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First published in The Libertarian Forum, July-August 1978, 2-3.  The reply of its editor, Murray Rothbard, follows.

Abortion and the 

Rights of the Child

 

James A. Sadowsky, S.J.

 

Both Murray Rothbard and Walter Block have written articles in this review to the effect that abortion never violates the rights of the unborn child.  The womb, being the sole property of the mother, the child becomes a trespasser by the very fact that the mother no longer desires his continued presence.  Like any trespasser, they continue, he may be dislodged at the pleasure of the owner.  The subsequent death is not intentional (desired as an end or a means) but merely an unintentional byproduct of his expulsion.  That this is so is highlighted by Walter when he says that where possible a life-preserving means of expulsion must be used: if this is not done, we are confronted not with just knowingly causing death but with murder.  I trust that this is an accurate summary of their position.

My first comment is that the majority of abortions do not fit the above description.  What is wanted in most cases is precisely the death of the child.  Most of those seeking abortions would be horrified at the thought that the child might survive his expulsion. Just ask your friends if all they are after is simply a premature birth.  The recent trial of Dr. Waddil is a good indication of the pro-abortion mentality.  He is on trial for the intentional killing of a child who had survived the termination of pregnancy.  In a remark attributed to him he expresses his puzzlement about the fact that the same act is acceptable when the foetus is in the womb and is reprobated as infanticide as soon as it is outside.  I must say that I share this puzzlement.  All of this illustrates the fact that in the eyes of most people abortion is intentional killing although many of those who procure abortions do not realize that what they intend to kill are in fact human beings.  Surely the above norms would rule out abortions for eugenic reasons as well as those obtained in order to “destroy the evidence.”

Nevertheless, adherence to Murray’s norms would allow for some abortions.  A woman might simply wish not to be bothered with going through a pregnancy.  On the other hand she may not care whether the child lives or dies.  In this case the death would not be intentional: the mother is interested only in ejecting the “trespasser.”

Let us grant for the moment that the child is indeed a trespasser.  Does this of itself justify the draconian response that Murray and Walter permit?  Does the mere fact that a man is a stowaway justify our throwing him out of the aircraft?  Ought we not in the absence of overriding reasons to wait until the aircraft lands?  Both traditional natural law theory and the common law have it that our response to aggression should be proportionate to our need to resist and the nature of the attack.  Suppose that the inflicting of a lethal wound is the only way to recover a stolen nickel.  Is that enough to justify such act?  Of course, one might say: “So much the worse for traditional natural law theory and the common law.”  But I should think that the burden of proof rests on him that would depart so far from what seems a commonsensical intuition.

At least the stowaway leaves the aircraft in the condition in which he arrived.  If the abortion is successful, it is not a living, healthy child that leaves the womb.  It is a corpse. Is this any way to treat even an unwanted house guest?  While the death of the child may not be intended, this can hardly be said of the lethal and brutal attack on his body.  That attack is the means whereby the expulsion takes place; the foetus does not die as the result of the mother’s failure to extend the means of life––it dies of the attack itself.  This assault lies altogether too much in the background of the two articles I am criticizing; it is treated as if it were something that took place en passant.  Clearly this is not the case.  If with Murray and Walter you grant that what gets aborted is a child, a living human being, you must then ask yourself what conduct on the part of a human outside the woman would justify the response that occurs when an abortion takes place.  It seems to me the one’s trespassing must cause us the loss of something of enormous value if we are going to respond to it with a violence that is similar to that inflicted upon the foetus.  Does mere annoyance, the loss of comfort justify such an attack on a trespasser?  I think not.  So even if we accept the trespasser theory, the only permissible abortion would be that which was required to preserve the mother’s health.  Perhaps, therefore, Sharon Presley is right in her contention that the position we have been discussing is fundamentally an anti-abortion one.

But is the infant a trespasser the moment his presence in the womb is no longer desired?  Does he have no right to be there?  Murray and Walter simply assume that the infant has no right to be in the womb.  Yet it is by no means evident that their answer is the correct one.  To say that x is trespassing is to say that he is somewhere where he ought not to be.  But where should a foetus be if not in its mother’s womb?  This is its natural habitat.  Surely people have a right to the means of life that nature gives them?  If the home in which the infant grew were outside the mother’s body, we should all see that to expel him from that home would be to deprive him of the nature-given means of life.  Why should the fact that his nature-given home lies within a woman’s body change the situation?  What is a woman’s womb for except to house the infant’s body?  It is nature that gives the child this home, this means of life.  When we cast him out, we are depriving him of that which nature gave him.  To do this is to violate his rights.  

