Walter Block vs. Kinsella on Abortion, Contract, and Inalienability

[Notice, he never gives any coherent reasons to some of the key ideas his argument relies on: –that fetuses have rights just b/c they “are human” –that the fetus is a trespasser (even though it was “invited” in most cases) –that when you evict a trespasser you have to use the gentlest manner possible (why?) –that if an eviction method imposes ANY extra costs on the victim, then it doesn’t count as the gentlest manner possible (why?)

 

hoppe on abortion https://www.youtube.com/watch?v=cuoepBsv3ZE

Timo Wirkman Virkkala,”Q&A: Libertarian Anti-Abortionism,” Wirkman Comments (June 6, 2022)

Sean Parr,  “Departurism and the Libertarian Axiom of Gentleness”
Introduction to [Foreign Language] Translation of Against Intellectual Property

Block 32. “Rejoinder to Wisniewski on Abortion” libertarianpapers.org/32-rejoinder-wisniewski-abortion/

]

Abortion is, of course, a perennially contentious issue. This is true even among libertarians; most libertarians are pro-choice but there is a healthy contingent that is pro-life of one stripe or another, such as Doris Gordon and Libertarians for Life. It’s not surprising that my longtime friend Walter Block has written a good deal on abortion and his theory of “evictionism,” although, oddly, the topic does not seem to appear in his books Defending the Undefendable or Defending The Undefendable II: Freedom in All Realms. I myself have touched on this issue a few times, e.g. Objectivists on Positive Parental Obligations and Abortion (2); How We Come To Own Ourselves; also Block on Abortion (Mises, 2006).

A friend and I were discussing my longtime friend Walter Block and his views on abortion.

My friend had the impression Walter is pro-life. But that’s not quite right. He has a unique approach on this matter. I’d like to unpack this here.

In any case, here is my attempt to unpack Walter’s views. He’s one of the most significant libertarian theorists, so his views on such matters bear attention and scrutiny. He won’t be happy with this feeble attempt, since he only likes peer-reviewed journal articles that he can respond to. Sorry, Walter. As Judy Tenuta might say, “Suffah, Pope!”

So. What is his view on abortion? He is not exactly pro-life, as my friend thought. He is “free choice” which amounts to pro-choice in today’s world. Here is his view, as far as I can make it out. Below I draw mostly on Walter Block & Roy Whitehead, “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” Appalachian L. Rev. vol. 4, no. 2 (2005): 1–45 (PDF):, and also Block, “Rejoinder to Wisniewski on Abortion“. He also has a good deal of other material on this topic, on his publications page and his “evictionism” page; and se also his book Evicitionism [sic]: The compromise solution to the pro-life pro-choice debate controversy (Springer 2021).¹

His argument, in sum, is that fetuses have rights, pregnant mothers have rights, the mother has the right to evict the fetus since it’s a trespasser (“evictionism”), but this must be done in the gentlest way possible; with current technology it is not possible to evict a fetus without killing it, so it’s permissible to kill it but only to evict it. If we ever had technology that permitted eviction without killing, then the mom could not kill the fetus. But in today’s world, she has the right to evict it even if that means killing it, i.e. abortion. So he is de facto pro-choice, or what he calls “free choice,” which he views as lying between the extreme pro-choice and pro-life positions. I think Walter reaches roughly the right conclusion but for the wrong reasons.

So let’s take his argument one step at a time. First, he maintains that fetuses have full human rights, from the moment of conception. I think this is his first mistake of many in his abortion argument. But he argues:

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.139

We take this position for two reasons. First, if not interfered with, without any further effort, the fetus is already on its way to human status. Surely an entity, which after a nine month “sleep” will wake up as a human being, has already attained that status. Consider the alternative. Here, the fetus of thirty-five weeks and several days, although viable outside the womb in virtually all cases given present technology, has no rights at all. It can be lulled with legal impunity. It will be a fully rights bearing baby in a mere matter of hours, and yet now it can be “disposed of.” Compare two entities, assuming that this was technologically possible: one, the new-born babe, still attached to its umbilical chord, a few seconds old. The other, its sibling, is still in the womb but due out in a matter of minutes. No two entities could be more alike, biologically, spiritually, or in any other way. Yet, in the “pro-choice” philosophy, it would be murder to kill the one and a matter of complete judicial irrelevance to kill the other. Surely, this is a travesty not only of justice but also of common sense.140

