A Pro-Life Libertarian Case for Abortion Rights

Partial birth abortion is now back in the national spotlight after the last presidential debate. Many of my most thoughtful libertarian friends are torn on the issue of abortion, particularly late term abortion, because it is a moral dilemma of a perhaps totally unique sort. The fetus is absolutely dependent on its mother for survival until at least the 24th week, and then after that for its health and development until around the 37th week of pregnancy. It’s difficult to get around that biological reality. Pregnancy is the only time in which another human being’s body is absolutely dependent on the body of another specific irreplaceable human being. And until artificial wombs are a reality, that’s where we’ll be stuck.

I’m in the morally pro-life camp and have been ever since I saw my oldest daughter on an ultrasound at 13 weeks. She had fingers and toes and by the 20 week ultrasound she was a little human being. At some point, no matter how you work it, fetuses become humans and we’re stuck with a conflict between fundamental individual rights. Walter Block famously tried to thread this needle with his theory of evictionism, which is a decent starting point except that most infants do not have great outcomes at the point of viability (around 24 weeks), so you’re not just evicting someone but substantially reducing their potential and quality of life moving forward. But at least his approach tries to wrestle with the conflicting rights of both mother and child.

Ultimately though, what interests me is not the morality of abortion, which I think libertarians can have widely different legitimate opinions on. What’s more troubling for libertarians is the practical issue of where they should stand on governmental interference in private medical decisions. The more I thought about it, the more it seemed that many libertarians’ attitudes toward government power completely flip when it comes to the abortion issue. Many argue that late term abortions should be restricted or prevented altogether because at some point the procedure becomes murder, and the government’s (perhaps only) legitimate job is preventing harm to one’s body (or property) (here’s a brief discussion).

This argument seems reasonable until we apply that justification for prohibition to almost any other method of use of government force to prevent harm to individuals in practice. We could prevent many murders through mass surveillance or tracking, but libertarians aren’t comfortable with that. We could prevent many murders by locking up for life anyone convicted of a violent crime, but libertarians aren’t comfortable with that either. We could prevent many murders or serious cases of assault by forcibly sterilizing some people, but libertarians didn’t like that when it was tried 100 years ago and they don’t like it now. In fact, the libertarian attitude toward criminal justice reform is, largely, that we need reform because even if expansion of government power could prevent some violent crimes, the costs to freedom would be too great. Why don’t pro-life libertarians make this same trade off about abortion? Why is our attitude toward risk different toward the would-be criminals out in the real world than it is toward women making intimate and difficult decisions about their own bodies?

I suspect part of the disconnect is a lack of knowledge about who uses late term abortions and for what reasons. First, late-term abortions (any abortions after 20 weeks) are very rare.  Third trimester abortions are even more rare, and most are done because the fetus is incompatible with life. These parents choose late-term abortions, not because they want to kill their children, but to save those children pain and suffering (and here). Of course, there are probably a very small number of people who do use late term abortions in a way that most of us would consider to be morally irresponsible, just as there are people out there who harm others in ways that we cannot prevent without severely restricting the liberties of everyone else. But limiting late term abortions would not prevent many of those instances, because they are already very limited to begin with. It would, however, put families in heartbreaking and dangerous situations, including being forced to actually harm their child by giving birth to it. There is simply no way to limit late term abortions without harm being the primary side effect. Moreover, women who end up having abortions after 20 weeks (distinguished from those who have abortions in the third trimester for fetal health reasons) are more likely to be poor, have low education levels, and be victims of domestic abuse, all of which make it difficult to find a provider or pay for the procedure at an earlier stage of pregnancy. More restrictions on abortion will simply make it harder for vulnerable women to find care, which in turn makes them more likely to have to choose more morally problematic forms of abortion. Libertarians are usually the first to talk about the unintended side effects of government policies and limits on abortion should be a prominent case study, yet many pro-life libertarians are silent on this issue.

But I also think part of the libertarian blind spot toward the dangers of governmental intervention in abortion comes from the lack of women in the movement, which means there are not enough people involved in the debate who have actually carried another human being in their bodies for 9 months and experienced the discomfort, inconvenience, sickness (alongside a lot of beauty and meaning) of pregnancy. Sharing your body with another human being is no mild inconvenience. And the decision to end a pregnancy in the 7th, 8th, or 9th month of pregnancy comes with dangers of its own and requires a great deal of thought and medical attention. Women and their doctors do not make these decisions lightly.

I’m morally pro-life. I do believe that late term abortions represent the destruction of a human life. Perhaps if evidence emerges that women are choosing late term abortions in large numbers for the fun of it, we might rethink the tradeoff between government intervention and individual rights, just as we might push for stricter criminal justice standards in the face of a wave of violence. But we have no evidence that that’s the case. And like almost all libertarians, I do not think the government is well meaning enough, rational enough, far-seeing enough, or consistent enough to intervene in women’s private medical decisions in a way that does not do much more harm than good. I’d like my libertarian friends who are in favor of restricting access to abortion rights, even just restricting late-term abortion rights, to step back and ask themselves whether the government they believe can protect fetal life so effectively and fairly is the same government that they believe is woefully and perhaps irredeemably corrupt, inefficient, ineffective, and harmful in most other areas of human affairs. Or is it instead that they have inconsistent attitudes toward government intervention in this case because they have not adequately thought through what’s at stake? Either way, you can’t believe government is a dangerous Leviathan in 99.9% of cases and a unicorn in one particular case. Limiting government and encouraging freedom means accepting moral risk in an imperfect moral world.