Rothbard’s and Block’s Abortion Theories

This blog is actually a note that runs just over 8 pages. After I wrote a couple of blogs on evictionism a little while back, I received some criticism and comments. That led me to read the literature more broadly and deeply. The first result was a blog explaining what evictionism says, because I was being told that I didn’t understand what the theory was saying. The blog before you explains, compares and contrasts Rothbard’s and Block’s abortion theories. I have not seen this done before with the kind of analysis I provide. Writing it opened my eyes, and I hope that others will find some new insights in it.

Rothbard’s and Block’s Abortion Theories: Explained and Contrasted

Part 1: Murray Rothbard’s Abortion Theory

Walter Block hits the mark when he observes

“The question of abortion is entirely one of settling the seemingly conflicting rights of the mother and the foetus.” (Libertarian Forum, 1977, p. 794)

Rothbard’s and Block’s abortion theories are very different, but they both come down on the side of the pregnant woman’s right to abort, that right being mainly a consequence of the woman’s self-ownership or ownership of her body. The two theories differ greatly on the nature and rights of the unborn baby.

Rothbard pinpoints self-ownership as key to any abortion theory:

“The proper groundwork for analysis of abortion is in every man’s absolute right of self-ownership.” (The Ethics of Liberty, 1982, p. 98)

Two questions arise: What are the self-ownership rights of the pregnant woman? What are the self-ownership rights of the unborn baby?

Rothbard’s unequivocal and long-held view is that children are not self-owners:

“Children cannot be considered self-owners, because they are not yet in possession of the powers of reason necessary to direct their actions…children are under the hegemonic authority of their parents until they are old enough to become self-owning beings…Since children are not capable of self-ownership, authority over them will rest in some individuals…Children, not long after birth, begin to acquire the powers of reasoning human beings and embody the potential development of full self-owners.” (Man, Economy and State, 1962, p. 93, note 12)

“The right of self-ownership by each man has been established for adults, for natural self-owners who must use their minds to select and pursue their ends. On the other hand, it is clear that a newborn babe is in no natural sense an existing self-owner, but rather a potential self-owner.” (The Ethics of Liberty, 1982, p. 97)

“A newborn baby cannot be an existent self-owner in any sense.” (Ibid., p. 99)

“…every baby as soon as it is born and is therefore no longer contained within his mother’s body possesses the right of self-ownership by virtue of being a separate entity and a potential adult.” (Ibid., p. 100)

If newborn babies are not self-owners and if they are taking the very first steps to becoming self-owners, then unborn babies who are even less developed are not self-owners, according to Rothbard. This means that the unborn own nothing. They are not human beings; they are not persons. They have no rights. They belong entirely to the pregnant woman and their disposition is up to her. If they are not human beings, they are objects or means; and again they have no rights.

All adult men are self-owners in Rothbard’s broader theory of liberty. Suppose

“…one person or group of persons, G, are entitled to own not only themselves but also the remainder of society, R. But, apart from many other problems and difficulties with this kind of system, we cannot here have a universal or natural-law ethic for the human race. We can only have a partial and arbitrary ethic, similar to the view that Hohenzollerns are by nature entitled to rule over non-Hohenzollerns. Indeed, the ethic which states that Class G is entitled to rule over Class R implies that the latter, R, are subhuman beings who do not have a right to participate as full humans in the rights of self-ownership enjoyed by G – but this of course violates the initial assumption that we are carving out an ethic for human beings as such.” (Ibid., pp. 45-46)

Applying Rothbard’s analysis, his argument is that pregnant women are a class entitled to rule over the subhuman beings they carry, their unborn babies. The latter have no rights of self-ownership.

But, Rothbard says,

“…this poses a difficult problem: for when or in what way, does a growing child acquire his natural right to liberty and self-ownership? Gradually, or all at once? At what age? And what criteria do we set forth for this shift or transition?” (Ibid, p. 97)

By reading Rothbard carefully and closely, we can find the criteria that he advocates for the shift from no self-ownership to self-ownership. The preceding quotations show clearly that in Rothbard’s theory, three criteria accompany birth that make it the transition point between no self-ownership and self-ownership. The first criterion is that the newborn has the potential to become a “full” self-owner. He mentions this in 1962 and 1982.

