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Block on Abortion (Mises, 2006)

From Mises Blog:

Block on Abortion

10/02/2006
Fresh online: Walter Block & Roy Whitehead, Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” Appalachian Law Review (2005) 4 (2) 1-45.

Comments (48)

  • Curt Howland
  • I was arguing recently with someone that said that “only through government can people with different opinions live together.”

    How can anyone hold that opinion in the face of the world around them? Every time government steps in, violence erupts.

    In those situations where government is explicitly denied any perview, such as the United States and the 1st Amendment prohibition on Federal government interference with religion, is there even the _opportunity_ for various opinions to live side by side without hostility. As soon as anything religious is brought into the mix, such as the objections to abortion, violence ensues.

    Every time government steps into a problem, it removes the possibility of peaceful disagreement, because one position or another is being enforced by law, which means by coercive force. Violence.

    When government has a say on a subject, it is self-destructive to say “I don’t care”, because the people who do care are going to carry the “political” discussion their way, and then impose it on me whether I like it or not. No wonder countries erupt in violence as soon as a “government” is going to be formed, like Somalia and the Balkins.

     

     

     

     

  • Published: October 2, 2006 2:14 PM

  • Roger M
  • I think Dr. Block does a nice job of presenting both sides of the debate, and should science rescue us, the eviction position will be nice. I know many pro-lifer’s like me would be very happy with a laws that limited abortions to cases of incest and rape since most abortions are simply a method of birth control.

    I’m not as pessimistic as Dr. Block on the current situation. Roe v. Wade would never have become law, except in a few states, had the US Supreme Court not forced its will upon the people. (Did the Supreme “rape” American values?) Within a few years I believe a more conservative court will overturn it and let states decide.

    I still have a problem with the libertarian denial of the right to life. That was a fundamental assumption of natural law and a member of the sacred trinity of rights to life, liberty and property (Jefferson changed it to pursuit of happiness for some reason.) I realize it messes up the neat symmetry of a property-based code of conduct, but evicting it because it smells like positive law is a little disgusting.

  • Published: October 2, 2006 2:44 PM

  • Dennis Sperduto
  • Stephan, thanks for making the article available.

    However, page 1 of the article, the page that begins with “Background” (not the cover page), prints out blank.

  • Published: October 2, 2006 2:53 PM

  • Sione Vatu
  • Roger M

    It is not possible to justify a right to life by coercing someone else to support it by their effort; no right to life at someone else’s expense.

    Talofa!

    Sione

  • Published: October 2, 2006 4:50 PM

  • Michael Taylor
  • Sione,

    No convenience at someone else’s expense, either.

    Remember, a murder is committed with each abortion. And involuntary loss of judicially innocent life is certainly an expense.

    Michael Taylor

  • Published: October 2, 2006 5:35 PM

  • Dennis Sperduto
  • Sorry for my previous posting. I was able to print out the page in question on my home computer; the problem must of been with my computer and/or printer at work.
  • Published: October 2, 2006 5:39 PM

  • pro-lifegirl
  • Something for Pro-lifers to concider……

    Over 3,500 terminations per day, 1.3 MILLION per year in the United States alone.
    50 or 60 MILLION per year World Wide.

    I am a pro-lifer who has no religious convictions at all . I didn’t need the fear of god or anything else to come to my decision, just a good sense of what is right and wrong.
    You see we were all once a fetus. Is it beyond the realm of possibilities that when your mother first learned she was carrying you, she may have considered her options? What if she had decided to terminate? Would that have been OK?
    You would not exist, if you have children they would not exist, and your (husband or wife) would be married to someone else. You would have been deprived of all your experiences and memories. In this day and age with terminations being so readily available and so many being carried out, if you make it to full term
    you can consider yourself lucky. Lucky you had a mother that made the choice of life for you. Don’t you think they all deserve the same basic human right, LIFE?
    I’m all for contraception, prevention is certainly better than termination.
    Did you know you can get an implant that is safe, 99.9% effective, and lasts for three years? Just think girls not even a show for three years, wouldn’t that be great? I think too many people rely too heavily on the last option (abortion), I think if abortions weren’t so readily available people would manage their reproductive system far better resulting in a fraction of the number of unwanted pregnancies.
    World wide there are over 50 MILLION aborted pregnancies each year. In America 3,500 terminations carried out every day, that’s over 1.3 million every year, 50% of all cases claimed that birth control had been used, 48% admitted they took no precaution, and 2% had a medical reason. That’s a staggering 98% that may have been prevented had an effective birth control been used. Don’t get me wrong, I suspect the percentages in Australia would be much the same.
    Just a lot of unnecessary killing.

    At the point of conception is when life began for you. This was the start of your existence. Your own personal big bang. Three weeks after conception heart started to beat. First brain waves recorded at six weeks after conception. Seen sucking thumb at seven weeks after conception.

    I am convinced that in the not too distant future, people will look back at many of the practices of today with disbelief and horror.

     

    Want to know how to find humanity-?

    True humanity can only be achieved, by concidering others/ caring about others, as much as, if not more than yourself.

    Until we do we are no more than an uncivilisation, with all the uncivilised things that we do…

  • Published: October 2, 2006 6:39 PM

  • David C
  • I think it needs to be noted that you can’t have government where you don’t have “Human Action”, or free will as I call it. For example, if we were all destined by circumstances, like animals, then written law has no meaning.

    Well, as awfull and immoral as I think abortion is, the bottom line is that they (the fetus) are clearly not acting on free will, and protecting the liberty of a fetus is outside the scope of government. I would say the law of the jungle applys to abortion. The parents who abort fetuses – their belief systems will have no generational influence. They will suffer the natural loss of not having that child. (most parents know what loss I’m talking about) They will have the disrespect, or feel the need to hide their choices from individuals who understand the value of human life. They will suffer the guilt of knowledge.

