Woman and Fetus: Rights in Conflict?

The author of Defending the Undefendable reaches some unexpected conclusions.

There are, perhaps, more serious problems than abortion facing our society, but there are none which raise such grave philosophical problems or so greatly threaten to tear our society apart. In all other cases—war, inflation, unemployment, nuclear proliferation, pollution—we all agree at least to the extent of opposing the threat. Where are the proponents of war, sickness, disaster? There may be little agreement as to the best means of eliminating the danger or of the proper trade-off between one evil and another, but at least there is no support for the menace itself.

The situation with respect to abortion is different. Here, two groups are arrayed against each other, with irreconcilable positions on ends, not just means. Each takes an explicitly ethical stand and holds the other guilty of severe criminality.

On the one hand are those who would legalize abortion on the ground that women have the right to control what grows in their bodies. On the other hand are the antiabortionists, who consider the practice to be first-degree, premeditated murder. One would have to go back to the days of the proslavery and antislavery movements of the first half of the 19th century to find a public issue even remotely as vexing. And we all know the result of that controversy. It therefore behooves us to search mightily for ways to make peace between these seemingly irreconcilable positions.

What is the best way to approach the bewildering maze of arguments in which the philosophical controversy is shrouded? The answer is: from a perspective consistently based on human rights, justice, and liberty—the libertarian philosophy. In what is to follow, then, I intend to state the fundamental axiom of this perspective, set forth several obvious facts about fetuses, and deduce from these few premises some conclusions about abortion.

The basic libertarian postulate is that it is improper to threaten or commit violence against a person or his property unless he himself is an initiator of such violence. In other words, one may legitimately use force only defensively, or in retaliation, but not otherwise. Human rights to one's own person and to one's own property (property rights) are sacrosanct. They are, or rather ought to be, free from any and all interference.

With these basic postulates in mind, let us consider some relevant facts.

WHAT IS A FETUS?

1. The fetus is a living 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.

What of the position, held by many proabortionists, that the fetus is a potential, but not an actual, human being? This is a view easier to state than to defend. If it is claimed that something is a potential x, as opposed to an actual x, it must be shown why and in what way the thing is not an x now. This the proponents of the position have not done. Indeed, they cannot.

Is the fetus only a potential human being because it is helpless and unconscious? But then sick or comatose adults would not be human beings either. Is the fetus only a potential human being because it is small, frail, and weak? But then midgets could not be considered human. Is it because the fetus is a "parasite," completely dependent on its "host" for sustenance? But the same can be said for many hospital patients, who are obviously alive. Is it because the fetus is inside and completely dependent upon an "artificial" (what could be more natural) environment? Then what of all the people who could not exist outside of and apart from oxygen tents, Kidney dialysis machines etc? And what about premature babies and hemophiliac children who cannot live outside of their specially constructed environments?

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. (Before this, of course, there is no human life; there are only two separate cells, the egg and the sperm. This is why contraception is not equivalent to killing a human being.)

2. The fetus that issues from rape has the same rights as any other fetus.

In discussions about abortion, exceptions are commonly made for rape cases. It is claimed that when pregnancy takes place as the result of forced intercourse, abortion is justified.

This line of argument entirely misconstrues the problem. The question of abortion is entirely one of settling the seemingly conflicting rights of the mother and the fetus. The father is irrelevant! It does not matter one whit how the baby was conceived—voluntarily or involuntarily. Every fetus, no matter how created, is a living human being.

There is no rational or humane way to distinguish between them, allowing some to live and others to be killed. Logic, then, compels us to conclude that the fetus conceived in rape has as many (or as few) rights as any other. A correct view of abortion must consider the rights of all fetuses as equal.

A CASE OF TRESPASS?

3. The fetus may be a trespasser.

Suppose a Karen Ann Quinlan suddenly materializes in someone's living room, comatose and helpless. All the "authorities" are called, but no one is willing to take her away. What rights, duties, obligations, responsibilities fall upon the host?

Given our basic axiom, the host has no positive obligations to come to her aid. Now it may be nice, it may be "the only decent thing to do," but the host is not duty-bound to provide sustenance. This follows from the premise that each person is sovereign, owing nothing not voluntarily agreed to (except, of course, for the obligation not to initiate violence, which applies to each of us whether or not we have consented).

This might seem excessively cruel. After all, Ms. Quinlan is in need of help. Nevertheless, the host has no obligation to help her. If anything, the host should be the least liable member of society; for he has already made a contribution: his house has sheltered her, and is continuing to do so, while a decision is being made about what to do with her; no one else has contributed anything (except perhaps for griping that the owner of the house should continue to support her). Suppose the comatose person clings to life for decades. Would the host have to feed and care for her until she dies a natural death? Suppose he can't afford the expense. Is he criminal? No. However important human life is, no one is rightfully incarcerated for failing to come to the aid of the helpless. One may only be jailed for attacking innocent people.