The “potential-at-birth” criterion fails to demarcate the inception of self-ownership because the potential of becoming a self-owner existed just before birth and at earlier dates going all the way back to conception. The potential is a necessary implication of being a biological human, and the latter is an undeniable natural fact that a theory of natural law like Rothbard’s has to accommodate. His theory doesn’t handle this fact. Birth is important in perhaps accelerating self-ownership, but it has no special meaning as far as the process of realizing self-ownership potential goes. It’s one period during a process that starts earlier. If potential full self-ownership is a critical criterion of a human being, then conception is the actual time at which the self-ownership process is initiated.

Second, Rothbard says that “being a separate entity” brings with it self-ownership. This too is a criterion that doesn’t cut in at birth. Indeed, if separate entity-ship is a critical criterion of self-ownership, then the unborn baby meets this criterion. How do we know this? It is a natural fact that the unborn baby is not the same being as the pregnant woman. The unborn can be killed while the expectant woman lives on. The unborn has its own limbs that it can move. The woman cannot move the body of the unborn in the same natural way that she moves her own body. In these and similar ways, the unborn is separate from the woman as a biological or natural being; and some of these ways go back to the time of conception. If separation spells self-ownership, then self-ownership begins in the womb.

Third, Rothbard says that reasoning, consciousness, and using one’s mind to select and pursue ends are necessary to self-ownership. Yes, it’s a natural fact that the unborn baby lacks these in full scope and that they develop over time, to birth and after. However, these characteristics are just another aspect of a baby’s potential, which means that if these properties of the mind indicate self-ownership, the latter still originates at conception.

Not being able to reason at some periods of your life doesn’t mean you’re not a human being; it doesn’t alter your biological makeup. Does reason actually bear a necessary relation to self-ownership, as Rothbard assumes? To be a human being or person, one need not display consciousness. One’s growing human body in the human womb alone shows that one is a human being. That body belongs naturally to the unborn baby, as discussed in examining its being a separate entity, even before birth. And if the body belongs to the baby, this indicates self-ownership occurring in the womb.

In order to deny that an unborn baby has any degree of self-ownership, Rothbard comes face to face with an insoluble continuum problem. His attempts to solve it all fail. No matter what criteria he selects, they all go back to conception. They all founder on natural facts. Block’s theory, we shall see, accepts these facts, making it very different from Rothbard’s.

If babies are to grow into self-ownership, the process has to start at some point and it is difficult to say that it is not at conception. Rothbard’s arguments that the unborn are not self-owners fail. Each of the three components cuts the other way.

But let us plow on anyway with his theory to see where it leads and how it gets us there. We now know that Rothbard believes that the unborn are not human beings, lack self-ownership in any degree, and have no rights. If anyone owns them, it is the mother, in his theory. Consistent with this theory, he infers that the unborn is a parasitic invader that the mother may justly expel by abortion. For Rothbard, abortion is therefore not the murder of a human being:

“The proper groundwork for analysis of abortion is in every man’s absolute right of self-ownership. This implies immediately that every woman has the absolute right to her own body, that she has absolute dominion over her body and everything within it. This includes the fetus. Most fetuses are in the mother’s womb because the mother consents to this situation, but the fetus is there by the mother’s freely-granted consent. But should the mother decide that she does not want the fetus there any longer, then the fetus becomes a parasitic ‘invader’ of her person, and the mother has the perfect right to expel this invader from her domain. Abortion should be looked upon, not as ‘murder’ of a living person, but as the expulsion of an unwanted invader from the mother’s body. Any laws restricting or prohibiting abortion are therefore invasions of the rights of mothers.” (Ibid., p. 98)

There is a problem. If women are entitled to rule over their unborn to the point of killing the unborn, and if the unborn actually have self-ownership rights as the preceding discussion of criteria suggests, then the right to kill of the mothers conflicts with the self-ownership rights of their babies. This conflict in rights has no obvious resolution within Rothbard’s theory. It indicates a problem with that theory because rights do not conflict with one another. To quote Rothbard on this topic:

“And since the rights of man are deducible from natural law, these rights cannot conflict with one another. If one discovers a contradiction, one has also discovered an error in one’s process of reasoning.” (2005, “The Heresy of Prudence.”
www.lewrockwell.com/rothbard/rothbard65.html)

Rothbard’s solution to the seemingly conflicting rights of wman and unborn child was to deny that the unborn child had any rights.