The second reason is a logical—rhetorical—pedagogical one. Paradoxically, considering the foregoing, we shall be defending the “pro- choice” position. It behooves us, then, to place every obstacle in our own way lest we become involved in a process of demolishing strawmen. That is, given it is our view that a woman has a right to rid herself of the fetus at any point in this process, for any reason deemed sufficient by herself alone, matters would be far too easy for us if human life began only at birth. For then the decision to terminate the pregnancy would be non-debatable. However, if we can show, as we intend to do, that it would be licit for her to end the pregnancy even given that the fetus has all human rights, the analysis would be the more logically robust.

I think there are several problems here. First, it assumes new-born babies have the same full rights as adult humans do. This may not be the case. Second, it assume that there is no relevant difference between the fetus in the womb and one already born; Ayn Rand and others argue this does in fact make a relevant difference. After all preventing a mom from aborting a baby inside her only applies to unborn babies. Not to born ones.

Third, Walter’s first reason seems to be based either on the status of the baby as “human” and thus having “human rights,” or on its capacity to develop into fully human status. As for the former notion, this is similar to the flawed argument Doris Gordon of Libertarians for Life used to give in her argument against abortion. The status of being “human” is not what gives us rights; after all, an intelligent alien species would also have rights, even though they are not human. So humans don’t have rights because they are human; they have rights because of some other quality, like sapience or intelligence, which any other intelligent being could possess. If only born, functioning humans have these qualities then you can’t just say that a one-celled zygote the moment after conception has rights just because we biologically label it “human.”

As for the second reason—the zygote or fetus’s potential capacity to develop into a rights-bearing, intelligent or sapient human—this is also a problematic assumption and not widely accepted by libertarian rights theorists, who usually focus on the characteristics of the individual not its future potential. After all, one could envision a sperm inside a man and an ovum inside a woman standing next to him; together this pair could unite and develop into a human, so it too is a human and for the pair to fail to copulate would be murder! Which is, of course, absurd. If Walter can analogize a late-term fetus in the womb to a born baby, surely we can analogize a separated sperm-egg pair to a fertilized zygote.

And the second reason is simply not a reason at all that the fetus has rights. It might be a reason to assume it has rights to reach a de facto pro-choice position, but it does not establish that a fetus has rights. Walter admits it’s a rhetorical and pedagogical argument. I’d say it’s a technique but not an actual argument.

But let’s let these criticisms pass. Walter thinks we can assume fetusus have full human rights from day 1.

However, the pregnant mother also has rights. The problem is that the fetus is a “trespasser” inside the woman and she has a right to remove it. Writes Walter:

Given [that the fetus has rights from conception], how can we defend the mother’s right to kill the fetus?

Simple. She owns her own body, and the unwanted fetus growing within it is in effect a trespasser or parasite. This may sound harsh, but when the property rights in question are thoroughly analyzed, it is the only possible conclusion that may be reached.

The problem here is that the fetus didn’t just creep into her womb; the mother created it by voluntary action. Thus, in my view, it is not a trespasser at all; it is an invitee. If you invite a stranger to your home for a party and a huge hurricane strikes, your normal right to evict them may be limited during the duration of the storm, since ejecting them would put them in peril. Likewise, as I argued in How We Come To Own Ourselves, libertarians do not oppose positive obligations and the corresponding positive rights; we simply oppose unchosen positive obligations. As I wrote there:

the libertarian could argue that the parent has various positive obligations to his or her children, such as the obligation to feed, shelter, educate, etc. The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide. Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs. And surely this set of positive obligations would encompass the obligation to manumit the child at a certain point. This last argument is, to my mind, the most attractive, but it is also probably the least likely to be accepted by most libertarians, who generally seem opposed to positive obligations, even if they are incurred as the result of one’s actions. Rothbard, for example, puts forward several objections to such an approach.