    In fact, the birth of a fetus is probably a very generous cutoff because arguably children have no free will till several years after birth. But since the respect of human dignity is so important, and protection of the childs rights no longer requires coercing a woman to use her body, and the commodity value of the elements in the child not high. In fact, I would argue that the date of birth is natures way of saying when the childs rights to live override the mothers rights to control her body.

    I still think abortion is an awfull sin, but that’s between the mother and God. Hell, I see people make poor moral decisions every day when they turn on the afternoon soaps, but that doesn’t mean we should haul in the government stick a gun to their head and make them watch what we tell them to.

     

     

     

  • Published: October 2, 2006 10:37 PM

  • Sione
  • Michael

    Your comment does not make sense. Convenience does not come into it. The fundamental point is that you can’t justify forcing one individual to support another. There is no such right.

    Sione

  • Published: October 3, 2006 12:30 AM

  • Sione Vatu
  • pro-lifegirl

    Most of what you have written is irrelevant to the topic.

    The number of people who make a particular decision and act in a particular way does not make that decision, or action, correct or incorrect. It just means that certain people have decided or acted in a particular manner.

    You wrote:

    The answer is yes. Of course your mother was free to consider her decisions and of course she would have been well within her rights to terminate a pregnancy should she have so decided. There was no “you” at the time. There was a foetus but was that foetus conscious? No. Was it able to think, able to form memories, capable to gain experience and learn? No. Was it self aware? No. The answer is no, not yet. There was no identity of “you”.

    What you need understand is that a potential is not an actual. Your mother’s decision was down to whether the potential to produce a baby in the next few months was out-weighed by other considerations in her life. Her choice and hers alone to make.

    You wrote:

    So what? Consider this. Had your father worn a rubber on the night you were to have been conceived, you would not exist. Same goes for your twenty plus siblings. Or are there no such. So then, what of it?

    Potential and actual should not be confused. They are not the same.

    Had you considered that every egg you allow to escape your body unfertilised is a potential “someone who does not exist”? And their potential children will not exist either? And their potential wives or potential husbands will (if they exist) be married to someone else. And they might have been the potential person who potentially had the cure for all the diseases that plague the World and one of their children’s children might have gone on to become the President of the Potential States of the World and potentially delivered peace and prosperity to all men (potentially) and all women (possibly) as well. It’s all your fault!

    Do you remember the old Monty Python song, “Every Sperm is Sacred”? Well then, that’s your argument right there.

    Remember, a potential is not an actual.

     

    A non-existent has no experiences or memories. They simply do not exist. A non-existent can’t be “deprived” of anything. You are confusing a potential with an actual.

    you can consider yourself lucky. Lucky you had a mother that made the choice of life for you.>

    What choice your mother made was hers to make at the time. “You” as a conscious thinking entity did not exist. Had the pregnancy been terminated “you” would not have known about it anyway.

    What you have to deal with now is the fact that you do exist; not that maybe, possibly, perhaps, could be, you might not have existed.

     

    What is “they”? What precisely are you defining as “human”? What essential attributes are necessary? And what are you trying to define as a “right”?

    BTW don’t all those wasted sperm and eggs deserve the same basic human right, LIFE? What about tumour cells? Be very careful answering that because there is little to distinguish certain tumour cells from those of a foetus. Do cells have a right to LIFE?

     

    Ah, so an individual cell does have a right to LIFE. False! At that point all you can state is that the DNA that would allow a physical being to be formed that had the potential to become “you” was formed. “You” did not come into existence as a conscious, self-aware, volitional person until many months after that. In fact “you” did not exist until your brain was mature enough to operate in a certain manner. That time did not occur until months after the birth.

    And finally the best, last of all:

    No. It was your parents who experienced that at the time. One would hope they enjoyed it.

    Talofa!

    Sione

  • Published: October 3, 2006 1:40 AM

  • Sione Vatu
  • Something went wrong with my forst attempt to post this- 2nd try.

    pro-lifegirl

    Most of what you have written is irrelevant to the topic.

    The number of people who make a particular decision and act in a particular way does not make the decision or action correct or incorrect. It just means that certain people have decided or acted in a particular manner.

    You wrote: “You see we were all once a foetus. Is it beyond the realm of possibilities that when your mother first learned she was carrying you, she may have considered her options? What if she had decided to terminate? Would that have been OK?”

    The answer is yes. Of course your mother was free to consider her decisions and of course she would have been well within her rights to terminate a pregnancy should she have so decided. There was no “you” at the time. There was a foetus but was that foetus conscious? No. Was it able to think, able to form memories, able to gain experience and learn? No. Was it self aware? No. The answer is no, not yet. There was no identity of “you”. What you need understand is that a potential is not an actual. Your mother’s decision was down to whether the potential to produce a baby in the next few months was out-weighed by other considerations in her life. Her choice and hers alone to make.

    You wrote: “You would not exist, if you have children they would not exist, and your (husband or wife) would be married to someone else.”

    So what? Consider this. Had your father worn a rubber on the night you were to have been conceived, you would not exist. Same goes for those twenty plus siblings you do not have.

    Had you considered that every egg you allow to escape your body unfertilised is a potential “someone who does not exist”? And their potential children will not exist either? And their potential wives or potential husbands will (if they exist) be married to someone else. And they might have been the potential person who potentially had the cure for all the diseases that plague the World and one of their children’s children might have gone on to become the President of the Potential States of the World and potentially delivered peace and prosperity to all men (potentially) and all women (possibly) as well. It’s all your fault!

    Do you remember the old Monty Python song, “Every Sperm is Sacred”? Well then, that’s your argument right there.

    Remember, a potential is not an actual.

    “You would have been deprived of all your experiences and memories.”