Yet, the unborn baby is a natural person and a human being by its biology at a minimum. He belongs to himself by nature, not to his mother. He is not a non-human or sub-human parasitic organism. For Rothbard, birth is a time of discontinuity, a time when the baby becomes a human being with self-ownership rights. Rothbard acknowledges the human status for a child after birth, but not before birth.

Rothbard’s abortion theory is quite consistent, strong, clear and useful, even though it’s open to very serious doubts and criticisms.

Part 2: Walter Block’s Eviction Theory

Walter Block’s eviction theory of abortion differs remarkably from Rothbard’s. It resembles it in some respects but differs dramatically in other critically important ways.

My exposition of Block’s theory doesn’t present it in one shot or follow his exposition. Instead, I present it in such a way as to reveal the role and logic of each step. This does nothing to impair the theory. It simply allows us to compare it to Rothbard’s theory and to bring out those contentions of the theory that are open to question.

On the key question of the unborn’s self-ownership rights, Block argues strongly and convincingly that the unborn is a human being:

“The fetus is alive. If cut, it bleeds. If bludgeoned, it dies. If left unmolested, it takes in oxygen, imbibes nutrients, and performs other biological functions. It satisfies every existing criterion for ‘life.’

“And surely the fetus is human. Well, it’s not a chipmunk or a raccoon or a giraffe, is it? What else could it be, if not human? The conclusion is clear: the fetus is an alive human being. Killing a fetus is therefore murder.” (Reason, April 1978)

Not only that, Block argues that the unborn baby is human from conception:

“The fetus is not a potential human being, it’s an actual one. This goes for the fetus right before birth, six months before, three months before, three weeks before, and, if strict cognizance be taken of logic, the fetus is human life, a human being, immediately after fertilization, in the two cell stage of development.” (Ibid.)

Block’s position on the unborn’s rights is diametrically opposed to Rothbard’s. The difference is really shocking. For Block, the unborn is a human being. Therefore, it is a person in possession of ownership rights. They include the right not to be killed. In my view, Block is correct on these points.

Since Block recognizes “the mother’s rights to her body”, there is at this point in my exposition of his theory’s logic, a conflict of rights between the unborn baby and a mother who would exercise her right to her body and remove the unborn, most likely to its death.

When Block introduces the new idea that an unwelcome and unwanted baby is a trespasser, this conflict is said to be resolved. The theory then logically leads back to a position supporting abortion:

“Abortion then is justified because if the fetus is unwelcome it then becomes a trespasser inside the mother’s body. Since slavery is improper, the mother cannot legitimately be made a slave of the fetus and forced to accept its unwelcome trespass within her. Abortion is justified because continued unwilling pregnancy is a violation of the mother’s rights to her body.” (Ibid.)

Abortion’s justification in Block’s theory depends upon (1) whether or not the unborn baby is a trespasser and, (2) if so, what actions are justly allowed the mother.

Slavery mentioned in the quote or involuntary servitude is not the deciding factor and need not be addressed separately; that charge is a cart, not a horse. It’s not an argument. That charge begs the questions that need to be answered. If the baby is not a trespasser, there is no servitude involved in protecting its right not to be killed. Even if the baby is a trespasser, the just action may not be to kill it, in which case protecting its life is just, not involving involuntary servitude.

Block’s theory, like Rothbard’s, depends upon the mother’s rights to her body. Both see no change in the content of her rights consequent on the pregnancy. In neither theory are any changes in her rights contemplated that would negate abortion.

If the unborn is a trespasser, then the unborn’s rights inside the womb alter. The mother’s right to her body and womb provide her with the justification to remove the unborn, for any reason or none at all. At this point, Block’s theory has the same effect as Rothbard’s in justifying abortion.

I do not in this blog go into the arguments that the unborn is not a trespasser.

Assume for the sake of argument that there is trespass. There is a serious problem with the mother exercising her removal right because abortion causes the death of the unborn in most cases, and death of a trespasser is vastly disproportionate to the crime of trespassing.

