleo
libertarianism and the rise of the mises
Institute type um Libertarians inside
the libert Aran party in the US um
there’s more Pro pro-life views than
than than in the past in fact in
2022 um the libertarian party was taken
over by the so-called misas caucus and
they changed the platform to eliminate
the pro-choice plank that had been in
there for for a long time which which
upset a lot of people a lot of the
pro-choice types but the argument was
that listen it’s a contentious issue
among Libertarians so
the party shouldn’t take a stand on it
and let every let every candidate have
their have their own view
um but you know there’s lots of issues
where it’s possible to make progress
among Libertarians uh a lot of
Libertarians come from conservativism
and they become Libertarians or they
come from leftism and they and some go
through the phase of being a minarchist
and then they finally become an
anarchist so people can change their
minds I myself changed my own mind on
intellectual property about 30 years ago
when when I investigated the issue and I
became an anarchist as well uh about 35
years ago going from minarchy to to to
to Anarchy and you know some of my views
have even changed on the let’s say the
Ukraine and the Israel issue because of
listening to Professor hoa’s uh comments
has moved me in that direction as well
uh but it does seem like on the abortion
issue it’s almost impossible to change
someone’s mind on that issue um the
issue seems to be sort of intractable
right um because it’s rooted in deep
deep lifestyle preferences or religious
beliefs and it seems to be hard to make
progress on this so what of the the
well-known Arguments for for abortion um
the pro-choice argument of course is
sort of the modern or feminist view is
simply the argument it’s my body the
government shouldn’t be able to tell me
what to do about it but of course
there’s the complication that there is a
baby inside so that that makes it a
little bit harder um a Rand who was also
pro-choice of course she had an
interesting take and she said you know
um you have to uh uh you have to uh
favor the rights of the woman and she
says a pieace of protoplasm has no
rights and no life in any human sense of
the term but then she says one may argue
about the later stages of pregnancy but
the essential issue concerns only the
first three months I don’t think so I
think that I think the difficult issue
is what to do about the late term right
um so even even the randians seem to
admit that it’s difficult it’s a
difficult question at the later later
part of pregnancy um and then the
pro-life view is is more religious um
and the problem with with the religious
argument is not that it’s necessarily
wrong it’s just that it’s based upon
religious views and it’s not exactly
rational and it’s hard to know how to
appeal to someone with a different faith
if they don’t agree with you so it’s
hard to make progress uh with someone
who has a religious uh perspective on it
as well now what about libertarian
arguments as I said most Libertarians
have tended to be pro-choice
um but Doris Gordon who I mentioned
earlier was this Neo randian and she had
a secular argument against abortion I I
think your argument was really bad
though her argument was simply that um
uh unborn babies fetuses are humans and
therefore they have human rights so it’s
almost a semantic argument and you know
it’s kind of the simple the simplistic
argument is
like uh well if if a baby is not a human
what is it it’s not a monkey but that’s
not really an argument for for why you
should have rights because you’re human
um
because we most most people would would
say that if you have any defensive
rights based upon reason or rationality
there’s a capacity that humans have that
gives them the status of having rights
and it’s rooted in our reason and our
reasoning ability which means that if
there were another species like an
intelligent animal species or an alien
species from outer space they would also
have to have rights um but they wouldn’t
be human so it can’t be being human that
is the source of rights
uh it must be some some of the capacity
that humans happen to happen to have
right um now another interesting
argument about abortion is Walter
Block’s evictionism argument um which I
believe is extremely convoluted um it it
he sounds like he’s pro-life but he’s
really pro-choice because his argument
is basically this um um so Walter almost
takes Doris gorden’s argument which is
that unborn human babies have right
why because they’re humans and if
they’re humans they must have human
rights so he concedes that I guess even
a one- day old embryo would have rights
because it’s a human however um it’s
also a trespasser on the on the mother’s
body so the mother just like you can
evict a trespasser in your house you can
evict a a trespasser inside your body of
course he ignores the the inconvenient
fact that most babies are not actually
trespassers they’re actually invited by
the actions of the
of the mother and the and and the father
um except maybe in the case of rape but
in in most cases the fetus is not um
it’s a natural result of of sex um and
Walter wal Walter’s response to that
I’ve made that argument to Walter in the
past and his argument is well you can
only have a contract with someone that
that exists like when you invite someone
into your home but the baby doesn’t
exist until after after copulation so
it’s some kind of convoluted argument um
so in in Walter’s view um the mother can
evict the baby she now just like if you
had a trespasser in your in your in your
store or in your home you have to evict
it in the in the gentlest way possible
unfortunately under today’s technology
that means killing the baby so abortion
is Justified according to Walter um
interestingly I just before I came to
Turkey uh someone arranged for me to
debate Walter block on voluntary slavery
which we disagree about Walter believes
that U you can sell yourself into
slavery um um and I I agree with with
with um with I think Hans and with with
rothbard that the human rights to your
body are inalienable and such a contract
should not be enforcable uh so we had
this debate and Walter ended up saying
something like um um if a couple is
trying to have a baby and they can’t
conceive and they they implant their fer
ized egg into a surrogate mother then
that then that surrogate mother she
could not uh abort the child because she
has a con she’s basically sold her body
temporarily to the married couple so
according to Walter the a normal
pregnant mother who has a a trespassing
fetus that she invited by having sex can
can abort the baby but a surate Who Sold
herself into slavery to the parents
can’t I don’t know the whole thing is
like a little bit convoluted I
think
um and you know and there’s lots of
other problems with with this approach
um so for example if if technology were
to progress and we were able to take a
fetus out say middle midd in the middle
of the pregnancy uh and it wouldn’t kill
it um um would the mother have to do it
in that way instead of having a regular
abortion because like in a regular
abortion you you can have that done with
a pill let’s say and um it’s not
invasive but if her option was to
actually have a C-section and have the
baby taken out that way what if she says
well I don’t want to have a C-section
she would she still be able to kill the
baby so there’s lots of issues um uh
with that um my view has always been
that it seems to me pretty obvious that
human be adult humans have rights
because of our reasoning capacity you
know it’s it’s and this is part of
Professor hoa’s argument for rights uh
his discourse ethics too um it has to do
with the capacity to to make claims and
to make arguments um and that uh it
seemed it’s always seemed obvious to me
this is my personal view I’m not trying
to argue for this but this is always my
view is that a a very young term
fetus um has no rights because it’s it’s
not developed enough yet has the
potential to to have rights in the
future but it doesn’t yet so there’s