    A non-existent has no experiences or memories. They simply do not exist. A non-existent can’t be “deprived” of anything. You are confusing a potential with an actual.

    “In this day and age with terminations being so readily available and so many being carried out, if you make it to full term
    you can consider yourself lucky. Lucky you had a mother that made the choice of life for you.”

    What choice your mother made was hers to make at the time. “You” as a conscious thinking entity did not exist. Had the pregnancy been terminated “you” would not have known about it anyway. What you have to deal with now is the fact that you do exist; not that maybe, possibly, perhaps, could be, you might not have existed.

    “Don’t you think they all deserve the same basic human right, LIFE?”

    What is “they”? What precisely are you defining as “human”? What essential attributes are necessary? And what are you trying to define as a “right”?

    BTW don’t all those wasted sperm and eggs deserve the same basic human right, LIFE? What about tumour cells? Be very careful answering that because there is little to distinguish certain tumour cells from those of a foetus. Do cells have a right to LIFE?

    “At the point of conception is when life began for you. This was the start of your existence.”

    False. At that point all you can state is that the DNA that would allow a physical being to be formed that had the potential to become “you” was formed. “You” did not come into existence as a conscious, self-aware, volitional person until many months after that. In fact “you” did not exist until your brain was mature enough to operate in a certain manner. That time did not occur until months after the birth.

    And finally the best, last of all: “Your own personal big bang.”

    No. It was your parents who experienced that at the time. One would hope they enjoyed it.

    Talofa!

    Sione

  • Published: October 3, 2006 1:50 AM

  • Ben
  • While I enjoyed much of this paper, I don’t understand how Block and Whitehead can possibly base their pro-choice position on the notion that a developing fetus is a trespasser, or parasite. The fetus does not attach itself to the mother’s body independently of the mother’s actions; clearly, a fetus only implants itself in the mother’s body after the mother has voluntarily chosen to have sex (assuming that she was not raped). Does it not make sense that implicit within the woman’s decision of have sex was a choice to produce a baby? Block and Whitehead, unfortunately, base their entire pro-choice argument on a seemingly absurd premise that their is no relationship between sex and the creation of a baby.
  • Published: October 3, 2006 7:59 AM

  • Roger M
  • Maybe most people can’t articulte it, but we all suspect that human life is different from animal life and property. That’s why the conflation of all moral values to property rights by libertarians can, at times, seem disgusting. I know that libertarians have worked out their logical system to the conclusion that it requires no one to rescue a drowning person. But the average person will find that disgusting, as I do, because a drowning person is not the same thing as a sinking bar of gold.

    So after Dr. Block’s brilliant and moving defense of an unborn baby as being human, for him to argue that it’s a mere trespasser or “parasite” seems odd at best. To call them parasites dehumanizes them and opens the path to any kind of treatment being morally acceptable.

    Trespassers are usually adults with options. Why do we consider crimes against children to be worse crimes than crimes against adults? Because children are more vulnerable. As Dr. Block argued, unborn children are the most vunerable and as such, deserving of even greater consideration.

  • Published: October 3, 2006 8:40 AM

  • TokyoTom
  • I support the libertarian principles that underly the speculation in the Block and Whitehead paper, even though I would quibble with various aspects and do not think it is conprehensive. I certainly feel that the loss of all the human life that abortion represents is tragic, but even if all developing fetuses were given the same protection as those who have had the good fortune of being born, our individual rights to not include a duty for anyone else to support us. This is key, and Sione is right on this.

    Those who are strongly anti-abortion but who are unwilling themeselves to financially bear the costs of raising the children who will be born are in effect trying to use the power of the state to force others (the mothers, any competing children and the father, if there is any around) to bear the costs of the policies they favor.

    Block and Whitehead are in essence asking pro-lifers to put their money where their mouth is. I hope that tey will rise to the call, but I expect that this will happen only to a limited degree, because who care the most about saving all human life will in effect end up subsidizing the reproduction of others – there will be simple too many fetuses to go around, and one negative effect will be to subsidize the irresponsibility of women who would prefer to have others care for their offspring.

    The argument over whether a fetus is “human” is of course irrelevant from this perspective, as well as being absurd as a scientific matter. Of course the fetus is human – it carries only human genes and, more importantly, it is diploid and carries a full complement of genes from both the father and mother. This allows us to distinguish it from ova and sperm, each of which is technically also a separate human life, but by itself incapable of developing into a full, diploid human (we are not parthenogenic, like certqin other vertebrates)

    As a side note, I think that Block and Whitehead`s argument against RU-236 has its factual premises mistaken. The drug doesn`t kill the embryo, but simply prevents implantation in the uterus. Thus they should see the drug as a permissible eviction drug. As a related matter, science tells us that something like 1/4 to 1/3 of all fertilized ova naturally fail to implant.

    There are other issues I`ll have to address later.

  • Published: October 3, 2006 8:49 AM

  • Peter
  • Does it not make sense that implicit within the woman’s decision of have sex was a choice to produce a baby?

    No, of course not. If she wanted to have a baby, she wouldn’t have an abortion, would she?

    Most people don’t intend to have a baby most of the time they have sex! [And a good thing, too – the world population would be 60 quintillion by now if they did! :)]

  • Published: October 3, 2006 9:06 AM

  • TGGP
  • I think Block makes a lot of good points on eviction (if such technology existed, my position would be the same as his). However, I still dissagree with him. If you wake up connected to a violinist, neither you nor he has the right to cause the death of the other by removing them from the kidney they are using. If Ernst Blofeld drops James Bond from a helicopter into my raft, which is in water infested by sharks in a blood frenzy, neither of us has the right to kick the other out. Were another raft available, I could kick Bond off of mine and into it. All those examples are analogies to pregnancies resulting from rape, which are a tiny minority of all aborted pregnancies (conception and illegitimacy both rose after Roe, as use of contraceptives declined). A pregnancy not resulting from rape would be like if I placed Bond on my raft while he was unconscious. He cannot consent to this action, so there can be no contract, but I did consent to placing him on it.

