THE "RIGHT OF ABORTION": A

DOGMA IN SEARCH OF A RATIONALE

by Edwin Vieira, Jr.

A response to Murray Rothbard, Tibor Machan & Walter Block

1.

THE "RIGHT OF ABORTION": A DOGlVlA IN SEARCH OF A RATIONALE

by Edwin Vieira, Jr .

Abortion seriously divides libertarians.

This article will examine
the arguments of three libertarians who support abortion as a legal
right: Walter Block, Tibor Machan, and Murray Rothbard.* None of them
has advanced a case for this alleged right.
Whether the unborn are "persons", in the sense of human beings en
titled to legal rights and immunities, pervades the debate on abortiono
Rothbard claims, however, that "trying to define the exact point at
which human life begins ... bogs the argument down in biological techni
calities" irrelvant to the legal issueo He adopts the position that,
even if the unborn are human beings entitled to rights and immunities,
they suffer no depriviation of these through abortion.
If the unborn
are not persons p though, further investigation is unnecessary, since
only persons can have legal relations with other persons.
To determine
whether the unborn are human beings is therefore relevant.
Machan asserts that an unborn individual is only "a human fetus or a
human embryo", not "a full-fledged human being or person".
This dicho
tomy rests on his definition that "(a) human being or person is an ani
mal with at least the latent capacity for rational thought and choice",
and on the contention that the unborn, "until late in their development",
have only "the potential" but not the capability for such thought and
choiceo
The problems with this line of argument are several and serious.
First, Machan never justifies his definition of a person.
SecQnd, he never distinguishes "latent capacity" from "potential"
The adjective "latent" is crucial. Even if the capacity of an indivi
dual (what he can do now) is different from his potential (what he will
be able to do later), how does "latent" capacity" differ from "poten
tial"? An individual cannot have a latent capacity to do something un
less he has the potential to do it g and vice versa.
The qualification
"latent" retains within the category "human being or person" individuals
temporarily incapable of "rational thought and choice", tecause asleep,
unconscious, or intoxicated.
The adjective vitiates the disti n ction,
however.
For it would not strain language to describe a coma tose or
intoxicated individual as potentially capable of "ratio n a l th ought and
choice" -- that is, capabl e if his biological mec han i sms ov ercome trauma
or purge toxins from his sys t e m. And if t he s e temp orar il y incapacitated
individuals are "persons", e n t i t l e d to r i g h t s , because t h eir bodies can
0

* All statements quoted herein are drmm from t"J Block, Defending the

Undefendable (1976); idem, "Woman and Fetus: Rights in Conflict?",

Reason (Apr. 1978); idem, "Toward a Libertarian Theory of Abortion",

Libertarian Forum (Sept. 1977); Machan, "The Morality of Noninterference",

Reason (Apr. 1978); M. Rothbard, For a New Liberty (1973); idem, "Should

Abortion Be a Crime?", Libertarian Forum (Jul. 1977L

2.

restore them to a wakeful condition, why are not the unborn similarly
entitled, since their innate biological processes (absent disease, ac
cident, or intervention) will inexorably empower them to engage in
"rational thought and choice"?

,.