Judith Jarvis Thompson, in the Fall 1971 Philosophy and Public Affairs made a similar point.

In some views, having a right to life includes having a right to be given at least the bare minimum one needs for continued life. But suppose that what in fact is the bare minimum a man needs for continued life is something he has no right at all to be given? If I am sick unto death, and the only thing that will save my life is the touch of Henry Fonda's cool hand on my fevered brow, then all the same, I have no right to be given the touch of Henry Fonda's cool hand on my fevered brow. It would be rightfully nice of him to fly in from the west coast to provide it…but I have no right at all against anybody that he should do this for me.

…having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person's body—even if one needs it for life itself.

So what should the host do? He is not obligated to care for the stricken person. But neither may he kill her. If other people are willing to accept responsibility for the victim, the host may notify them. If there is an equivalent of the "church steps" or the public meeting place where unwanted babies are commonly left for people to pick them up, our homeowner may carry the victim there. May he tie her to his car and drag her along the road? Is he allowed to stab her or slit her threat? No. Even though the victim is dying and may not survive the trip in any case, the host may do none of these things; for they are murder, and murder is not permitted under the libertarian code. What he can do is to transport her to the "church steps" or the modern equivalent in as gentle a manner as possible. He is not required to keep her alive, but he may not kill her.

Notice that this argument is not based in any way on the so-called right to life, Professor Thompson notwithstanding. The victim has no such right, I contend; nor does anyone else. There are rights to liberty and to the pursuit of happiness, but there is no right to life itself. A Robinson Crusoe who has the misfortune of being shipwrecked alone on a desert island and starves to death there has not had any of his rights violated. He had no right to life in the first place. If he did, and was accidentally shipwrecked and starved to death, then all the rest of us are guilty of murder. For every right implies an obligation. If anyone has a right to life, then everyone else has an obligation to keep that person alive. If we do not do so—if he dies, for any reason, including old age—we are guilty of violating his right—we are guilty of murder.

We must always distinguish between the means to live or to live well—which goes under the contemporary misnomer "economic freedom"—and not being interfered with in one's attempt to live well—political freedom. While every person has a right to the latter, the former—"freedom from want"—is not a right at all. To acknowledge it as a right would be equivalent to compulsory socialism, where everyone is forced to be the guarantor of everyone else's well being. And if "right to life" is interpreted etymologically as "freedom from death," it becomes even more irrational and incomprehensible.

What does all this have to do with abortion? The fetus, if uninvited and unwelcome, is to the pregnant woman what Karen Ann Quinlan would be to the homeowner: a trespasser. If the homeowner and the pregnant woman volunteer themselves as ongoing caretakers and as hosts, then Quinlan and the fetus are treasured guests; but if unwelcome, they are both trespassers.

INVITED TRESPASSERS

Now many people might accept this characterization when applied to an adult Karen Ann Quinlan. Although unfortunate, she is an unwelcome guest, especially if she just materializes in someone's living room. But the fetus, it will be objected, is different. Let us consider the following criticism: "O.K. I agree. There are no positive obligations incumbent upon people unless first voluntarily agreed to. There are no rights to life. Fine. But didn't the woman who voluntarily engaged in sexual intercourse explicitly, or at least implicitly, agree to bear the child, at least for the term of pregnancy? How can the fetus be a trespasser, for goodness' sake, when the woman invited it into her womb by voluntarily taking part in the sex act, knowing that one of the likely effects of such activities is pregnancy?"

This objection will not stand up, for it introduces a double standard that is insupportable, a standard based on considerations extrinsic to the fetus itself. The morality of abortion must be decided on the basis of the nature of the fetus and of pregnancy, not on the basis of how it came into being. We have shown that all fetuses are, morally speaking, on the same level. Regardless of the circumstances of their conception, they are all alive and human. Therefore, they have the same rights. Thus it is moral nonsense to claim that a fetus conceived by rape may be killed while a fetus conceived by voluntary sex may not.

No, we will stand by our position. Since fetuses are dependent on the owners of the wombs in which they reside, they derive their status from those owners' attitudes toward them. If the owners (mothers) do not want them, they are trespassers; it doesn't matter whether or not they were invited in the first place. The woman, like the homeowner, has the final say and is not obliged to provide long-term sanctuary. A guest may be asked to leave. A fetus may be removed.

