Imagine for the purposes of this post that personhood begins at conception, as many pro-lifers believe. Imagine further that you’re a standard self-ownership libertarian, who believes that all people, fetuses and their mothers, have an absolute right of control over their bodies. What should abortion law be?

I. Standard Libertarianism is Pro-Choice

The most common answer is to take a radically pro-choice stance: because women own their bodies, they have an absolute right to do what they like with themselves, and as a result, they have a right to abortion. Some libertarians qualify this right by requiring that women give live birth to viable fetuses or at least to near-term fetuses, but the standard view, as I encounter it, is that while women may be morally required to give birth in late-stage pregnancy, they cannot be legally required to birth a child rather than having an abortion. After all, they own their bodies. So libertarian opinion tends to range from radically pro-choice to the more moderate viability-qualified pro-choice position I have described. The point is that the legality of abortion does not really depend on the personhood of the fetus for libertarians. Even if fetuses are persons, they’re simply unfortunate enough to have mothers that prefer to kill them than compromise their bodily autonomy. Such abortions may be immoral, but they should not be illegal.

II. Prohibiting Third-Party Provision of Abortion?

I’d like to challenge this view. Perhaps other libertarians have advanced this line of reasoning in the past, but I’ve never run across it. While a self-ownership libertarian should probably hold that pregnant women have an absolute right over their bodies, libertarians can deny that women have the right to contract with others to help them with their abortions. The natural line of response is that if you have a right to your body, you have the right to voluntarily delegate that right to others. But I don’t think that follows in this case. Remember: no one has the right to kill the fetus directly. The only reason a pregnant woman have a right to an abortion is because she has a right to use her body as she pleases. She would have no right to kill a fetus outside of her own body. Thus, no third-party has the right to kill the fetus (again, assuming fetuses are always persons). In this case, the right of the fetus not to be killed trumps the right of the mother to delegate her right over her body to another person. So when a pregnant woman hires an abortion provider to kill her child (per assumption), she is essentially hiring a hit man, something libertarians are almost always opposed to.

So we end up with the unusual position that if fetuses are persons, then on standard libertarian views, pregnant women have an absolute (or viability-qualified) right to abortion, but they are not permitted to delegate that right to another person and no one else is permitted to take up that right.

III. The Life of the Mother and the Doctrine of Double Effect

A natural reply is to ask about the life of the mother. Surely if a mother’s health is seriously endangered by the child inside of her, she has a right to delegate her abortion right to another person. I think that is right in this case, but only due to the activation of the Doctrine of Double Effect. Because the woman is not attempting to kill the child, but the child dies as an unintended, albeit foreseeable result of preserving her body, then the abortion is permissible even if the fetus is a person. And so hiring someone to help with the abortion should be similarly permissible.

But the DDR should only apply when the aim is preventing the mother from dying or enduring grave bodily harm. And this is because the conditions of the DDR aren’t met in other cases. Here’s the SEP’s description of the conditions:

A person may licitly perform an action that he foresees will produce a good effect and a bad effect provided that four conditions are verified at one and the same time: (1) that the action in itself from its very object be good or at least indifferent; (2) that the good effect and not the evil effect be intended; (3) that the good effect be not produced by means of the evil effect; (4) that there be a proportionately grave reason for permitting the evil effect.

When a medical procedure preserves the life of the mother, the action in itself is good. In this case, it is plausible that only the good effect (saving the mother) is intended, not the bad effect (the death of the child). The good effect is not produced by means of the evil effect (presumably saving the mother’s life does not usually require killing the fetus first). And finally, there is a proportionately grave reason to permit the evil effect, as we must choose between the life of the mother (or preventing a grave harm to the mother) and the life of the fetus.

But in cases where the mother’s life is not at risk, it is hard to see how abortion meets these conditions, unless you place so much weight on the value of the mother’s ability to live freely for nine months that it overrides the value of a child being able to live its full lifetime. But while you might personally value autonomy that much, libertarian theories of justice cannot justify this valuing, and so cannot justify codifying it. Libertarians weight the right of all innocent persons to live equally, and if fetuses are persons, then they must be included. Highly valued autonomy for the mother cannot trump the right of the child against the third-party abortion provider.*

IV. What Protection Agencies and the Minimal State May Do

So, suppose that fetuses are persons, what does this mean for a libertarian legal code? It means that either the minimal state or protective agencies are required to prohibit the provision of abortion by third parties but to permit abortions induced by the mother alone (perhaps with the viability qualification attached). This means that no mothers are punished for having an abortion, just the third-party providers.

And note that this is pretty much all pro-lifers want in the first place. Very few pro-lifers want to throw mothers into prison. Instead, they prefer to prosecute abortion doctors. If fetuses are persons, then I think standard libertarianism frequently requires their prosecution.

An objection: under market anarchism one must hire a protection service in order to have a right to have others protect you, and the fetus cannot hire its own protection service. So it may seem that the fetus has no right to have the protection agency stop its mother from hiring a third party and to prevent the third party from providing the service.

But here we can appeal to a libertarian account of children’s rights where parents are the natural homesteaders of guardianship rights but can lose guardianship in cases of severe neglect. So children, as non-adult persons, cannot be owned, but the right to raise them can be owned. And those rights do not include the right to hurt the child. If the guardian wishes to hurt the child and makes plans to do so, then she forfeits her guardianship rights, which can then be homesteaded by others, as guardianship has returned to the commons.

So long as the number of pro-lifers is high enough in a libertarian population, there will often be someone, somewhere prepared to homestead the guardianship rights lost by the abortion-attempting mother (perhaps the father, other family members or local churches), which would then ask their protective services to prevent the third party from providing the abortion. So even on a protection agency view, it looks like you can get the effect of a ban on abortion.

V. Summary

In sum: assuming fetuses are persons, standard libertarianism should permit and perhaps require protection agencies and/or the minimal state to prohibit pregnant women from procuring third-party provided abortion services and to prevent third-parties from offering that service, save in the case of the life of the mother. But it can neither prohibit the mother from causing an abortion on her own or punish her for doing so.

I’m not entirely confident in my reasoning here, so what do you all think?

(A very interesting question is what to do in cases where reasonable people disagree about whether fetuses are persons, which is our standard predicament. But that question will have to wait for another time.)

*Assuming fetal personhood and self-ownership libertarianism, if a woman attempts to have an abortion and injures herself in the process, then others are permitted, and in many cases required, to help her improve her condition. But that is merely to stop the injury, and the medical aid must proceed in the most fetus-preserving way available.

Update: I am not a self-ownership libertarian, so this is a purely hypothetical exercise for me. I’m simply trying to explore the conceptual space of libertarian ideas.