Third, Machan nowhere defines "rational thought and choice", although

he makes the existence of human rights and immunities depend upon this
criterion. Neither does he indicate who decides what constitutes
"rational thought and choice" -- that is, who judges the humanity, and
capacity for rights, of other individuals.
By leaving such conundrums unresolved, Machan provides a rationale
for elitism:
Those individuals who consider themselves uniquely capable
of "rational thought and choice" may deny legal rights to everyone else.
Of course, there is nothing novel in the notion of a class of beings
specially privileged to rule others according to criteria invented by
themselves. Prior to the Civil War, it served as the main prop in the
"positive-good" apology for negro chattel slavery; under the nazis, it
appeared in the Herrenvolk theory; and, for contemporary communists, it
rationalizes the oligarchy of their "vanguard party". What is novel is
Machan's implication that elitism comports with libertarian principles.
Block and Rothbard avoid the pitfall of elitism by admitting or as
suming for purposes of argument that unborn individuals are persons,
entitled to rights.
But they deny that abortion abridges these rights.
Rothbard considers the issue trivial
No one, he argues, will make the
"absurd" contention that "a full, adult human being has the legal ...
right to remain enclosed within the body of another human being without
the latteris consentoooo
But if no adult human has such a legal right,
then a fortiori,
the fetus cannot have such a right either". Why":.
fortiori"? The term ":. fortiori" implies that, because one conclusion
is valid, therefore another that it subsumes, and that is less improbable
or unusual, must also be valido
Yet what is more improbable than "a
full, adult human beingo . remain(ing) within the body of another"? And
what is less unusual than an unborn individual g estating in its mother?
Indeed, the most likely presumption from the biological facts would be
a right in the unborn to remain within their mothers, and an absence of
right in adults to reside in other peopl es ' b odies -- that is, different
legal relations in the two dissimilar case s , not an ":. fortiori" sim
ilitude, as Rothbard cla ims.
0

From inapt analogies, Rothbard tu r ns to question-begging.

"What hu
he asks rhetorically, "has the right to remain, unbidden, as an
unwanted parasite within some other human being's body?" Now, as a mat
ter of biology, the unborn are not "parasites", since the host-parasite
relation can exist only between different species. Neither is it a ppro
priate to label them "parasites" in a legal sense~ abse n t pr oof of tha t
status independent of its mere assertion.
To say t ha t t h e u nborn a re
"parasites" in a legal sense implies that they have no i mmunit "rom
abortiono
But that is the very issue presented for dec isi on , no t an
accepted premiss of the argument
man"~

Rothbard also argues that, even if the mother "originally wanted or

at least was responsible for placing the fetus within her body", she may,

3.

"as the property owner in her own body, .. change her mind and .. eject
it",
For, he says, "every individual has the absolute right to own, to
control, . her own body",
Block agrees, "(C)ontinued unwilling preg
nancy is a violation of the mother's rights to her own body", and there
fore a form of slavery.
The argument that abortion is legi tima te be"':';'
cause a woman has a privilege to control what is biologically her own
body, however, begs the question of what rights a woman has to endanger
someone elsevs life through her actions. Every person has a privilege
to control his own body only in so far as that control does not result
in aggressive injury to another human being.
Rothbard and Block simply
evade the issue, therefore, when they defend abortion on the ground of
"women's property rights",
If, as they concede, the unborn individual
is a person, entitled to rights, to the extent of those rights he can
not be entirely defenseless against his mother's use of her own property
to threaten his life.
Rothbard attempts to bolster the "property" argument with ideas drawn
from his curious "will theory of contract". Abortion is legitimate,
he claims, because to deny a woman the privilege to change her mind
about continuing a pregnancy would amount to "alienating her will",
thereby enslaving her, Why a person's will is inalienable, however, he
never explains.
Nor could he.
The entire system of contract and pro
perty which libertarians take for granted depends upon exactly the
opposite of what Rothbard asserts: namely, that once a person has taken
appropriate steps to transfer property to another, his control over that
property ceases, never to return by unilateral willing on his part,
If
one element of "property"p in the legal sense, is the ability of the
owner to project his will upon material objects in order to control their
use and disposition, then transfers of property must entail alienation
of one's will with respect to the property transferred. Moreover, there
is no self-evident reason to exclude from this result the property one
has in his own person.
Rothbard and Block defend abortion on the basis not only of purported
property rights in women, but also of absences of rights in the unborn.
The victim of an abortion, says BlcLck, suffers no deprivation of right
because, although "(t)here are rights to liberty, and to the pursuit of
happiness, . , . there is no 'right to life' itself", "(E )very right", con
tinues Block, "implies an obligation,
If anyone has a right to life,
then everyone has an obligation to keep that person alive," And this
both he and Rothbard deny.
"(N)o human being", the latter declares,
"has the legal right to keep itself alive at someone else~s expense. No
human being can have a legal claim up on someone else to perform any
actions to keep it alive." Surely the notion that there is no "right
to life" would surprise people schooled in the teaching of the Due Pro
cess Clauses of the United States Constitution.
frut this is only be
cause Block and Rothbard use the tern in its socialist, not its liber
tarian,sense.
The classical-liberal right to "life, liberty, and property (the pur
suit of happiness)" are rights -- or, more properly, immunities
which run against government.
They limit the authority of government
to deprive an individual of these values, or to fail to protect him in
their enjoyment; but they do not impose a duty on any public agencies or
private citizens to provide opportunities, wealth, or other material


