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Abortion
Abortion is a controversial subject. The key question in the abortion debate for a libertarian is the following: When does a rights-bearing human emerge? The answer to this question is crucial because a non-rights-bearing human, by definition, has no rights and, therefore, can be justifiably killed. However, a rights-bearing human, by definition, has rights and, therefore, cannot be justifiably killed (except in self-defense); in fact, an unjustified killer of a rights-bearing human is, as logically explained by the interrogator Ivanov in Arthur Koestler’s Darkness at Noon,
“a slaughterer”.
What are the possible moments in time when a rights-bearing human emerges (i.e. when personhood begins)? A plethora of points in time have been adopted by various societies. The most common selections have been the following:
1. Pre-fertilization views assert personhood exists in human eggs, human sperm, or human embryonic and induced pluripotent stem cells.
2. Fertilization views assert that personhood emerges at ejaculation, fertilization (sperm entering egg), or fusion of genetic material into a new set of chromosomes.
3. An embryological view asserts that personhood emerges after gastrulation (approximately 12 days post-fertilization when monozygotic twinning is no longer possible).
4. Neurologic views assert that personhood emerges at 8 weeks post-fertilization when organogenesis has been completed and a rudimentary nervous system exists, at 20 weeks post-fertilization when thalamus (a brain structure crucial for nervous system integration) development has been completed, at 24-25 weeks post-fertilization when a functionally mature brain (evidenced via bilaterally synchronous brain EEG activity as reported per K.J.S. Anand and P.R. Hickey in their frequently-cited November 1987 New England Journal of Medicine paper entitled “Pain and its Effects in the Human Neonate and Fetus”) develops, or when the human child first employs reason (at some time in childhood).
5. An ecological view asserts that personhood emerges when a fetus can exist separately (fetal viability) from the uterus (approximately 22 weeks post-fertilization).
I claim that the optimal choice for libertarians (based on the current state of medical science) is the third version of the neurologic view (a rights-bearing human emerges at 24-25 weeks post-fertilization when a functionally mature brain develops, otherwise referred to hereafter as “brain birth”). Why? I assert the following three reasons:
1. A coherence/symmetry argument: Because death of a rights-bearing human is scientifically defined at brain death, birth of a rights-bearing human should be scientifically defined at “brain birth”.
2. A praxeological argument: Because the fundamental difference between a rights-bearing being and a non-rights bearing being is the capacity to reason (required for human action), the emergence of a rights-bearing human should be defined as no earlier than the moment in time when a human develops the minimum mental equipment necessary to exhibit reason, which occurs at “brain birth”.
3. An ethical argument: Because humans do not specifically employ reason at “brain birth” or continuously throughout life (which if required for rights-bearing humans would justify the killing of all humans at various times throughout life), the emergence of a rights-bearing human should be defined as no later than the moment in time when a human develops the minimum mental equipment necessary to exhibit reason, which occurs at “brain birth”.
Ultimately, what are the implications for abortion if libertarians adopt the “brain birth” version of the neurologic view? First, abortion would be justified (not an act of aggression and, therefore, not a crime) from fertilization until the end of the 23rd week of fetal life. Second, abortion would be unjustified (an act of aggression and, therefore, a crime) from the beginning of the 24th week of fetal life through birth. Third, if an unsuspecting female unwilling to be a child’s guardian discovered she was pregnant OR significant medical complications occurred 24-weeks post-fertilization or later, she could justifiably “evict” (a modified version of Professor Walter Block’s evictionism theory) the fetus via surgical delivery by relevant medical professionals, at which time the fetus would be treated in a neonatal ICU and guardianship would be transferred, as needed, to willing guardian(s). Finally, in the rare, horrific scenario of a life-threatening pregnancy complication 24 weeks post-fertilization or later, if the fetus cannot be surgically “evicted” without death of the mother, the mother could justifiably proceed with an abortion as a matter of self-defense.
Libertarian Bioethics
bioethics (and occasional miscellaneous) articles from an anarcholibertarian viewpoint in 700 words … or more or less
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Seth MacLeod May 7, 2014 , 3:43 am Vote0
What kind of rights are you talking about? Moral or legal? If you want to bring praxeology into the matter, then you cannot talk about moral rights because praxeology, which is value free, does not imply one thing or the other about morality. Praxeology provides a framework for understanding how legal rights can exist.
