On the Right of a Fetus To Be Where It Is

Walter Block has deployed considerable intellectual ingenuity and creativity in developing, elaborating and defending his libertarian theory of abortion, known as evictionism. My blog titled “Unborn Babies Aren’t Trespassers” aired 5 arguments or objections to the theory, but offered no alternative libertarian theory of abortion. This blog provides such a theory. Other non-libertarian arguments can be cited that bear on abortion. The responsibility argument is important. Perhaps the latter can be recast in libertarian terms, but I do not take that opportunity. The discussion here is limited to well-known libertarian ideas.

I will argue that a fetus has a right to be where it is, in the womb, except for cases like rape and incest where it has no such right. I will not argue that the female has invited the fetus into her womb or that she has made an implicit contract. Block has effectively disposed of these arguments elsewhere. I will not argue that the pregnant woman has a positive obligation.

I continue to use the same assumptions as Block that the fetus is human life or a human being. The analysis continues to be only about the time prior to when the unborn baby becomes viable outside the womb, which is termed t(v), for time of viability. In addition, Block writes “All fetuses are innocent, and equally so.” I qualify that statement and explain why it’s not true for all cases.

The dilemma faced by libertarians who theorize about abortion is that the fetus, as and when it is innocent human life, can’t be evicted before t(v) without its becoming a victim of injustice, since abortion (or eviction) at those times kills the innocent fetus and kills the human being that evictionism assumes to be present. Yet the pregnant female seems to have that right to evict or abort because she owns her own body and her womb.

Block resolves the dilemma by arguing that the female has property in her body and womb while the fetus does not. The fetus, he argues, has no right to be in the womb. Block likens the fetus to a trespasser, an invader and a parasite. These metaphors can be rebutted and shown to be inaccurate and inapplicable to a fetus. Similarly, self-defense can’t resolve the dilemma and warrant abortion unless the mother’s life is threatened, which is not the typical case. These terms used by Block to describe the baby in the womb suggest but do not prove that the fetus has no right to be in the womb, which, if it were true, would imply that the female may evict it without any aggression on her part..

But even if these descriptions of the status of the fetus as aggressor do not hold up under scrutiny or at a minimum are seriously questionable, Block’s bedrock argument remains, and it’s essential to evictionism. It is that the female owns her womb and can without injustice do as she pleases with it and its contents. Without this being true, trespassing and parasitism can’t even become candidates for justifying eviction.

Pro-abortion advocates proclaim that a woman owns her body and that this justifies abortion. Eviction prior to t(v) says the same. To discredit evictionism using libertarian theory, we must ask if this bedrock component of the eviction theory is true without qualification. Is this all that libertarian theory has to say on the matter?

Here is an alternative theory that uses the libertarian principle of homesteading.

I propose that the female’s property right in her body has been altered by her pregnancy. She has lost control over a portion of her “territory”. The fetus has gained a foothold through homesteading in the womb. The female failed to protect her border and lost part of her body to the fetus. The fetus has a right to be where it is because of this homesteading. If the female now aborts, it can only do so by invading territory that no longer is her own. Abortion aggresses upon the current owner, who is the fetus. Abortion violates the non-aggression principle.

The unborn baby has homesteaded a place in the womb. It’s alive there. The female wants to prevent further development. She can only accomplish this by killing that life. In doing that she initiates violence on that life. She violates the NAP. This is why the libertarian theory is against abortion.

How the fetus comes to be in the womb matters in this theory. There are different cases, such as willing intercourse, rape, incest, taking a chance, failure of a method, and failure of contraception.

If you homestead property, you protect it against incursion or use by others that interferes with your use. You define the property under your protection. Consider a pregnant female who through willing intercourse has voluntarily taken the risk of pregnancy and now finds that she’s pregnant. She assumed a risk that brought an innocent fetus into her womb. The womb was totally her property, but now the fetus has homesteaded a part of her body that she didn’t protect and that she herself opened up to that chance of homesteading. The fetus is not invading or trespassing, but homesteading unprotected territory. There is no invitation and no implicit contract.

When the pregnancy is discovered, why must the female allow it to continue and even to further discomfort the expectant mother? Why must she carry the baby to term? Why can’t she get rid of it by abortion? Her body is still hers, is it not? Why does one lapse of protection preclude further protection via abortion?

Answer: Because abortion can only be done by violating the homesteading accomplished already by the fetus, in the process illegitimately taking the human life of the fetus. The fetus has established its life and the domain of its property. It has become a body owner or a self-owner within the womb. To attack it now is aggression. If the fetus has a lawful place in the womb, it means that the pregnant female’s property right in her body has been altered. She must take into account the life inside her and respect its being.

In evictionism, aborting is not like slapping a mosquito or removing some inconvenient growth. It’s killing a human being. In some other theories of abortion, the fetus may be labeled as not human or quasi-human, but not in evictionism or the homesteading theory. Using the assumptions of evictionism and that theory’s language, my argument is that the so-called trespasser has homesteaded the womb and established a right to its territory.

In most cases, the fetus is innocent of any wrongdoing. These cases include willing intercourse, taking a chance, accidents, ignorance, failure of some method and failure of contraception. If intercourse is forced, by rape or incest, the homesteading is based upon an illegitimate aggression. This invalidates the homesteading, making the fetus not an innocent being. The pregnant female then retains her rights to her womb and has a right to abort.

In conclusion, a fetus, apart from a few exceptional cases, has a right to be where it is. Libertarian theory rules out abortion prior to the time of viability, except in special cases. Evictionism is not a correct libertarian theory, because it ignores homesteading within the female’s body. This lapse leads to a failure to spell out the rights of the unborn fetus. Having secured a position inside the pregnant mother’s body by legitimate homesteading, its right to develop cannot without aggression be thwarted or destroyed by a sentence of death through abortion or eviction.


3:08 pm on May 25, 2019