4.
ame n i t i es of life.
In short, Block is wrong.
There is a "right to
life ": the right not to be killed by an aggressor.
Indeed, that right
precedes al l others. How could one claim rights to liberty and property
if others could deprive hi m of life itself at their discretion? On the
other hand , there is no r i gh t to be given life. But neither are there
rights t o be given liber t y , in t h e sense of opportunities the market
withhol ds, or proper ty , i n th e sense of material wealth others prefer
not t o transfer. Abor t ion , h owever, does not involve giving life, but
tak ing it. The unborn i n d ivi dual has already received his life through
the natural proce s s of conception.
Those whom Block and Rothbard de
fend wish to depr i ve t h at individual of what he has through "medical"
intervention . To s ay that they may do so because the unborn has no
right to life begs the question of what his rights are.
Admi t tedl y , there is no socialist "right to life", no general right
to de ma nd t h at others supply the means of oneqs existence. But Rothbard
is wr ong to claim that no one can have a particular right to keep himself
alive a t someone else's expense or through someone else's actions. Such
r i ghts would be enforced every day in any libertarian society. For ex
ample, i f through negligence a motorist seriously injured a pedestrian,
t h e law would require the motorist to pay money damages measured by the
medical bills incurred to keep the injured person alive.
Or, if the
motorist were a medical doctor, the law would require him to perform
appropriate emergency actions at the accident scene to save the life of
the person he injured.
Or, the law might require motorists not to use
their property in certain ways, such as moving at high velocity through
school-zones, so as to protect the lives of others . Each of these cases,
however, involves a situation in which one person is kept alive or pro
tected from fatal injury at someone elseis expense or through someone
else's involuntary actions.
In terms of the legal principles involved,
then, there is nothing radical in the position of those opposed to abor
tion who argue against any privilege in a woman to take actions that will
necessarily result in fatal consequences to her unborn child.
Block and Rothbard go beyond a mere negation of the unborn individu
alvs right to life, however.
Block argues that "each person is sover
eign, 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)". He never explains, though, either
why a person is bound -- and how he is bound -- to accept the non-aggres
sion principle even without consent; or on what ground that is the unique
involuntary obligation. Surely the non-aggression principle does not
rest on the ground asserted by Block, that "each person is sovereign" -
for a truly "sovereign" person operates under only such obligations as
he willingly assumes.
But, even if Block is accidentally correct on
this point,
it does not advance his case for abortion.
, If an unborn individual is a person, entitled to rights, he is en
titled to the right to life (in the libertarian sense).
This right
implies a correlative duty in all other persons not to take his life,
except in two cases: first, if the child commits aggression against
the life of another person; and second, if the continued lives of the
child and another person are mutually incompatible because of existen
tial circumstances beyond their control.
The first case raises the
privilege of self-defense, which permits a victim of aggression to pro