    I also think Block is too dismissive of the possibility of anti-abortionists from achieving their goals without changing strategy. Anti-abolitionists did not need to change their philosophical stance, but it did take them a long time to achieve their goals. In addition, the “Roe effect” means that groups that oppose abortion (and tend to be less keen on contraception) will grow in size and have more political power. It has been said the the recent generation of youths is the first to be more anti-abortion than its predecessors, and this process may well continue.

    That’s probably the most I’ve written about the legality of abortion without ranting about “substantive due process”, “the right to privacy” or interpretations of the 10th and 14th amendments. Usually that’s what ticks me the most off, even though common sense would seem to dictate that I’d be most enraged by what I believe to be ongoing and legally sanctioned mass murder.

  • Published: October 3, 2006 10:18 AM

  • Roger M
  • TGGP, Good Post!
  • Published: October 3, 2006 10:35 AM

  • Peter
  • You do realise, I suppose, that Roe vs Wade and the 10th and 14th amendments are completely irrelevant to about 95% of the world?
  • Published: October 3, 2006 11:20 AM

  • Ben
  • Peter,

    My point was that a developing fetus does not attach himself or herself to the mother on his/her own. Rather, he/she is brought into existence due solely to the mother’s own actions. The fetus is the direct result of a previous choice that the mother made.

    If the premise on which Block’s argument rests is in fact correct, then he would have to show that it is possible for a human fetus to implant himself or herself in the mother without the mother undergoing any course of action to bring the fetus into existence. In other words, Block would have to show that it is possible for a fetus to be created and to implant himself or herself into a mother’s body without the mother having sex. Obviously, that makes no sense.

  • Published: October 3, 2006 11:46 AM

  • Ken Zahringer
  • David C said:
    In fact, the birth of a fetus is probably a very generous cutoff because arguably children have no free will till several years after birth.

    In other words, you, or the legislature, or a court, or some other person, gets to decide when I am a “real person” and when the rights of life, liberty, and property attach to me. Can you think of a better definition of tyranny?

  • Published: October 3, 2006 11:54 AM

  • Lisa Casanova
  • Ben,
    What is the moral status of a fetus that is the result of rape? It did not come into being as the result of any choice the woman made.
  • Published: October 3, 2006 12:27 PM

  • M E Hoffer
  • Lisa,

    Not that I’m necessarily disagreeing with you, though, in your Q: “…as the result of any choice the woman made.”– Hypothetically, if the woman chose not to train herself, and, in this exercise, that was a key determinant, in Self-defense, Would you state that that was a “causal choice” that she made, leading to her dilemma?

  • Published: October 3, 2006 12:42 PM

  • Reactionary
  • Lisa,

    I have heard it argued that a fetus resulting from rape represents the theft of the woman’s genetic lineage and the argument strikes me as sound. However, my cavil with this is that the remedy, abortion, punishes a party who had no hand in the theft. But on the other hand, forcing the rape victim to maintain the fetus punishes an innocent party as well.

  • Published: October 3, 2006 1:24 PM

  • Jesse McDonald
  • I think there are two distinct issues here, which are being confused:

    1. Should abortion be socially acceptable? 2. What should the punishment be, if any?

    I think the first question — which has been the subject of most of the above comments — is deeply dependant on the individual circumstances of each case, as with most social questions. Under most of the circumstances in which it is performed at present I would not consider abortion an acceptable choice, just as I would consider it socially reprehensible to fail to rescue someone who was drowning, assuming one had the means to do so. It isn’t a question of positive rights — the so-called “right to life” — but rather an internal need to prove oneself by rising to the occasion.

    I think the second question is more important from a Libertarian, natural-rights point of view. Of those who think abortion should be punished I would ask: by whom? Rothbardian natural rights typically require the victim, or the victim’s representative, to persue action against the perpetrator. However, in the case of (voluntary) abortion the perpetrator and the victim’s representative are the same person, and no one else has standing. The only case where a rights-conflict could possibly exist would be where some other party, perhaps the father, was granted representation rights prior to the abortion. Then the problem would reduce to trespass and self-defense or eviction, the limits of which are far from decided.

  • Published: October 3, 2006 2:39 PM

  • Roger M
  • There’s a danger of becoming like Islam in that every breath a person takes is judged as moral or immoral. Historically, Protestant Christianity has taken the position that some issues are clear clut right/wrong. Others should be left up to the individual. Pregnancy due to rape, I think, is one of those issues that should be left to the discretion of the victim. I could argue either side of the abortion debate regarding rape: The unborn child is human so why punish him/her for the crimes of another? On the other hand, the girl has suffered one crime, why force her to suffer the consequences of that horrendous crime for nine more months?
  • Published: October 3, 2006 2:45 PM

  • greg
  • Roger M> I know that libertarians have worked out their logical system to the conclusion that it requires no one to rescue a drowning person. But the average person will find that disgusting, as I do, because a drowning person is not the same thing as a sinking bar of gold.

     

    You must mean “require” only in the legalistic sense. Libertarians who reject such a legal requirement may also feel that they indeed should save a drowning person (under certain local conditions: for example, not dying themselves in the process). These two separate approaches (no legal req and personal assumption of action) to the same occurance are not contradictory. Many people will “require” something of themselves in the personal sense without simultaneously saying that requirement should be a law for all to follow.

     

  • Published: October 3, 2006 3:38 PM

  • Roger M
  • Greg, Thanks! I wasn’t aware of that distinction.
  • Published: October 3, 2006 4:24 PM

  • Sione Vatu
  • TGGP

    You wrote: “If you wake up connected to a violinist, neither you nor he has the right to cause the death of the other by removing them from the kidney they are using.”