There is a big gap between trespass and the remedy of death. Rothbard argues that capital punishment is only appropriate for capital crimes:

“Thus, it should be quite clear that, under libertarian law, capital punishment would have to be confined strictly to the crime of murder. For a criminal would only lose his right to life if he had first deprived some victim of that same right. It would not be permissible, then, for a merchant whose bubble gum had been stolen, to execute the convicted bubble gum thief. If he did so, then he, the merchant, would be an unjustifiable murderer, who could be brought to the bar of justice by the heirs or assigns of the bubble gum thief.” (The Ethics of Liberty, 1982, pp. 80-81)

The right of the unborn not to be killed over a trespass comes into conflict with the mother’s assumed right to her body. Again we find a conflict of rights. This conflict of rights means that the analysis is incomplete or its reasoning is in error.

To resolve this quandary, Block adds a new idea. He calls removal of the unborn baby without killing it, “eviction”. He says that eviction is distinct from killing the unborn. He says that, so long as the mother avails herself of the gentlest possible method of removal, such removal is always just and always an option of the mother even if killing the baby occurs.

Block’s resolution of the conflict reasons as follows. The mother has the right to stop the trespass. That right is paramount. Her only duty is to use the gentlest possible method of removal that stops the trespass. If the baby dies and she has used the gentlest possible method, she has not committed murder.

Block and Whitehead state it plainly:

“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.” (Compromising the Uncompromisable)

What in Block’s theory removes the conflict of rights? It’s the idea that self-defense takes priority over an offender’s rights, or self-defense sometimes requires abrogating an offender’s rights out of proportion to the crime. Block, arbitrarily in my view, rejects Rothbard’s theory of proportionate response in self-defense. Why? Why does the mother’s right justify the death of the innocent unborn? Why is the mother’s right held above the “valuable life” of the unborn child? What libertarian law gives this result? I cannot find an answer in Block’s theory.

Two rights are in conflict in the eviction theory. One is the right to evict, and the other is the right of the unborn not to be killed. This conflict indicates error in the theory, and it isn’t resolved satisfactorily or theoretically by arbitrarily choosing one right over another.

In evictionism, the error that creates this conflict is the idea that the unborn baby is a trespasser. That’s my current opinion. The entrance of the baby into the womb is not trespassing, and the way in which it occurs alters the relationship between mother and unborn. We need another theory.

The rejection of proportionate response leads to injustice, also signaling a defect in the theory. Rothbard quotes Auberon Herbert:

“Am I right in saying that a man has forfeited his own rights (to the extent of the aggression he has committed) in attacking the rights of others? . . . It may be very difficult to translate into concrete terms the amount of aggression, and of resulting restraint; but all just law seems to be the effort to do this. We punish a man in a certain way if he has inflicted an injury which lays me up for a day; in another way if he takes my life. . . . There is generally underlying it [the law] the view (which is, I think, true) that the punishment or redress – both in civil and criminal matters -should be measured by the amount of aggression; in other words that the aggressor – after a rough fashion – loses as much liberty as that of which he has deprived others.” (The Ethics of Liberty, 1982, p. 81)

In the eviction theory, the limits of medical technology applied to abortion determine what justice is and what is right and wrong, which really means that the difficulty of finding justice in this case is avoided. When babies are aborted and die in eviction theory, this is only because those technological limits are the “cause” of death. The mother’s decision to abort is not the cause. The theory departs from libertarian and/or natural law moorings by relying on technology to justify killing.

The evictionist theory of abortion, despite making some headway, is no more successful than Rothbard’s abortion theory. The abortion of a living human being with rights of self-ownership cannot be justified by supposing that those rights may be overruled because of a fantastical notion that the baby is trespassing. The abortion/eviction that kills cannot be justified by the statement that there’s no other way to remove this human being from the womb, for that statement too presumes that the baby’s rights may be overruled.

Block’s theory should be applauded for boldly departing from Rothbard’s by recognizing the natural fact that an unborn baby is a human being with rights from conception. The theory, however, does not surmount the difficulty of reconciling this fact with the rights of women over their bodies.

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7:39 pm on June 13, 2019