tect his own life, even if that protection requires taking the aggres
sor's life.
The second raises the privilege of self-preservation, which
permits an innocent individual to take the life of another innocent in
dividual in an "emergency" situation in which both cannot survive and
the survival of one depends upon denial to the other of the means of
~
survival.
The question Block does not answer is whether abortion comes
within either exception to the duty of each individual to respect and .
preserve the life of every other person.
Abortion is not an exercise of the privilege of self-defense unless
the unborn child is an aggressor. Aggression requires either an act of
will or an act of negligence on the part of the alleged aggressor -- for
it is hardly just to hold an individual responsible for the consequences
of existential forces beyond his control , Aggression does not exist if
human action, in the sense of purposeful behavior, is not involved at
all.
Now, his own creation is not a purposeful or negligent act of the
unborn child, but is rather the inexorable result of biological forces
independent and beyond the control of the child, and brought into play
by the acts of others.
Therefore, since the unborn individual is not
responsible for his own creation, he cannot commit aggression by coming
into -- indeed, being brought into -- existence.
But, since an unborn
individual is not and cannot be an aggressor against anyone, how can his
mother invoke the privilege of self-defense against his continued exis
tence in the one place in which, at this stage in his development as a
human being, it is both logically and biologically appropriate for him
to be?
Similarly, abortion is not an exercise of the privilege of self-pre
servation unless the pregnancy endangers the lives of both the unborn
child and the mother.
The privilege of self-preservation applies only
in those "lifeboat" situations wherein the lives of two or more innocent
persons are in jeopardy, and not all can be saved.
But pregnancy is
not such a situation in the normal case, the case that both Block and
Rothbard claim is appropriate for abortion,
(Of course, were an extra
ordinary pregnancy a "lifeboat" situation, the mother woul d have a pri
vilege to defend her own life through abortion, or t o c hoose to g i ve up
her life to save the child, if poss ible.)
In s um , lo ck ' s own t h e ory
that pregnant mothers must accept t he oblig a t i on not to i n i t i ate violence
leads to a conclusion exactly the opposi te of that he advances .
Rothbard tries to sever Gordian knots of t h is k i nd th~ough s e mantic
legerdemaino
"Abortion", he advises, "should be l ooke d upon n ot as
killing the fetus but as ejecting it from the mother' s body .
The fact
that the fetus might well die in the course of the ej e ct "on is incidental
to the act of abortion".
The techniques employed in contemporary abor
tion-operations, however, prove beyond cavil that t h e d eath of the un
born child is the very purpose of what Rothbard euph emistically styles
"ejection".
In most cases, death of the child is caused before, rather
than during or after, ejection; ejection is usually a consequence of the
childQs death and not vice versa , This fact is vital, since intent is
an important criterion--rr:llaw for distinguishing innocent from criminal
homicides.
No one can seriously argue that a landowner could success
fully assert in defense of a criminal charge that the death of a tres
passer whom he had hurled from his property by means of a shredding
machine should be considered merely "incidental" to the act of "ejection",
and therefore not an unlawful killing.

6.

Block, however, suggests that bothering to define the rights of the

unborn is unnecessary in any event: "Since foetuses are dependent on
the owner of the womb in wh ich they reside, they derive their status
from that owner's attitude toward them, ... A guest may be asked to leave.
A foetus may be removed ." Block admits, though, that one person may
not invite another for a ri de in his airplane and then, at high altitude,
revoke the license a nd e xpe l the passenger, IINo", he says, IIthis would
be fraud at an almost l ud i crous level. But why is Blockvs passenger
not completely dependent for his "status ll on the plane's owner? If the
passenger has a right no t to have his life jeopardized by another per
son's fraud, ye t he ch ose not to protect himself against fraud, and to
expose himsel f to the consequences , Conversely, an unborn individual
has no abili ty to protect himself against anyone, and no choice but to
expose hims el f t o the continued good will of his mother -- being, after
all, the mother 's captive. If Block can invoke fraud ~a deus ex machina
to save h i s passenger by requiring the pilot to return him safely to the
ground, why cannot those opposed to abortion also successfully argue
that a cr e a ted person has, by his creation in a state of dependency, a
righ t to be preserved and protected by his creator until the creator can
trans f er that duty by contract or waiver either to another protector or
to the created person himself?
1I