This does not mean that a person may invite someone out for an airplane ride and then, while 10,000 feet up in the air say, "Oh, by the way, the invitation was for five minutes only. And guess what? The five minutes are up right now. So out you go. Toodle-oo, Cheerio." No, this would be fraud at an almost ludicrous level. On the other hand, a dinner guest has no right to insist upon a nine-month visit! Even if voluntary pregnancy is interpreted as an "invitation" to the fetus, the mother is not compelled to stretch out the invitation for the full term.

Moreover, there are grave problems with the view that the women engaging in voluntary sexual intercourse makes an implicit contract (of invitation) with the fetus.

When A (the woman) agrees with B (the man) to an act that produces C (the fetus), this cannot be construed as an agreement with C, who doesn't even exist at the time of the agreement between A and B. It is impossible to enter into a contract with someone who doesn't exist. How do we know that the nonexisting person, C, agrees to the contract? A person cannot agree to be given birth to!

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.

GENTLE ABORTIONS

As a trespasser, the fetus may be removed, or aborted. But, as in the Quinlan case, the trespasser must be removed with as much care and gentleness as possible. It is extremely unfortunate that due to the proper exercise of rights, a death will almost certainly occur. (Given the state of the medical arts, there is a present extremely small likelihood of a fetus being aborted that will maintain its life.) The fetus will die. A unique individual human being—a potential Mozart, Einstein, or Mises, precious to all mankind—will have died. This is a terrible tragedy, not something to be lightly considered. The death of every human being diminishes us all, if only in view of potential contributions gone forever. Nevertheless, the reasoning is clear, and we must follow wherever it takes us.

Perhaps the abortion question gives our society so much trouble because the extreme cases have not been recognized as classic "life-boat" situations. In cases of this sort, as the name implies, there exist the means to save the lives of only some of the people involved. Thus, we are necessarily faced with unappealing alternatives.

The cases that fit the life-boat model are those in which mother and fetus cannot both survive. To save the mother's life, the fetus must die. To save the fetus, the mother must die. Clearly, even if we believe in the "right to life," that belief would not help us decide what to do. For abortion would be as prolife as nonabortion. Fortunately, the "right to life" argument is as unnecessary as it is unhelpful. For the life-boat paradox can be solved by recourse to property rights. Who owns the boat? But in the unwanted-pregnancy predicament, the mother clearly owns the "boat"—her own body. It is to her, and to her alone, that the decision falls.

All fetuses, despite the manner in which they were conceived, or the consequences of their existence for their mothers, have identically equal rights. So in all cases (voluntary, healthy pregnancy; rape-induced pregnancy; medically contraindicated pregnancy) the fetus is a dependent guest and may be expelled at the discretion of the mother. If the mother's life is threatened, she may abort the fetus as the owner of the relevant property. She may also have an abortion for any other reason that seems compelling to her. But, she must remove the trespassing fetus in the gentlest manner possible.

Although we started with the seemingly antiabortion premise that the fetus is human life, we have come to proabortion conclusions. But this is not the end of the matter. We must reverse field once again. Our conclusion may be unwelcome to proabortionists and antiabortionists alike.

If and when medical science allows us to devise a method of abortion that does not kill the fetus (this has already come to pass in some limited cases) then, all other things being equal, it would be murder to abort in any other way. It would be murder, and it would have to be punished as infanticide. One would be no more justified in aborting in a death-causing manner than in slitting the throat of a Karen Ann Quinlan.

If the life-preserving method cost appreciably more than the life-destroying one and the mother was unwilling or unable to take on the additional expense, she would have no positive obligation to preserve the fetus's life. If anyone else was willing to provide the necessary funds and she refused them this opportunity, she would again be guilty of murder. It is only if no one else was willing to pay the additional amount of money necessary to maintain its life that the baby might legitimately be aborted in a non-life-sustaining manner.

If the method could be used only at a certain state of pregnancy, the woman would not be required to maintain the fetus until then. She would have the right to remove the trespassing fetus immediately, just as she does now. Only if the life-saving method could be used at the time the woman wishes to have an abortion would she be obliged to use it.

The conclusion that, other things being equal, the woman would have to abort by the life-preserving method may present problems for the victims of rape and incest, as well as for women who simply change their minds. The rape victim may see it as particularly onerous to be forced to give life to the progeny of the hated rapist. But it is not a matter of choice for her! Just as a woman may not properly kill an infant child of a man she has come to hate, so a woman may not properly kill the offspring of a rapist if there is a technique of abortion that can preserve its life. She would not be obliged to maintain it, of course, but neither would she have the right to kill it if it could be removed alive. Child of rape, incest, both, or neither, the fetus would have its chance to live.

Mr. Block is the author of Defending the Undefendable. An earlier version of this essay appeared in the Libertarian Forum, September 1977.