    Sure I do. If it’s my kidney he’s using and I don’t consent to him being attached to it, he’s gone.

    And: “If Ernst Blofeld drops James Bond from a helicopter into my raft, which is in water infested by sharks in a blood frenzy, neither of us has the right to kick the other out.”

    Depends on context. Since the raft is too small for both of you to survive you may tip him off. It’s an emergency and it’s your life or his!

    Even were the raft large enough for two; what if you remember the time when James Bond mercilessly killed your innocent brother? Since your government is not going to ever provide justice in the matter, here is your opportunity for justice (and you are preventing a very dangerous state sanctioned killer from ever killing innocent people in the name of the state again).

    The trouble with analogies is that they are not the same as the situation you are actually investigating. Some are closer than others but each comes with a particular context. They may be used to illustrate a point but they do not prove it. Analogy is “similar to” but not “the same as”.

    You wrote: ” A pregnancy not resulting from rape would be like if I placed Bond on my raft while he was unconscious. He cannot consent to this action, so there can be no contract, but I did consent to placing him on it.”

    This is all very well but it is not the same as an abortion. Mr Bond already exists as a volitional active self-aware person. The foetus soes not. Bond may well be unconscious at the time you place him on the raft but he will soon awaken and return to a state of awareness. He exists as a human identity already. In the case of a foetus what you are dealing with is different altogther. Here is a non-conscious, non-volitional, non-active entity which has the potential to become a person but it is not a person yet. Not self-aware. Not volitional. Not conscious. Not active. Never was. Potentially might be. In this example you are confusing a potential with an actual. They are not the same.

    Sione

  • Published: October 3, 2006 4:29 PM

  • Albert Esplugas
  • Ben: I don’t understand how Block and Whitehead can possibly base their pro-choice position on the notion that a developing fetus is a trespasser, or parasite. The fetus does not attach itself to the mother’s body independently of the mother’s actions; clearly, a fetus only implants itself in the mother’s body after the mother has voluntarily chosen to have sex (assuming that she was not raped). Does it not make sense that implicit within the woman’s decision of have sex was a choice to produce a baby? Block and Whitehead, unfortunately, base their entire pro-choice argument on a seemingly absurd premise that their is no relationship between sex and the creation of a baby.

    a developing fetus does not attach himself or herself to the mother on his/her own. Rather, he/she is brought into existence due solely to the mother’s own actions. The fetus is the direct result of a previous choice that the mother made.

    I absolutly agree. I think this is a very important point, sadly overlooked by Block and Whitehead and other pro-choice libertarian theorists for years. Positive obligations are generellay recognized in the case of “duty founded on creation of peril”. As Williamson Evers puts it“The third sort of legal duty that is now enforced by the criminal justice process is duty founded on creation of peril. The criminal law punishes persons who put into motion some force that invades individual rights and who then neglect to halt the force which they originally set in What is really being punished is the bringing forth of an emergency, as when the pilot of a passenger airplane bails out on a whim, leaving the passengers to crash. Returning to the idea of causality and its central role in the law, we can see that the creator of the peril has effectively committed an invasive act. If he neglects to halt or mitigate the force or effect of that act, then he can rightly be held responsible. A person is culpable who omits to halt a force which he originally put in motion. If, for example, a person accidentally starts a fire in a building, then escapes the building, but sees others who could be rescued still in the building, it is his duty to try to aid them. While the accidental arsonist created the peril whicl served as an instrument for invading his victim’s rights, the duty of the perpetrator to aid the imperiled in such cases is to be distinguished from a more generalized duty that is sometimes advanced, namely, a duty of everyone to aid the imperiled.”

    Or Posner, quoted here“Thomson is right that we don’t force people to donate kidneys to strangers, or even to family members. But normally the potential donor is not responsible for the condition that he is asked to alleviate, in the way that a woman (unless she has been raped) is responsible, although only in part, for the fact that she is pregnant. The difference in evidentiary difficulty between asking who hit X and asking who failed to save X is a strong practical reason against liability for failing to be a good Samaritan. So although bystanders are not required to rescue persons in distress, someone who creates the danger, even if nontortiously, may be required to attempt rescue, and perhaps that is the proper analogy to the pregnant woman who wants to terminate her pregnancy.”

    Beckwith and Thomas, in the JLS, relate this “duty founded on creation of peril” with pregnancy: For example, according to the prima facie case for negligence, one is liable for negligence if one (1) has a duty, (2) breached a duty, and (3) caused harm as a result of breaching the duty. One could argue against McDonagh in the following way: Since pregnancy is a foreseeable result of unprotected sex, and since for McDonagh a fetus is a human person, therefore, one who engages in sex has a duty to engage in due care so as not to bring into existence persons whose death due to abortion is foreseeable.

    I think Feser gets right too: “it isn’t clear how it would justify any abortion other than in the case of pregnancy resulting from rape, with which the kidnapping by the violinist’s admirers is analogous. Surely a pregnancy resulting from consensual intercourseÑwhich, as everyone knows, has a chance of resulting in pregnancy even when contraception is usedÑis not analogous to Thomson’s example.”

    See also Doris Gordon “Abortion and Thomson’s Violinist: Unplugging a Bad Analogy”.

    Block and Whitehead say that the homeowner has the right to evict a trespasser (in the gentlest manner possible) but, as Ben has explained, the unborn is not a trespasser. The voluntary actions of the parents put him in that position. Imagine a homeowner that put an outsider (who is unconscious) inside his property and then, accusing him of trespassing, evict him causing his death.

    Responding to Lisa, a fetus that is the result of rape may be evicted (in this case doesn’t apply the “duty founded on creation of peril”; the mother has been raped, she has not created the peril), a fetus that is the result of the voluntary actions of his parents can not.