In that sense, then we can look to both Rothbard and Hoppe, where the foundation for legal rights comes from the act of argumentation. Strictly speaking, only persons who can orchestrate a case at law can be said to have legal rights; anyone else (or animals) must be protected by someone who participates in the legal system.
This is especially obvious with persons who are outlawed, where they are literally outside the protection of the law. It is also obvious with the inmates at Guantanamo Bay, where they are prevented by the state from participating in the legal system. Young children, babies, fetuses, some handicapped, and animals do not have legal rights in a strict sense, as they must always be protected by someone else.
Don Stacy May 7, 2014 , 10:08 pm Vote0
While personhood rights are moral and legal rights, I am discussing the legal rights associated with personhood in this article.
I labeled the second argument for my 24-weeks post-fertilization emergence of personhood theory a praxeological argument because praxeology is the science of human action and action requires reason and reason requires a functionally mature brain (at least in humans), which develops at approximately 24-weeks post-fertilization in humans. That argument can be labeled a variety of other terms also. The label does not matter to me; the reasoning matters to me.
The idea that legal rights derive from argumentation means, logically, that humans who are sleeping, severely intoxicated, in a coma, under anesthesia, physically immature (all newborns and infants and most children), etc. – you list several examples yourself – are not persons and therefore have no legal rights. Beings without legal rights can be slaughtered/raped/tortured at will. Fundamentally, beings either have legal rights or do not have legal rights; there is no intermediate category such as “legal rights in a non-strict sense that are protected by someone else with legal rights”.
Seth MacLeod May 8, 2014 , 3:12 am Vote0
“The idea that legal rights derive from argumentation means, logically, that humans who are sleeping, severely intoxicated, in a coma, under anesthesia, physically immature (all newborns and infants and most children), etc. – you list several examples yourself – are not persons and therefore have no legal rights.”
This is only partially correct. I specifically said: Strictly speaking, only persons who can orchestrate a case at law can be said to have legal rights; anyone else (or animals) must be protected by someone who participates in the legal system.”
People do not need to engage in argumentation every second of the day in order to have rights. When disputes arise, parties to the dispute can resolve it through violence, one or both can drop the matter, or they can choose to resolve it through argumentation. A person who sleeps can wake up and argue his own case, but I actually said “orchestrate” for a very specific reason. That reason is that persons can *hire* someone to argue their case for them. We call those people lawyers. If you really want to be pedantic, a sleeping person can still orchestrate his case by hiring a lawyer *before* he falls asleep. He can then sleep while the court is in session and his lawyer argues on his behalf. Ditto for the severely intoxicated.
When it comes to people who cannot orchestrate their own case, then *someone* else must do it on their behalf. Today, it is the state that does this (even though it is clear to us libertarians that the state is not really on our side). But someone must do this, or that person will go unprotected.
“Beings without legal rights can be slaughtered/raped/tortured at will.”
That is what it means to be an outlaw, which is why I used outlawry as an example. Persons who are outlaws are no longer within the protection of the law. They can be killed, for example, with impunity.
“Fundamentally, beings either have legal rights or do not have legal rights; there is no intermediate category such as “legal rights in a non-strict sense that are protected by someone else with legal rights”.”
You are misunderstanding. That is not an intermediate category. It falls under the category of “not having legal rights”. The reason I said “in a strict sense” is because saying that an animal has rights is figurative. What they have are protections. A person who can participate in the legal system must protect a being that cannot participate in the legal system.
Don Stacy May 8, 2014 , 4:08 pm Vote0
1. “People do not need to engage in argumentation every second of the day in order to have rights.”
This is an assertion that must be justified if one is using an argumentation theory of rights. I intuitively agree with this assertion, but professional bioethicists do not view this (“persistent” personhood) as an axiom. The personhood theory I advocate addresses the problem of “intermittent” personhood by claiming that human personhood emerges at approximately 24 weeks post-fertilization when a fetus develops the minimum mental equipment necessary for the capacity of reason, REGARDLESS of whether reason is ever employed.
2. “If you really want to be pedantic, a sleeping person can still orchestrate his case by hiring a lawyer *before* he falls asleep.”
I prefer the word precise over the word pedantic.
3. “When it comes to people who cannot orchestrate their own case, then *someone* else must do it on their behalf. Today, it is the state that does this (even though it is clear to us libertarians that the state is not really on our side). But someone must do this, or that person will go unprotected.”
Beings without legal rights should not be protected by a legal system; this is why legal rights are so important.