Machan's Little Libertarian Encyclopedia
Chapter 2: Abortion
The topic of abortion concerns the killing of what would under normal circumstances become a human infant — indeed, the dispute is about when this occurs. In fact the topic concerns when exactly a human being comes into existence, at conception (whereby all abortions would be homicide, or later, in which early ones would not be homicide).
Just to clarify, "pro-life" and "pro-choice" are both misleading labels. They are not at all descriptive. Pro-lifers are not actually supporting life per se — for they are not opposed to killing non-human life, nor killing human beings in self-defense or as punishment. Pro-choicers often want to defend the right to choose in very limited spheres. They oppose government interference in whether a woman continues her pregnancy but not, say, whether she should consume drugs.
Strictly put, libertarians can have no position on abortion as libertarians. This is because the libertarian holds only that whenever a human being comes into existence, killing it in other than self-defense must be prohibited. But some hold that in the first stage of pregnancy pregnant women carry not a human being but a potential human beings, akin to the relationship between a caterpillar and the butterfly it will become or a sapling that will grow into a tree. Some others hold that immediately after conception a human beings comes into existence. But libertarians have no theory as libertarians concerning which of the above view is right. For that one needs to enter into matters that are pre-political.
Here is how the pro-choice position would have it: The claim that a human being exists at conception or prior to the formation of the cerebral cortex seems impossible. Here is why: At conception only a "pre-embryo" exists. As biologist F. M. Sturtevant points out, this "consists of the trophoblast, and a few cells comprising the embryoblast." Indeed, he continues, "before day 14, when the embryo can first be said to exist, the embryoblast can develop into an embryo proper, a tumor, a hydatidiform mole, a choriocarionoma (i.e., cancer), twins, or triplets, or, in at least two-thirds of the cases, nothing at all (due to genetic defects)." As Sturtevant puts it, "until the primitive streak appears at day 14, there is no human individual." This implies that nothing with a distinctive identity even as a potential human being exists at that stage. Even after the second week an infant human being (unborn child) does not exist. Something that can become one, of course, does.
Does a human life exist at this point? "Human life" can mean any live element of a living thing, according to which usage any part of the being that will probably turn out to be or has become a human being can be considered living — an appendix, a limb, or any organ one clearly has the option to donate (such as an extra kidney). Even after brain death, for example, the organs that may be transplanted will be live human organs, exhibiting or manifesting human life.
Whether abortion, however, is homicide, let alone murder, depends on whether what is being killed is a human being not just human life. If killing human life alone constituted homicide, than destroying or killing a living human organ, after the death of the human individual whose organ it used to be, would amount to homicide.
Unless it is established conclusively that what is killed via abortion is a human being, the claim that homicide has been perpetrated via abortion is not proven.
Those who embrace the pro-life position hold, in contrast, that since from the moment of conception there is something that can only be classified as having a human identity, one that will last until its death, the being that emerges in however indeterminate way after conception is, in fact, a human being. Some, mainly those who hold certain religious beliefs, argue that at the point when egg and sperm unite, ensoulment occurs — the new entity gains its distinctive humanity, which is to possess a nature with dignity and moral significance.
Libertarians as such need to decide public policy and law based on which of the above arguments, in one or another of their nuanced form, is sound. One thing, however, about the libertarian's political perspective seems to favor a secular rather than theological approach to the topic of abortion or, indeed, any other topic. This is that rationales for any public policy in a free society need to be accessible to citizens as such. It would be sectarian and thus biased to rest public policy on elements of a given faith, one that is the province of only those who have been graced to hold it but not to those who have not been so graced.
Yet even among secular theorists that are both pro-life and pro-choice advocates. The pro-life view has several versions and besides what I have sketched earlier there is the consideration that treating the zygote or embryo as if it where a child is logically more prudent than the opposite course. Since we do not know when precisely the cerebral cortex develops in a fetus, the point at which a "rational animal" would emerge, it is prudent to treat the fetus as fully human from the start of pregnancy.
Pro-choice advocates reply that to be a human being requires a brain that enables something to think, to form ideas, theories, principles, etc., namely, the cerebral cortex. In the fetus this portion of the brain fully develops near the 24th week of pregnancy. The nearly born, just as babies, however, can and often do think, albeit at the very minuscule level, just embarking on the formation of some ideas — so partial birth abortions, so called, could only be performed in case the mother's life is in serious danger from carrying to full term. But this view implies, if true, that it is unfounded to accuse someone of homicide who has an abortion — or performs one-before the 24th week of pregnancy. To punish such a person for murder or even manslaughter is unjust and laws must prevent such actions. It is comparable to punishing someone for simply not believing something that is false, namely, that the fetus is a human being.
Some hold that a human being does not exist until society can recognize its independent existence, which would be after its birth. They stress that the traditional assignment of birth to emerging from the mother's womb indicates powerfully that it makes little sense to construe any pre-born stage as fully human.
Others argue, with specific appeal to libertarian concerns, that the pro-life position implies extensive law enforcement presence in the lives of couples. This is because if at conception a human being comes into being, then its rights would require protection from the legal authorities, something that would require intrusive monitoring of, for example, the results of all sexual intercourse. Were parties using protection? Did a human beings result? Moreover, if miscarriages occur, whether these come about through negligence or even malice aforethought would be of public concern. Gaining the information to make sure no one has been wrongfully killed would involve intrusiveness that libertarians generally abhor.
It needs to be noted that even if one holds that all abortions that are not homicide, they may not be morally unobjectionable. They must then be legally tolerated, however, because otherwise innocent people would be punished.
The libertarian awaits a resolution of this controversy. Without that, no libertarian stance can be definitive. Banning abortions prior to the 24th week or so of pregnancy may be unjust for libertarians, since it protects no one's right to life, liberty or pursuit of happiness but punishes those who refuse to carry on with a pregnancy, period, which is itself a severe rights violation. But if it is a gray area we face here, perhaps prudence requires that no abortions be allowed, lest we risk killing an innocent child.