  • Published: October 3, 2006 5:20 PM

  • Albert Esplugas
  • In fact, Block and Whitehead are defending a positive obligation in their article, namely, the obligation to evict the unborn in the gentlest manner possible (or to abandon a child after communicating it to others). What is the foundation of such a positive obligation? Why is it agression not to abide by this positive obligation? They implicitly accept that parents have this obligation (to evict / to communicate the abandonment) because they have put the child in this situation: “In effect, if not explicitly, when you took over the care of the baby [pre or post-birth] you assented to an implicit obligation requiring you to continue to do so or to notify someone else of this fact. To fail to do so thus smacks of rights violation rather than being forced to assume a positive ob1igation. See also footnote 184: “This way of putting the matter would not apply to the rape victim or to Thomson’s forced host to the violinist”. Why not? Because they concede that the voluntary actions ot the parents are relevant. And if the voluntary actions of parents justify a positive obligation to evict the unborn / to communicate the abandonment of the child, why they cannot justify a positive obligation to continue the pregnancy (if eviction will kill the unborn) or to care the child?

    Block and Whitehead attempt to make a parallel with abandonment of land, but it doesn’t convince me. They say: “the abandoner of land most certainly has the obligation of publicly notifying people of his new non ownership status if he has put up no trespassing signs, fences, etc., on his (ex)holdings. This is because if he refuses to do so, he is actively preventing others from claiming non-owned land. In keeping the baby (land) but not allowing anyone else to homestead (own) it, you are in effect preempting the rights of others to do so.” If I abandon my house or plot of land without communicating it to others I’m not initiating force against others. I don’t see why people have a positive obligation to communicate the abandonment of his property (why it is agression not to communicate that). If I leave without communicating abandonment to others I don’t employ violence against anyone. May be it would be difficult or practically impossible for others to become aware that my property have been abandoned. But, so what? It’s a practical matter, it doesn’t entail agression for my part.

    Therefore, I think Block and Whitehead defend a positive obligation that can only be justified by considering the voluntary actions of the parents. But this also justify an extended positive obligation to continue the pregnancy / caring the child.

    Anyway, I enjoyed this article.

  • Published: October 3, 2006 8:17 PM

  • Kevin
  • This is one of the most wonderful abortion-debate forums that I have ever encountered – where people on all sides are actually arguing with the same intent – to maximize the rights of everyone. If only more people shared this goal…

    These conflicts over abortion make me wonder. Is it wrong to be somewhat jealous of the animals whose sole responsibility of child bearing involves dropping some eggs on the ocean floor for another to fertilize?

  • Published: October 3, 2006 8:36 PM

  • Sione Vatu
  • Albert

    Your argument fails. Whether or not the mother committed an action that led to the foetus being formed is immaterial. Her decision to have sex with a man does not implicitly include a decision to have a baby. By that reasoning one could claim a woman’s decision to have sex also implies a decision to raise a child until adulthood. Some would hold that it implicitly includes a decision to marry her mate. Not so. These are different decisions entirely. That one decision MAY lead to a situation that necessarily requires another is irrelevant.

    Here is an actual example. A professional sex worker has paid sex with a client. Did she implicitly decide to have a baby? Of course not. The notion of an implied decision is invalid.

    Another real example, a woman is informed by her specialist that she is sterile, her eggs are toast and she is unable to conceive. Subsequently she has sex and surprise! She falls pregnant. Her specialist was incorrect. Did she implicitly decide to have a baby? Can’t say that she did. She understood she was unable to have one. In her case unprotected sex with her boyfriend was not expected to ever result in pregnancy. Once again, the notion of an implied decision is invalid.

    *

    Aside from the problems in promoting a positive obligation, a debatable idea in itself, you are confusing a potential with an actual. A foetus is not the same as a person. Two differing entities. I’ve pointed this out previously so I’ll avoid repeating it again here.

    *

    I dislike analogies as they so easily confuse rather than clarify. Nevertheless, since the analogy of the trespasser and the homeowner has been raised here let’s examine further. The homeowner may well invite a person onto his property. That’s a deliberate and conscious act. It can’t be said that a woman having sex is necessarily inviting a foetus to come reside within her body. For a start that entity does not exist at the time she has sex. Secondly even if she did have sex, she did not necessarily intend to become pregnant. So, an invitation does not necessarily exist anyway.

    And, of course, the analogy of the invited guest ignores the situation where the guest outstays his or her welcome. Just this weekend I noticed the boys down the street evicted an overstaying dinner guest early Sunday morning. From what I heard the permission to stay was rescinded. Out he went! Fair enough.

    Talofa!

    Sione

  • Published: October 3, 2006 8:51 PM

  • Peter
  • My point was that a developing fetus does not attach himself or herself to the mother on his/her own. Rather, he/she is brought into existence due solely to the mother’s own actions. The fetus is the direct result of a previous choice that the mother made.

    I know what you meant, but then you could say that “the choice to cross the road implies the choice to get hit by a car” or something, too. It’s nonsense.

    In other words, Block would have to show that it is possible for a fetus to be created and to implant himself or herself into a mother’s body without the mother having sex. Obviously, that makes no sense.

    I disgree that it’s necessary to show that, and agree that it makes no sense, but the majority of people who claim abortion is morally wrong, it seems to me, are Christians, and that obviously makes sense to them: it’s a fundamental tenet of their religion!

  • Published: October 3, 2006 10:03 PM

  • TokyoTom
  • Here are a few facts to inform the discussion:

    “The fact is that the best way to reduce the number of abortions is to reduce the number of unwanted pregnancies in the first place.”