Walter wants to characterize the fetus as a trespasser instead of as an invitee, because he thinks invitation arises by “contract” and the mother can’t have formed a contract, by an act of sex before the baby is conceived, because it doens’t exist yet. As he writes:

This case is not analogous to the one where an individual is invited on an airplane trip, and then halfway, while he is up in the air, the owner states that the invitation was only for fifteen minutes and that the time is now up . . . so stop trespassing and leave forthwith, sans parachute. There is an implicit contract in force in that instance.147 In contrast, there can be no such contract in the case of pregnancy, at the very least because there is simply no child to have a contract with at the point of intercourse when the child is created.148 The fetus does not yet exist, and even when it does, it is impossible to have a contract (implicit or otherwise) with a one-week-old baby.149

But there are several problems here. First, as Rothbard shows in his contract theory,² contracts are not binding promises nor do they give rise to them; they are instead simply transfers of title to owned, alienable resources. This theory is pathbreaking,³ but even Rothbard himself slightly mangles it, where he has to make somewhat convoluted arguments to avoid debtor’s prison and to argue for inalienability;⁴ and I believe he also lost sight of his own contract theory (and his own arguments against defamation law)⁵ when he argued for some kind of contractual version of copyright law.⁶ And I think Walter himself, though seemingly an advocate of Rothbard’s contract theory, misapplies or loses sight of it in arguing for body-alienability.⁷ And also here. The question is not whether there is “a contract” with the fetus; after all, contracts are just transfers of title to owned property. Contracts are really just the outcome of property rights: to be an owner of a resource means that you can exclude others from the resource. But you can also consent to them using the resource. This is the distinction between consensual sex and rape, for example. At one extreme, the owner can completely relinquish title by abandoning it “in favor of” a new possessor, who then immediately re-homesteads the now-abandoned property. In this way, the owner can use his power of ownership to sell or gift a resource to someone else–to transfer title to someone.  (( See A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. )) This is what contracts are. Contracts just are the exercise by the owner of the power to grant or deny consent to others to use the resource. In the prototypical case, the consent can be made permanent, contemporaneous, unconditional, and complete—a sale or gift.

But it can also be more complicated or less than permanent or less than complete. For example you can loan your car to someone for a day. The borrower in effect is the “owner” of the car but only for a day, and only for certain limited uses. Similar consideration would apply to leases of an apartment, usufructs, and so on. Or the contract might not be contemporaneous; it might be a future transfer, which is thus necessarily uncertain and conditional. It is uncertain because the future is uncertain. This is why debtor’s prison is unjust and Rothbard and Block go astray: they think failure to repay a debt is “theft,” or “implicit theft,” which is a made-up term that makes no sense. If I contractually transfer $1100 future gold ounces to you in a year then if I am bankrupt and unable to pay, I have not stolen anything because there is no gold to steal. And all such contracts are conditional since one condition is “I transfer gold to you in a year, assuming IT EXISTS”. Usually there are other agreed-upon conditions, such as “if you loan me 1000 gold ounces now” or “if you remodel my kitchen”.

So Walter wants to argue that there can be no contract with the fetus since it doesn’t exist at the time of the act of copulation that later produces it. But as I have explained (to no avail) in private conversation with Walter, the timing is not critical here. For example suppose you maliciously, sadistically plant a land mine under a tree hoping that some day some innocent person will step on it. Suppose five years later, a four year old boy steps on it and is injured. Can there be any doubt you are the cause of his injury, even though he didn’t exist when you performed the negligent/reckless act?