obviously a Continuum there’s some point
in which the the Young fetus has no
rights and then an infant does have
rights so somewhere in between is where
the line would have to be drawn um if
we’re going to call certain acts of of
fetocide type of crime
um um being a parent I’m I’m I’m I’m
even more sympathetic to the argument
that um an early an early term um
abortion for no reason is increasingly
immoral but it still shouldn’t be
illegal that was always my view right so
the more I thought about this and when
you realize that these things are really
just intractable um um I think the only
solution is to is to think about it like
this um um and by the way I want to
quote something Professor Hopper wrote
in in a theory of socialism and
capitalism where he said the ownership
rights stemming from
production of goods Finds Its natural
limitation only when as in the case of
children the thing produced is itself
another actor SL producer according to
the Natural theory of property a child
once born is just as much the owner of
his own body as anyone else and I agree
with that of course um but you see
there’s the implicit assumption there
that uh that birth is a sort of a
special moment that that separates when
we know for sure humans have rights and
when they don’t
um um so let me mention one other thing
too that I disagree with Walter about
and uh I’ve made this point before in
some of my some of my uh my my my
articles um Libertarians often say that
um unlike other competing political
philosophies we don’t believe in
positive rights we only believe in
negative rights we only believe in
negative obligations that is the
obligation not to invade someone else’s
property not to harm them but we have no
positive obligations um and so for
example it’s commonly said that look you
might have a moral obligation to try to
save someone you see drowning in a lake
but you don’t have a legal obligation to
do so um and but the problem with that
is what if you push them in the lake so
if you’re the one who’s responsible for
the Peril that someone is in then I
think you do have an obligation so
libertarianism is not against all
positive obligations we’re we’re just
we’re only against unchosen positive
obligations right so we have negative
obligations not to harm other people but
we also have obligations to to help
someone if we put them in position of
peril and I think you could make an
argument that voluntarily conceiving a
baby um which is in its natural state
helpless and dependent upon the mother
and the parents for survival even after
birth You could argue that that that
voluntary action does uh give rise to
some uh some uh some positive
obligations on the part of the parents
and you could argue that if you believe
the baby has rights that would include
the the obligation not to kill it
um so that’s where I sort of end up on
this um um as as as the right way to
look at it but then the question is what
should the law be should abortion be
legal illegal uh should it be legal in
the beginning but not in the late term
um and the way I look at this is it’s
it’s something I I realized in going
through my
correspondence um 20 29 years ago in
1995 I I found a letter I had written to
a friend and I was discussing a
conversation I had just had with
Professor haa on the phone and I I
believe Hans U we were discussing
argumentation ethics and rights and I
think Hans tried to urge me to write
something about abortion um and I it’s
29 years later but I’m finally getting
getting around to it
um um and hans’s view which he is I I’ve
heard him talk about I believe hans’s
view is similar to to mine it’s almost
jurisdictional issue and that’s that’s
the the title of my talk
um um we have to recognize there are
certain unique things about abortion
right um um you have the religious views
which are hard to argue with because
people have different positions there’s
the the feminist view uh but it just
means the issue is uniquely intractable
you’re never going to make progress with
anyone and we also have to recognize
like let’s say in in the US I’m I live
in Texas Texas might have a law on
abortion but they don’t they don’t have
any say so about California’s law and
they don’t have a say so about turkey’s
law or China’s law right so everyone
sort of recognizes unless you want a One
World Government there’s a sort of
jurisdictional issue to how crimes are
defined in a given area so for example
if you were
pro-life you might criticize China for
allowing abortion until the till the
until the end of the end of pregnancy
but it wouldn’t be your business to to
uh to police that in in China um and the
you could you could make the same
argument here so my Approach is is that
um um until the baby’s born we should
simply view the family unit and in
particular the mother as having the
jurisdiction over this issue so in other
words the legal Community would would
not be the outside legal community that
wouldn’t be relevant not until the
baby’s born when the baby’s born then
it’s subject to homicide laws and
infanticide laws and things like that
but up until that point it’s simply a
matter for the family to decide now you
could you could ostracize a family that
that has its own law which says abortion
is permitted until the ninth month but
it’s their business it’s not it’s not
your business so I think that actually
the way to solve the abortion issue is
to Simply Be hands off and let the
family unit itself be the one that makes
the decision um
um there’s a lot there’s a lot of
reasons uh that I think are in support
of this one is the fact that um if you
consider late term abortion to be
murder um that would require really
intrusive policing system to just detect
it because theoretically a woman could
get pregnant stay home for nine months
and no one would even know it’s it’s
sort of a private family matter um and
and and if you consider abortion to be
murder you know what if the mother
smokes or she drinks too much red wine
or she trips and she’s
negligent um and then the baby’s injured
because of that or the baby dies would
she be would she be liable for some kind
of negligent homicide in that case um I
mean don’t pregnant mothers have enough
to worry about already um without having
to worry about liability for something
that goes wrong during the pregnancy so
for all these reasons I think the best
solution is simply to recognize the
family is the best one to decide and and
just for the legal system to stay out of
it until the baby’s born Hans actually
did I I found something in 2011
Professor haa was uh teaching a course
uh in
Romania um and he was he was asked the
same question about uh abortion in the
states role and uh guardianship rights
and Hans hans’s view was that abortion
should be a family matter not one for
the state to be involved in um and so
that is that’s that’s my view too so I’m
just going to conclude by saying a
couple things I was reared Catholic I
went to Catholic school for for 12 years
years and uh so uh I was an alter boy
and all that so so gido I apologize for
this talk and
uh uh so now that I’ve solved the
abortion issue I’m going to try to uh
work on exempting bitcoin from capital
gains tax thank you very much
[Applause]
  1. A somewhat analogous argument is made in favor of the right to free speech even when the speech in question is false–the speaker himself has to be the one with the right to decide. As the judge in a recent case regarding Florida’s censorship of speech, the judge wrote: “The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is ‘false.’” Or, as he quoted Justice Robert H. Jackson: “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Dahlia Lithwick & Mark Joseph Stern, “Federal Judge Shoots Down Ron DeSantis’ War Against Free Speech“. It is also analogous to the right to self-defense: even when the law bans vigilante justice and “self-help” an exception is always made for self-defense when the cops are not available. []
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  • Pavel September 24, 2024, 8:21 am