    “… 34% of teenage girls become pregnant at least once before their 20th birthday, and the U.S. has the highest teen pregnancy rate of any industrialized country. Children born to teen moms begin life with the odds against them. They are more likely to be of low-birth weight, 50 percent more likely to repeat a grade, and significantly more likely to be victims of abuse and neglect. And girls who give birth as teenagers face a long, uphill battle to economic self-sufficiency and pride.”

    “Each year, nearly half of the six million pregnancies in this country are unintended, and more than half of all unintended pregnancies end in abortion.”

    “… 7% of American women who do not use contraception account for 53% of all unintended pregnancies.”

    “>Dec. 2005 speech by Sen. H. Clinton

    Do those who care about the loss of innocent life really want to support the offspring of the 7% of American women who do not use contraception and as a result account for 53% of all unintended pregnancies?

    An undiscussed aspect of this is the frequent divergence of interests between the sexes over the abortion question. Mothers have to invest at least nine months of their bodies in carrying a child to term, and have physical investments in nursing and child-raising on top of that. Males, on the others, having made their donation of sperm, frequently get off scot free. I think it is rather clear that the bulk of the women who choose to have abortions are doing so because the putative “father” has, despite his success in wooing the mother, demonstrated a lack of commitment or capability of supporting the mother and child. The father may feel cheated – after all, he has done what nature has typically required in successfully bedding the mother – but if we remove the decision about whether to carry the child to term one effect is to encourage irresponsible male behavior.

    We also undermine the ability of expectant mothers to make difficult decisions about how to allocate scarce resources between investments in education, work, existing children and those children as yet unborn. One might regret that advances in technology have enabled what is a difficult and perhaps faustian decision, but one can hardly put the genie back in the bottle.

    Wouldn’t a better policy be to make sure that contraception is available so that pregnancy occurs only intentionally, rather than on a hit-or-miss default basis?

  • Published: October 3, 2006 11:15 PM

  • Albert Esplugas
  • Peter: I know what you meant, but then you could say that “the choice to cross the road implies the choice to get hit by a car” or something, too. It’s nonsense.

    Of course, the choice to cross the road doesn’t “imply the choice to get hit by a car”. But the choice to cross the road may imply costs you don’t choose (may be to get hit by a car) that you, not others, should bear.

    Block and Whitehead say: “Further, there is something perverse in interpreting the requirement that people take responsibility for what they do in this manner. If a pregnant woman cannot evict her fetus on such a ground, what of the person who ate too many French fries? Logic would imply the illegitimacy of him obtaining an angioplasty. For if you eat too many fatty foods you are on your way toward having a heart attack, availing yourself of a coronary bypass or other such operation would be to fail to “take responsibility” for your initial actions. This is an obvious bit of nonsense. Yet, precisely this argument applies to the eviction case.”

    This analogy is not correct. Nobody says that a person who eat too many French fries cannot try to minimize the cost of his actions. What I’m saying is that he cannot externalize the cost of eating too many fatty foods to others. He, not others, must bear the cost of his voluntary actions. In the case of abortion/eviction (if that implies the death of the unborn), however, parents externalize the cost of their voluntary actions (voluntary sex). The child bears the cost of the parents’ actions. Parents don’t try to minimize their cost, they try to externalize it passing it to the child.

  • Published: October 4, 2006 5:54 AM

  • Laura Miller
  • It may be relevant that between 10 and 50% of fertilized eggs spontaneously abort. So the statement that “the fertilized egg will most certainly become a human being (if kept in the womb 9 months)” is erroneous – a percentage of those eggs will in fact die. Most spontaneous abortions occur in the first trimester and I believe this had some bearing on the argument about viability.

    I also have to agree with the 7%/53% argument – if these women don’t have the option of abortion, does that not imply (to some extent) that I will be coerced into supporting their children via the welfare state?

  • Published: October 4, 2006 10:19 AM

  • JIMB
  • In my view there are a few thoughts which bear saying that haven’t been visited yet

    1 – Self ownership is a physical reality but is not a moral code (i.e. ownership hardly implies what the proper use of the thing should be)

    2 – The logic in the paper, if extended, would similarly make the abandonment of unwanted children legitimate

    3 – The arguments that a person is “compelled to carry a child” I find nonsensical – the child develops, in the vast majority of cases, from an act with known risks (or perhaps even from intent) and without “compulsion”. It takes a positive act of killing (there is the compulsion) to stop it. But even the child required a positive act of support, the consequences demand that the child be given support by those most directly responsible for it’s existence.

    4 – If I take an action which, by it’s nature, reasonably results in my having to care for a handicapped non-violent person for nine months, then decide later that I wish to evict that person but can do so only by tearing their flesh and bone to pieces and vacuuming their dismembered parts from my home, I’d say that was a moral crime to be fought against in every way, and any such “property right” later asserted to my home which contradict the natural consequences and natural moral law cannot reasonably exist in superiority.

    5 – The general result of “libertarianism” seems to indicate non-physical evil would gain greatly in power: and evil doesn’t stay non-violent. The effect – especially in this environment – is to change the rules of the battleground in the state and yield it far more to evil and increase violence.

    6 – It appears the traditional family is an essential atomic element of good society and perhaps cannot be usurped without a destruction of society – hence the institution of marriage is deserving of state sanction and alternative lifestyles, while they may be permitted, are not given equal time or weight.

    7 – Natural moral law is a common ground for ethics and should be promoted along side (or even instead of) Rothbard’s (and other strict self-ownership) views. Natural moral law can be defended by appeal to acts and consequences, and just as economics is corrected by an axiomatic approach, morality is corrected by a practical cause-effect approach visible, and while disagreements can exist, agreeable enough to be settled on

  • Published: October 4, 2006 12:13 PM

  • Sione Vatu
  • JIMB

    Surprise, surprise. More baseless assertion from you.