And this highlights that the issue is not really contract, but causation.⁸ The argument for why the parent owes positive obligations to the child is not based on contract, i.e., title transfers. It’s based on the fact that the parent, by her voluntary actions, created a helpless, dependent, needy, and rights-bearing entity whose natural state would be to grow for nine months inside the mother’s womb. This is simply not trespass. The tortfeasor pushing someone into a lake has a positive obligation to the drowning person not because of a contract but because he caused the position of peril the rights-bearing victim finds himself in. Likewise, the mother causes the baby to come into existence, and by its nature it is helpless and dependent on her womb and her allowing it to remain until birth. So it is really irrelevant that there is no “contract” with the non-existent fetus; and as noted above, contracts are about title transfers anyway, not about positive obligations. (One reason Walter may mangle this issue is his belief that bodies are alienable, and thus, though he claims to agree with Rothbard that contracts are just title transfers and not binding obligations, if you can alienate your body by contract, you can in effect create the same thing as a binding obligation.) To call the fetus a trespasser, when it was not only invited, but created, by the mother, is not only counter-intuitive but perverse; and in any case, it still does not counter the causal argument limned above.

But let’s go on. So far Walter thinks that fetuses have rights, but so do mothers, and the rights-bearing fetus is a trespasser. Thus, the mother has the right to evict the trespasser. One wonders if Walter would agree with me on the hurricane example above; it seems he would, based on the airplane example he gives, though he roots it in his version of contract theory instead of causation, as I would. As I wrote in “Inalienability and Punishment: A Reply to George Smith“:

One retains the right to change one’s mind, absent special circumstances.37

37. E.g., an airplane pilot may be forcibly restrained by passengers from parachuting out in mid-flight.  See [Randy] Barnett, Structure of Liberty, 81–82.  The reason the parachuting is arguably aggression is that this action can be considered to be the cause of the physical harm that will befall the passengers, much like one who shoots a gun or drops a bomb is an aggressor. [emphasis added]

In any case, Walter now moves on to abortion. The pregnant woman has rights, and the rights-bearing fetus has rights, but she can evict it since she owns her body and she never had a “contract” with the pre-existing fetus. But she has to evict it in the gentlest manner possible. But, “If there was no gentle manner feasible, an individual’s property rights to her womb transcend the so-called “right to life” of anyone else. No one has a “right to life.”” In other words, the pregnant mother can evict the fetus even if it means death of the fetus (“abortion,” defined this way: “abortion equals eviction plus killing.” Block, “Rejoinder to Wisniewski on Abortion“).

***

He says the fetus is a trespasser and if she wants to evict it, she can. In my view the fetus has no rights at least until later stages, but even then, it’s not a “trespasser” since the mom invited it. Walter says it was not invited b/c you can’t form a contract with something that doesn’t exist yet. I think his reasoning is flawed again but he must say it’s trespass, and not invited, to avoid being 100% pro-life and viewing all abortion as murder.

So he views a fetus as having rights, but a mom as having the right to evict. She has to do it the “gentlest way possible” so if technology would allow putting it in a womb or “transoption” as in Victor Koman’s novel Solomon’s Knife, then she has to do that. But if current technology doesn’t permit the baby to be saved and it only be evicted by killing it (abortion), then it’s permissible. Thus, he writes:
“The position put forth here, in contrast, is one of eviction not of killing. However, if the only way to evict is by killing the fetus, then the woman’s right to her property – that is, her womb – must be held above the valuable life of the fetus.” Block, Walter, and Roy Whitehead, “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” Appalachian L. Rev. vol. 4, no. 2 (2005): 1–45 (PDF):

And here, “Rejoinder to Wisniewski on Abortion,” “abortion equals eviction plus killing.”

So he is in favor of abortion if it’s done by eviction and that results in the fetus being kiilled ,if there is not “gentler” option.

HE does this so he can claim to have a position “in between” pro-choice and pro-life. I think he’s pretty confused. He has to say the fetus is a trespasser EVEN THOUGH THE MOM CONCEIVED IT ,which is ridiculous. He has to say this b/c he doesn’t want to be a pure pro-lifers. I have argued with him about his bizarre contract views here and showed him how it’s flawed but he’s obstinate.

IN my view: 1. we can’t say an early term fetus has rights. So abortion has to be permitted. Even if it seems immoral and unseemly.

2. You could argue that later term abortions look increasingly like infanticide. Part of this argument recognizes the fetus is NOT a trespasser since the mom invited it. Walter is crazy about that part. But *even here* the libertarian view has to be pro-choice since a law policing this is too intrustive and invasive.

Make sense?

