From Free Life, Issue 16, April 1992
ISSN: 0260 5112
Abortion: A Problem of Libertarian Ethics?
by Sean Gabb
In any attack on what they persist in calling “permissiveness” – thereby asserting a right not to permit – the authoritarian Tories can be expected to hold up five modern laws for execration. There are the Obscene Publications Act 1959 and the Theatres Act 1968, the effects of which respectively were to abolish censorship of literature and the stage. There is the Suicide Act 1960, which removed suicide from the list of felonies. There is the Sexual Offences Act 1967, which decriminalised certain homosexual acts between men. These four Acts are rightly described as enlarging the freedom of individuals to control their own lives. They may not have gone so far as they might. But, in the coming battle between the libertarian and the authoritarian wings of the Conservative Party, the opening positions of each side in these fields are clearly marked.
Where the fifth of these Acts is concerned, however, the libertarian position seems to me far less clear. Under the Abortion Act 1967, procuring an abortion ceased to be an offence where the pregnancy was terminated by a registered medical practitioner, two other registered medical practitioners certifying that the pregnancy’s continuance would risk the mother’s life, or injury to her physical or mental health or to that of her other existing children, or would greatly risk the birth of a child with a serious physical or mental defect. Despite is apparently restrictive wording, the Act was intended to confer, and has confered, the right to an abortion almost on demand. Of the several million foetuses aborted in England during the past quarter century, few have been abrted on any grounds other than the mother’s social convenience.
Now, I ask: Is this law simply an extension of the right to control one’s own body? or is it something rather different?
For many libertarians, there is no room for doubt. They reduce the whole question to one of landlord and tenant: if a woman desires vacant possession of her womb, it is not for the foetus, or anyone purporting to represent it, to seek to stay her from beginning eviction proceedings. This right, of eviction at will, continues unabated to the very moment of birth, at which momwent, the foetus becomes an independent human being, endowed with certain inalienable rights, to life, liberty and the pursuit of happiness.
But I disagree strongly, both with this general approach and with its present application. It is false to believe that every human relationship can be reduced proprietorship or to a set of contractual obligations. I grant that the approach is consistent. It has no time for the view, taken by most feminists even, that a moment can be fixed in the course of a pregnancy before which a foetus is nothing but a mute growth to be cherished or excised at will. Even so, I disagree with it. I dislike abortion. I say more: abortion is murder. Certainly, where the mother’s life would be seriously endangered by having a pregnancy continue – or even to some extent where where her health would be damaged – it ought to be permitted. But it should not be regarded as a choice freely available, as a supplement to contraception.
In this respect, much as I dissent from its theology, the Roman Church has the better argument. Other things being equal, a foetus once conceived turns gradually from a microscopic blob to a human being. The process continues from one moment to the next, all change being cumulative. There are occasions where a line must be drawn, and no obvious place can be found to draw it. Look, for example, at the age of majority in young people. I felt and appeared no different one minute into my nineteenth year than half way through the minute before. yet my legal status had changed beyond recognition. But this is no precedent. In a pregnancy, there is an obvious place to draw the line – and that is at the moment of conception.
I feel sorry for those women who find themselves unwillingly pregnant. I beleive that the adoption laws should be liberalised, to allow unwanted children to be placed with any couple or individual who may wish to give them a home. I believe that the employment and child-minding markets and the tax system should be liberalised, so that unmarried mothers need not be condemned to waste their youth on State welfare. I believe in removing all restrictions of the availability of contraceptives, together with the information needed to use them properly. Nevertheless, once a she is pregnant, a woman ceases to be an entirely sovereign individual. She becomes instead the trustee of another, as well as the owner of herself. For the duration, her right to use and abuse her body as she sees fit is compromised by her duty to the child in her womb.
Yet, all this being said, what do I propose to do about it? It is one of the more tiresome mistakes of the authoritarians, that immoral acts ought to be – or even can be – prevented by law. On this point, nearly everything that we are in the habit of saying about drugs and guns applies equally to abortion.
Though a pregnancy can be terminated in its later stages only by surgery, termination before then is an increasingly simple business. Vaginal douches, pessaries, emetics and general irritants, vigorous exercise, hot and cold baths – these and other methods have been in use for thousands of years, and have been found reasonably effective where used properly. Nowadays, there are drugs that cause safe and certain abortion within the earliest stages of a pregnancy. For a month or so beyond that, there is a clever modern device that can be used by anyone, and is again perfectly safe.
At the moment, it is thought permissible to restrict access to these means. Anyone who writes about them with too much detail, or in too popular a style, can be prosecuted for aiding and abetting a criminal offence, or for obscenity, or for conspiracy to corrupt public morals. Their sale can be made illegal, and means found of enforcing the prohibitions. As with drugs and guns, enforcement will not be perfect: but it can be attempted.
In a libertarian society, though, I do not see the grounds on which access to the means of procuring an abortion can be restricted. It will, after all, be legal to publish the instruction for making high explosive, and to sell all the required materials and equipment. The law will only interfere if someone makes use of this freedom to infringe the proprietory or contractual rights of another. It must be the same with abortifacients. The problem is, that abuses of these latter will very seldom be known. If someone throws a bomb at me, or has a delivery of TNT to a garage rented from me, contrary to the terms of his lease, the chances are that he will find himself in court. But a woman who flushes an unwanted foetus down the lavatory will do so in almost perfect safety. We can make whatever laws we please against her doing this. But I fail to see how they can possibly be enforced, except against the most stupid and unlucky – which is, against those most likely to receive the public sympathy in any subsequent trial.
What, then, is the answer? I am a libertarian who believes, rightly or wrongly, that abortion is murder. Yet I clearly understand that in a libertarian society, most abortions will go unpunished.
I will say no more on this matter. Perhaps my readers may care to write to me, giving their views.
© 1992 – 2017, seangabb.
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