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).

Update: see Christos Armoutidis, “Preargumentation Ethics and the Issue of Abortion,” J. Libertarian Stud. 28, no.1 (2024); and Oscar Grau, “On Argumentation Ethics, Human Nature, and Law,” in A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann & Stephan Kinsella (Houston, Texas: Papinian Press, 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
        • Kinsella, Legal Foundations of a Free Society (2023), chs. 2, 4, 23; “Objectivists on Positive Parental Obligations and Abortion,” The Libertarian Standard (Jan. 14, 2011)
      • 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? 
    • She said she had miscarriage — then got arrested under abortion law…
  • 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.
    • Memories of Meeting Rothbard in 1994
  • 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

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. [↩]