Pro-Life and Pro-Liberty

Statement

Many people express surprise when they learn that I have pro-life views on the legality of abortion. How, they wonder, can a Libertarian be in favor of having such a personal issue decided by the government? I'm happy to address this, because I think the answer tells us a lot about libertarianism, as well as about abortion as a moral and political issue.

Recall that Libertarians believe the central purpose of government is to protect the person and property of every member of the community from violence initiated by others. Similarly, we believe that the central limitation on government is that it should not initiate force against any person except to protect the person or property of another member of the community.

For Libertarians, then, as for most people, the very first question we need to resolve is: How many persons does abortion involve? If abortion is simply a surgical procedure performed on a pregnant woman--one person--then libertarian principles require that the woman be free to do as she pleases without government interference. But if abortion is the deliberate killing of one person for the benefit of another, then it lies at the very heart of all that governments are instituted to prevent and abortion should be legal only when the mother's life or health is itself in danger.

Some people frame the question as "whether life begins at conception." I don't find that very helpful. "Life" began billions of years ago. What matters is when a particular person came into being; a singular, uniquely precious, human life distinct from any other. Obviously a fetus must be alive or else there could be no question of killing it. Just as obviously the life is human; with distinctively human chromosomes, we know it is not a puppy. And finally, the human life in the mother's womb is genetically distinct from the mother; it is not simply a part of the mother's body, or it would have the same DNA fingerprint.

A majority of Libertarians reject this argument, but the party's official platform plank on abortion (section 1.4) takes as neutral a pro-choice view as it is possible to take: "Recognizing that abortion is a sensitive issue and that people can hold good-faith views on all sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration." This is not very protective of unborn children, but at least our party does not trumpet the right to an abortion as a fundamental civil liberty.

This is not the first time in American history that a political controversy has boiled down to the question of who counts as a person. Howard Fineman, in his thoughtful survey of The Thirteen American Arguments, reckons "Who is a person?" to be Argument Number One. It is the argument we have whenever we are on the cusp of expanding liberty, whether to religious dissenters or to former slaves or to formerly subservient women.

In the antebellum south, racial subjugation was routinely defended by otherwise decent people who insisted that black and white people were different not just in color but in kind; that they belonged to different "races." In hindsight, we know that those otherwise decent people were deceived by appearances; genetic research now establishes that there is only one race and it's human.

Decades later the question was not slavery but segregation. Many of us have heard the ringing affirmation, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Some know that the sentence was penned in dissent from a Supreme Court decision upholding a Louisiana law that required racial segregation of railway cars. Plessy v. Ferguson, 163 U.S. 537, 559 (1896). What most people do not know is that just three paragraphs after he declared our Constitution color-blind, Justice Harlan went on to describe "the Chinese race" as "so different from our own that we do not permit those belonging to it to become citizens of the United States." 163 U.S. at 561. I wish I could ask Justice Harlan why he thought Chinese people "so different" that even a color-blind Constitution afforded them no protection. But all I can do is recognize that even a judge who saw the injustice of government-mandated segregation with brilliant clarity, a full 50 years before the rest of the Supreme Court, was still fallible enough to botch the same moral question three paragraphs later.

I think of this when I hear an abortion-rights advocate describe a living, growing fetus as nothing more than a "bag of cells" or something like that. We're all bags of cells; the question is whether some bags of cells have less right to live than others. I think all of us, but perhaps especially Libertarians, should resist that conclusion.

I recognize, of course, that many good people disagree with my analysis of the abortion question, just as many good people disagreed with Justice Harlan. I can try to persuade, but I cannot force them to change their minds. And I know that in the end the law will follow whatever social consensus we are able to develop.

That's what happened with racial segregation. Plessy v. Ferguson was not so misguided as to freeze the legality of racial segregation into place once and for all. States were free to repeal their segregation laws. Private citizens were free to integrate their workplaces, their neighborhoods, and their personal relationships. The culture could correct itself, and it did.

By contrast, the Court's landmark 1973 abortion decision in Roe v. Wade effectively torpedoed the democratic sorting and sifting that had been taking place throughout the 1960s, and left almost no room for legitimate debate on the fundamentals in the 40 years that have passed since the case was decided. Whichever way our society eventually resolves this question, it is very hard for me to see how we can move forward until Roe v. Wade is overturned and the legality of abortion is once again a matter of state law.

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