 

***

 

———- Forwarded message ———
From: Stephan Kinsella <nskinsella@gmail.com>
Date: Sun, Apr 17, 2022 at 5:13 PM
Subject: Re: Walter on Abortion

the problem wtih his view is he lkes to be cute and say he’s between the pro-life and pro-choice extremes, but his position under today’s technology and that foreseeable, is that you can abort up to the very end of pregnancy b/c the baby is a trespasser and the gentlest way to evict the trespasser is to abort it. So he really is more extreme than most pro-choice people who don’t seem too bothered with some restrictions in the late term. Even Ayn Rand implied late-term abortion might be a problem — ”
Ayn Rand held that “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 her 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.”

https://www.atlassociety.org/post/abortion

I think her intuitions are basically right here but I still would oppose any state law against any abortion b/c it’s just none of the state or legal system’s business. The way I view it is, the *jurisdiction* for abortion as a crime or whatever, is *within the family unit* only–the outside community and legal system and state has no jurisdiction over it, any more than Texas has a right to outlaw abortion in Finland.

What say you?

On Sun, Apr 17, 2022 at 2:39 PM Stephan Kinsella <nskinsella@gmail.com> wrote:
so he would say that in the future, if you can safely evict a fetus (e.g., put it in an artificial womb, or transplant it into another woman), then you could not kill it. You could evict it, but must do so in the gentlest way. Then it would be murder to abort it by eviction sicne yo udon’t need to.

but in today’s world with today’s technology I think he would say you can abort it since that currently is the only way to evict it.

On Sun, Apr 17, 2022, 8:48 AM Stephan Kinsella <nskinsella@gmail.com> wrote:

 

 

From a discussion with a friend who thought Walter was pro-life and had some cockamie “transoption” (h/t Victor Koman) views —

Victor Koman, Solomon’s Knife.

I said no, that’s wrong and he argued with me. So I had to pull out the big guns. I’m never wrong about this shit. Never. This libertarian theory shit is getting boring, son!

 

 

though he tries to characterize his position as a moderate one between extreme pro-choice and pro-life

[walter thinks his position is the moderate one:

The private property rights position on this issue is thus a moderate one. Pro-abortion radical feminists and others who think they have a right to kill fetuses, even if it is possible to evict them without harm, represent one extreme115 in this debate. They hold the view that it is the pregnant woman’s right to determine whether or not that fetus will live. Nor does this apply only in the case of rape. This position defends a woman’s choice to abort when intercourse for the purpose of procreation occurs voluntarily, but later on she decides not to carry the baby to term. Women have a right to kill their unborn children, even if medical technology exists which would save it, in this view.

On the other side of the spectrum are the anti-abortionists, who would violate the woman’s right to her own body to the extent of insisting that a trespasser, a parasite, be allowed to remain there for nine months against her will.156]

 

Long: Abortion, Abandonment, and Positive Rights: The Limits of Compulsory Altruism* by Roderick T. Long https://praxeology.net/RTL-Abortion.htm

1. (Springer; Amazon. Note that the title has a typo: it misspells “evictionism” as “evicitionism”. [↩]
2. See Rothbard, “Property Rights and the Theory of Contracts,” also in The Ethics of Liberty; Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…; and my article A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability; and see also my podcast episode KOL146 | Interview of Williamson Evers on the Title-Transfer Theory of Contract and my post Thoughts on Walter Block on Voluntary Slavery, Alienability vs. Inalienability, Property and Contract, Rothbard and Evers. [↩]
3. KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract. [↩]
4. See A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. [↩]
5. Rothbard, “Knowledge, True and False,” also in Ethics of Liberty. [↩]
6. Which I critiqued in the “Contract vs. Reserved Rights” section of Against Intellectual Property. [↩]
7. See Kinsella,”A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability” and “Inalienability and Punishment: A Reply to George Smith“; Block, “Toward a Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Gordon, Smith, Kinsella and Epstein“; and Kinsella, KOL004 | Interview with Walter Block on Voluntary Slavery and Inalienability.  [↩]
8. See Kinsella & Tinsley, “Causation and Aggression.” [↩]