Unborn Babies Aren’t Trespassers

I reject a portion of Walter Block’s eviction theory of abortion. This blog explains where I take issue with his theory.

Let t(0) be the time of conception, and let t(v) be the subsequent time when the fetus is viable outside the womb. Let t(b) be the time of normal birth.

Block posits that human life begins at t(0). I accept that assumption. He defines abortion as the act of intentionally terminating the pregnancy with the death of the unborn life. I’ll use the same definition in this analysis.

I will not discuss that portion of Block’s theory that analyzes abortions at t(v) and later. I discuss only abortions occurring prior to t(v).

The question raised by an abortion prior to t(v) is whether or not it is aggression against the unborn fetus. Is it murder? It is definitely the taking of human life since the abortion occurs before t(v), by Block’s assumption of human life being present prior to the abortion, but not after.

Block argues that such a killing is not murder because the pregnant woman (the potential mother) owns her womb, doesn’t welcome the fetus, and may evict it on the justification that it is trespassing on her property.

Let me repeat. In his 1977 paper, Block argues that if a woman doesn’t want or welcome the fetus, before or after t(v), she may (without doing anything wrong) evict it. His reasoning is that the fetus in this case of being unwelcome is trespassing. The woman may remove or have removed the trespasser. The so-called trespasser will die if this is done prior to t(v), but Block’s theory says that there is no aggression, no initiation of violence, and therefore no murder done by the pregnant woman.

The first thing I note is that, no matter what we may say about the presence or absence of trespass, the eviction is disproportionate to the purported trespass because it results in killing the life. If the fetus has committed a tort or a crime, its punishment is death. This disproportion is not in keeping with Murray Rothbard’s theory of libertarian punishment. He writes “Thus, it should be quite clear that, under libertarian law, capital punishment would have to be confined strictly to the crime of murder.” The fetus is not charged with murder in Block’s theory, but with trespass.

The more important point to deal with is that, in Block’s reckoning, the fetus apparently has initiated the violence by a trespass.

I consider the notion that the fetus has invaded or trespassed upon the pregnant woman to contradict what we mean by the terms “trespass” and “invasion”. The fetus doesn’t enter the woman’s body across some boundary. The fetus doesn’t have that capability. She already harbors the egg. No invasion there.

What about the sperm? Consider a different case. I do not think we’d say that a dog is trespassing on our land if it happened to pass a “No Trespassing” sign or even dug a hole under a fence nearby and entered. We would not even call that an invasion. Yes, we might say that a swarm of bees has invaded our house. However, this is a metaphor. There is no conscious trespass or invasion by animals, and not by a sperm that’s fertilizing an egg. How can we charge a fetus with an action that it did not take?

Did the fetus accidentally or unknowingly trespass? Not at all, simply because it’s not a knowing life at t(0). Trespass requires interaction with another human who has certain developed faculties.

What’s a trespass? According to a web definition: “enter the owner’s land or property without permission.” The term “permission” assumes a conscious and knowing person is involved, who is allowed to enter. “Without permission” means not allowing to enter that person whom one may have permitted but didn’t. If one does not and cannot give permission to a dumb animal or to a sperm, even if one tries, then one cannot say that they’ve entered without permission. The term doesn’t apply.

One does not even “permit” a sperm to enter. The word permit means “give authorization or consent to (someone) to do something”. The female may permit a man to have intercourse with her, but that’s still not giving permission to a sperm.

That’s my argument #1 against the eviction basis in trespass, which is that it’s a misapplication of terms that mean something else.

Second, if a fetus is unwelcome or unwanted, to use Walter’s terms, that too is not a valid basis for killing it, leaving aside the rationale of “It’s trespassing”. Discomfort, bad luck, accidentally being impregnated, are not grounds for murder. To put it bluntly, a female has to put up with a host of negatives that males don’t, and the opposite is true, the males having to put up with negatives peculiar to their sex. Avoiding these by crimes is not justifiable for either sex.

Third, it’s true as Block argues that the womb is a female’s property. This doesn’t mean that she can do whatever she pleases with it. Property rights do not include aggression against others. If I own a gun, I may not use it to shoot anyone I please. If I own a house, I can’t lawfully burn it down if the fire sets ablaze neighboring homes or other property. If the female has an infection in her uterus, may she lawfully pass it on to others and intentionally infect them? By the same reasoning, the female owns her womb but may not kill human life therein.

Fourth, even if there were a trespass by the fetus, killing it wouldn’t be an allowable response, in the libertarian theory of punishment cited earlier.

Fifth and last, self-defense is a rationale for eviction. That is, the life of the mother is threatened. But clearly trespass in general is not justification for measures of self-defense unless there is such a threat against life or attack. The supposed trespass case is not in the category of self-defense, however. The fetus is described by Block as unwanted or unwelcome, and he argues that this is sufficient for the female to abort.

Do we have a libertarian theory of abortion prior to t(v)? Abortion prior to t(v) is eviction that results in terminating life. The concept of justifiable eviction prior to t(v) completely fails as a libertarian theory. I remind the reader that Block has a theory of abortion under libertarian law for those cases at t(v) and after, when the baby can survive outside the womb with appropriate care. I’m making no comment on that part of his theory.

The libertarian theory places a premium on non-aggression, and that entails not initiating violence. That implies no de novo violence that takes life. This is a prescription for ruling out abortion prior to t(v), viability. What of the female’s property right over her body? I’ve outlined what I think is the libertarian answer, which is that there are illegitimate uses of our bodies, just as there are illegitimate uses of many kinds of property. Abortion prior to viability of the fetus is one of those unlawful uses.

The only way around this conclusion is to argue that a fetus prior to t(v) is not human life, so that there is no aggression against it in an abortion prior to t(v). This is a tack taken by some libertarians. It has to be addressed at another time.


8:22 pm on May 22, 2019

Political Theatre

LRC Blog

LRC Podcasts