    Stephan, thank you for this. Your logic very much resonates with my own moral intuition. I have a question though. You write: “The “legal system” of a family that does not prohibit abortions can be criticized and ostracized, but the external community’s legal system should not have jurisdiction to reach it, until the child is born”. You highlight “until the child is born”. Now, for the sake of argument, let’s imagine that the child is born, and it is born with some defects which in this particular community are considered very bad omen (albino?), and the family believes that the child needs to be sacrificed to their gods immediately. So, they collectively commit infanticide in accordance with their community beliefs. Their (small) community approves of the act. Does the “wider” community (which objects) have the right to interfere? Is this already-born baby “a part of the moral community”? Is the “the state or the ‘public at large” a victim in this case, or is it more like “China is not Texas jurisdiction” kind of situation? If late-term abortion prosecution is an unacceptable intrusion into the private family life, then why infanticide protection is acceptable? (Basically, why is it someone else’s business?). Or, to make the same question significantly broader –if a libertarian community discovers a community of cannibals (de facto another radically decentralised jurisdiction) who regularly eat members of their own community (and them only) — do the libertarians have the right to interfere?

  • Stephan Kinsella September 25, 2024, 9:54 pm

    If we agree that a born baby has rights, then yes killing it would be murder or infanticide and yes I think outsiders could interfere to protect the infant. It doesn’t at this point require invasive monitoring of the woman’s pregnancy.

    “Or, to make the same question significantly broader –if a libertarian community discovers a community of cannibals (de facto another radically decentralised jurisdiction) who regularly eat members of their own community (and them only) — do the libertarians have the right to interfere?”

    I would say so.

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