But an even more interesting problem lurkes in Block's theory of

"status" , If an unborn individual derives his "status from his mother's
attitude towards him, he also derives his personhood and rights there
from. For, if his mother may destroy him before birth at her discretion,
he can become capable of exercising rights only through her sufference.
Why, then, may not mothers argue that they confer rights on children
they bear only contingently -- that, in short,they reserve some or all
of the absolute power they wielded before birth to limit their childrens D
rights as they (the mothers) see fit at any time? Under cornmon law,
after all, if one person has the discretion to confer rights or privi
leges on another, he may normally condition such rights or privileges
as he grants in whatever manner he likes, Most likely, Block would re
coil from the proposition that the young are the slaves of their mater
nal parents. But his own reasoning lends forc e to such an anti-liber
tarian contention o
lI

The fundamental question in the abortion debate is whether a created

person has, by his creation in a state of dependency, a right as against
his creator to be preserved and protected u ntil the creator can transfer
that duty by contract or waiver to another protector or to the created
person himself. Rothbard begs this question by holding it "absurd to
blame the mother for a birth control mistake.oowith a birth control mis
take, the fetus is the invader". Of course, if the u nborn individual
is an "invaderll, in the sense of an aggressor, he can have no rightful
claim against his mother, by hypothesis. But how an individual can
aggressively create himself in a state of dependency on his mother, Roth
bard does not explain. If, however, the unborn is himself innocent of
aggression, then whether his creation was the result of his mother's
will or a mistake is irrelevant. Legal responsibility for the welfare
of others can arise from negligent, as well as from purposeful, actso
Block, at least, seems to sense that he, Machan, and Rothbard present
an insubstantial case for abortiono He admits, for instance that "(i)f

7.

and when medical science devises a method of abortion which does not

kill the foetus . then it would be murder to abort in any other way".

But one such non-homicidal method is available today: normal birth.

Why the unborn individual would have a right to Block's special medical

procedure but not to a normal birth (followed in both cases, assumedl~,

by adoption if the mother did not want the child)p Block does not say.

Block then attempts to rationalize abortion as a "classical 'life

boat' situation". He correctly notes that "(t)he cases which fit the

life-boat model are those in which mother and foetus cannot both sur

vive".
But he fails to relate these extraordinary cases to the normal

pregnancy in which both individuals do survive.

Finally, Block raises the "Karen-Quinlan analogy".

"Suppose", he
muses p "a Karen Anne Quinlan suddenly materializes in someone's living
room comatose and helpless ... (W)hat should the host dO?o.oIf other
people are willing to accept responsibility for the victim, the host
may notify them . He is not required to keep her alive, but he may not
kill her". What has this to do with abortion? The actual Karen Anne
Quinlan case involved a person whose illness was incurable at the pre
vailing state of the medical arts, but who could be prevented from dy
ing by technological intervention. The Quinlan parents wanted not to
intervene in the course of nature when intervention seemed hopeless
and unreasonable.
The proponents of abortion take a position diametri
cally opposed to this.
They want to intervene in a natural process
that normally leads to continued life~ whereas p the Quinlans wanted to
stop intervening in a natural process that they believed would lead to
death. Moreover,
in the normal pregnancy situation, the unborn child
does not simply "materialize" out of nowhere p but is created by the
acts of his father and mother.
In addition, at the present level of
medical science, not killing the unborn in most cases requires that
the mother keep him alive through the natural gestation process.
Thus,
Block's reference to the Quinlan case provides arguments against, rather
than for p abortion.
In sum, Block, Machan, and Rothbard fail to establish the l~gitimacy
of abortion. Abortion involves at least four issues: (1) Are there
such things as "rights"? (2) Should individuals be forcibly restrained
from, and penalized for, violating each others"'rights"? (3) Do unborn
individuals enjoy the same "rights" as those who have been born? (4)
What is the content of their "rights", as against their parents? As
"far as I am concerned, neither Block, nor Machan nor Rothbard has an
swered any of these questions satisfactorily.