    “Natural moral law” is really another set of wild assertions you made up. They are arbitrary. Be honest (just for once) and admit what it is you are promoting. Your claims rely on the idea that a creature within super-natural realm tells you what to do; what is moral and what is immoral. The super-natural is revealed to you (voices in your head- whatever). What utter hokum!

    YOu need to do better than that.

    Sione

  • Published: October 5, 2006 7:39 PM

  • JIMB
  • Sione – Natural moral law is apparently so visible that whether a statement should be supported or denied is made constantly by authoritative reference to the harm or support it causes other people (hence the self-ownership principle, limited government, harm to children, etc. etc.). That is hardly arbitrary. I think – perhaps falsely – that the position is very much reversed.
  • Published: October 6, 2006 5:43 AM

  • Sione
  • JIMB

    This statement : “Natural moral law is apparently so visible that whether a statement should be supported or denied is made constantly by authoritative reference to the harm or support it causes other people” is arbitrary.

    You need to define what your concept “natural moral law” is, how it is derived and what its nature is. Further you need to explain what is you consider “authoritive reference” to actually be.

    From this and your previous statements it is clear you are promoting a collectivism based on a primitive type of mystical faith. Unreasonable and illogical. You need to do better.

    Sione

     

  • Published: October 6, 2006 3:39 PM

  • ausblog
  • World estimations of the number of terminations carried out each year is somewhere between 20 and 88 million.

    3,500 per day / 1.3 million per year in America alone.

    50% of that 1.3 million claimed failed birth control was to blame.

    A further 48% had failed to use any birth control at all.

    And 2% had medical reasons.

    That means a stagering 98% may have been avoided had an effective birth control been used.

  • Published: October 6, 2006 9:02 PM

  • JIMB
  • Sione – But why should I “need to do better” unless you are using a standard? You see – you cannot avoid the “natural” appeal to an observable standard of fairness and reason, of which natural moral law is clearly derived.

    I did not “make it up”. It is visible from the natural order.

    For a comprehensive defense of natural moral law, I refer you to the history of common law and to our framing fathers.

  • Published: October 7, 2006 9:22 AM

  • ausblog
  • If you think the point of conception is NOT when life begins, and all you have is a clump of cells and not a living human being.
    Then at least concider this –

    Soon after you were conceived you were no more than a clump of cells.
    This clump of cells was you at your earliest stage, you had plenty of growing to do but this clump of cells was you none the less. Think about it.
    Aren’t you glad you were left unhindered to develope further.
    Safe inside your mother’s womb until you were born.

  • Published: November 22, 2006 10:22 PM

  • Vince Daliessio
  • ausblog says;

    “If you think the point of conception is NOT when life begins, and all you have is a clump of cells and not a living human being.
    Then at least concider this…”

    Technically, since the egg is alive, and the sperm are alive, then life does not “begin”, rather it is continuous.

    I happen to be horrified by the prevalence of abortion in our society, but equally horrified at the way the issue is demagogued for political purposes by politicians of every stripe, it being a red rag that can be used to motivate voters on both sides of the issue.

    But since the issue was placed into the federal purview via Roe v. Wade, has anything really been done about it one way or the other? I submit, it has not, for the reasons above – a fair and reasonable dialogue on the issue will take away a powerful election tool.

    What we are left with are rights, which we austrians usually trace back to the concept of self-ownership. To me, absent any alternative way to evict the unwanted tenant intact, there seems to be no way to prevent abortions consistent with the fundamental SO premise.

    The best I can offer is a utilitarian argument that if abortion, adoption, and medicine were all unregulated, fewer unintended pregnancies might occur, and more of those would end with some kind of adoptive arrangement, lowering the incidence of abortion dramatically. What I know for sure however is that the current political non-solution is NOT working.

  • Published: November 23, 2006 12:57 AM

  • Abortion Debate
  • A debate on libertarianism and abortion has started here:

    http://2008presidentialcampaign.us/message_board/YaBB.pl?num=1186219695/0#0

  • Published: August 4, 2007 5:34 AM

  • Kiwi Polemicist
  • Block’s assertion that an unwanted baby is a trespasser is fatally flawed.

    http://christianclassicalliberalist.wordpress.com/2008/11/14/abortion-is-an-unwanted-baby-a-trespasser/

  • Published: November 13, 2008 6:16 PM

  • cavalier973
  • Sione’s argument seems to be that the right to life can only be legally protected by the state (or prosecuted by the state if violated) if the person in question is a “volitional active self-aware person.”

    Since it could be argued that a newborn is not a volitional active self-aware person, is the newborn then to be deprived of the right to life? What about those who are older but severely mentally retarded?

    Rothbard, incidentally, argued that the parents of a newborn do not have the right to actively kill the newborn, but that they did have the right to abandon him (i.e. allow the newborn to starve to death).

    I agree rather with those whose argument rests on the idea that the fetus’ parents are responsible to care for him, or arrange care by others, since they voluntarily engaged in activity that brought the fetus into existence.

    At the very least, if they are so irresponsible as to procrastinate on the abortion until the child reaches the point where he could survive outside the womb (which is now, what, six months?), then they should be prohibited from killing the child.

  • Published: December 30, 2008 11:40 PM

  • cavalier973
  • Also, the analogy of being hooked up to the violinist needs to be expanded. Imagine that there is an event called the “Greatest Concert Ever”, that is guaranteed to uplift and inspire everyone who attends.
    There is a catch, however: according to the rules of the house, if you attend this concert, there is a 50% chance that you will wake up afterward with a violinist hooked to you and using your kidney for nine months. There is, however, a special badge that you can purchase and display on your outer clothing that only makes it a 5% chance of being hooked to a violinist.

    Now, assume that candidate A, understanding the rules of the house and the potential consequences of attending the concert without a badge, proceeds to attend the concert but without purchasing the badge. Proceed with the analogy….

  • Published: December 31, 2008 4:31 PM

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