 

“. . . no human has the right to

 reside unwanted within the body

of another.”

Murray N. Rothbard

In the first place, to correct a misunderstanding, while Walter block and I agree on many things, we are not a monolith.  In contrast to Walter, who agrees [with Father Sadowsky] that the foetus is human, I simply made the assumption for the sake of argument, in order to grant the anti-abortionists their best case.  In fact, if I had to “vote” on the issue, I would probably say that the foetus only acquires the status of human upon the act of birth.  If so, the of course, the foetus has no rights, and the thorny abortion question would be eliminated forever.  It seems to me that the problem with the Block-Sadowsky thesis of asserting the foetus to be human is that that act of birth, which I had always naively assumed to be an event of considerable important in everyone’s life, now takes on hardly more statue than the onset of adolescence or of one’s “mid-life crisis.”  Does birth really confer no rights?

As for the womb being the foetus’s natural habitat, no doubt, but so is the body of the host the natural habitat of the parasite.  Their two natures conflict and so it would be impossible, even if the two beings could understand language and abstract thought, for either to agree to the natural rights of the other.  If vampires existed, theirs and our natures would be in irreconcilable conflict, and we could not grant vampires any natural rights status.  Similarly, when unwanted, the foetus simply becomes a parasite whose needs and interests are irreconcilable conflict with the mother.  And even if the foetus is considered to be human, no human has the right to reside unwanted within the body of another.  If anyone has any rights at all, as Jim Sadowsky has acknowledge elsewhere, then each person must have the absolute right to own one’s own body.  If the foetus is unwanted, then it is violating that right, and, nature or no, the mother has the right to eject it posthaste.  Even if a woman’s womb is “for” the housing of an infant, human beings have, and ought to enjoy, absolute freedom of individual choice. We all have the capacity to do and be many things that we may not choose to undertake.  I may have the capacity to jog every morning but I have the right to choose not to do so.  A woman has the absolute right to choose not to bring her womb into use.

Jim Sadowsky is worried about ejecting a stowaway on an airplane.  Yes, I suppose that would be “overkill,” to coin a pun.  But the point here is that, just as an assault on someone’s body is a more heinous crime than the theft of his property, so the trespassing on or within a person’s body is a far more heinous trespass that merely strolling on his land or stowing away on an aircraft.  For the crime of trespassing within a person’s body, any means necessary to evict the trespasser should be legitimate.

Jim Sadowsky asks what conduct of human outside the woman would justify the response similar to the brutality of abortion.  Judith Jarvis Thomson trenchantly offers an analogous case.  Suppose that you are kidnapped and find yourself hooked up via a kidney machine to a pianist who needs continuous infusion from your kidneys in order to live (his “nature”).  Furthermore, to complete the analogy, he only will need your kidneys for nine months, after which he will be unhooked, and there is no danger to your own kidneys or health in the meantime. I say that you would have the right, not merely to unplug yourself from his kidneys, but to be damned “brutal” about it if necessary to get your body out of its enslavement, even if it kills the pianist in the process.  Would Father Sadowsky say differently?1

Jim Sadowsky stresses the point that most mothers who commit abortion in fact desire not only the ejection, but also the death of the foetus (or, as he persists in referring to it, of the “child”).  Here I don’t think the intention of the parent makes any difference. If the objective act itself—the ejection of the foetusis licit and not an act of aggression, then the subjective intentions of the parent make no difference.

Jim writes that “if the home in which the infant grew were outside the mother’s body, we should all see that to expel him from that home would be to deprive him of the nature-given means of life.”  I’m not sure I know what “expel” would mean in this context.  But in the relevant possible future case of a “test-tube” foetus, grown of course in a man-made means of life, it surely would not be murder to pull the plug, to cease investing resources in keeping the foetus alive.

1 See Doris Gordon, “Abortion and the Thomson Violinist: Unplugging a Bad Analogy.”  It is worth noting that like Father Sadowsky, Gordon is a libertarian but, unlike him, she is an atheist.  See also Eric Richardson, “Refuting Judith Jarvis Thomson.”

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