Abortion is one of the most divisive issues in modern politics, especially in the US, where, ever since the Supreme Court’s 1973 “Roe v. Wade” decision extended the right to privacy to a woman’s right to have an abortion, the issue has continued to be highly contentious. And it is not just in the US it is a hot topic, in Ireland they are preparing to hold a referendum later this year on the eighth amendment to the constitution, which currently all but prohibits abortion.
Where abortion is within the law, the limit set for how far a woman can be into her pregnancy and still legally have an abortion varies – in the UK, for example, it is 24 weeks in most cases; in the US, Roe v. Wade obligated states to regulate abortion to save the life of the foetus only from the third trimester – but broadly, it represents the point at which a foetus is deemed to be “viable”, meaning that it could survive outside the womb. To the so-called “pro-life” movement, of course, that doesn’t matter: if you believe that life start at conception, it is obvious that whether the foetus could survive birth or not is a moot point – taking a life is murder. To many libertarians, abortion is a clear violation of the non-aggression principle (NAP), a position which is hardly controversial: murder is deemed to be a crime in all modern societies.
Case closed then? Is the fight simply pitting those who believe a foetus doesn’t become a life until it reaches some specified point in its development against those who think age doesn’t matter, and consequently whether it is a violent act to perform an abortion? Not quite, because it isn’t just about whether “life starts at conception”. If it does, then clearly abortion is a violent act perpetrated against the foetus, regardless of age. But does it necessarily follow that it violates the non-aggression principle?
Murray Rothbard, the great libertarian thinker, didn’t think so. His view was that the foetus had already violated the NAP by being a parasitic invader of the woman’s body, and should she choose to take action against the foetus by aborting it, it would effectively be an act of self-defence:
What the mother is doing in an abortion is causing an unwanted entity within her body to be ejected from it: If the fetus dies, this does not rebut the point that no being has a right to live, unbidden, as a parasite within or upon some person’s body.
For a New Liberty, p.139
To Rothbard, the child only obtains a “right to self-ownership by virtue of being a separate entity and a potential adult” at the time of birth. This is because he regarded rights as negative, in the sense that individuals have a right to non-interference with their persons and property, and it would be immoral for another to stop anyone from exercising these rights to their fullest extent. Therefore, no-one has a “right” to compel someone else to do a positive act, which is why even an unborn child has no right to interfere with its mother’s choice of what to do with her own body. The child is in the mother’s womb only by her consent, which she can revoke at her discretion.
Some draw a distinction between children conceived voluntarily, or as a result of rape, seeing a higher moral justification for abortion in the case of an unwanted pregnancy. To pro-lifers this is obviously a false choice, and to Rothbard it was too: even if the mother originally wanted the pregnancy, as the property owner in her own body, she has the right to change her mind and eject the unborn child.
All libertarians should reject the idea that politicians get to choose when life starts, and equally should oppose determining the rights of the unborn child based on the circumstances of its conception. And certainly, forcing people who believe abortion to be murder to pay for it through taxation is, as Rothbard put it, “monstrous”. But the alternative interpretations of the NAP present voluntarist libertarians with a headache: in a society without the state as a final arbitrator, who gets to decide who violated the NAP first, the foetus or the mother? If a Rothbardian has an abortion, a “pro-life” libertarian will believe a murder has been committed – but any attempt to hold the “murderer” accountable will be met with understandable resistance from an accused who has, in her own mind, committed no crime. Using the NAP as a guideline for morality requires absence of ambiguity around who violated it first, because aggression is amoral, but self-defence is justifiable. Abortion asks that very question.