Abortion and the Libertarian Conscience

This has been one of the most popular recent articles shared amongst Libertarian Party members on this subject in recent years. It was originally written by me for Independent Political Report in 2015.

SUMMARY: Few things divide Libertarians more than the question of abortion. Each perspective can argue presumably sound libertarian reasons for their positions. For many Libertarians, it can come down to a nearly irresolvable conflict of competing rights i.e., the right to life and the right to liberty/bodily autonomy. The Libertarian Party Platform (2014) appears to strive to allow both views (and the myriad spectrum between) full voice and participation, but in fact, it requires that pro-life Libertarians (and partially pro-choice Libertarians) give up their good faith convictions already granted by the Platform in order to accept it. In fact, only a minority of present Libertarians can give full-throated and unwavering consent without misgivings or discomfort.

Argument in Favour of Deleting the Present Abortion Plank of the Libertarian Party Platform

The current Platform of the Libertarian Party (1.5–2014) articulates the Party's position on abortion as follows:^[1]

Recognizing that abortion is a sensitive issue and that people can hold good-faith views on all sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration.

At first, this seems to appropriately balance this matter; however, what the Platform gives on one hand, it takes away with the other. It does not seem to recognize why many Libertarians are opposed to some or all abortions: they believe that abortion, either from conception or at some point during fetal development, unjustly takes a human life and is a form of homicide. With this is mind, the conflict becomes clear. As Libertarians, we generally believe that the State (or in an anarchist view, the community law—however enforced/enacted^[2]) does have a compelling reason to prevent and punish homicide. It is one of the few duties of the State/Law about which Libertarians can agree. However, while the current Platform recognizes that many members will oppose abortion, it asks them to abandon the inherently Libertarian belief that homicide is a proper province of the State/Law. This is simply incoherent and isn't "leaving the question to each person for their conscientious consideration." Not really. It is basically saying, "Don't like homicide? Don't kill anyone"; rhetoric that works reasonably well for drug legalization and chosen personal relationships but fails utterly on the subject of homicide.

The Logical Conclusion of Present Platform (Unfettered Abortion Through Moment of Birth) Does Not Represent the Majority View of Libertarians

As Libertarians, we like to argue that if a law turns a majority of citizens into criminals, perhaps the law needs to be changed to more accurately reflect how people actually live their lives.^[3] A loose analogy can be drawn here…when the Platform does not reflect, and in practicality excludes, the consistent full expression of the views of a significant number of Libertarians who are being consistent with Libertarian identity, the Platform should be changed.

I am not arguing that the majority of Libertarians, or even of the general populace, support the legal prohibition of abortion from conception onward^[4] but rather the views are a continuum from that point forward.^[5] For instance, there is also the Libertarian evictionist position as expressed by Walter Block (right to "evict" the fetus, but no right to actively demand its death). However, it is easily true that a majority does exist in answering negatively to the question of whether at-will abortion^[6] should be completely allowed up until the moment of birth.^[7] In fact, Libertarian Party co-founder David Nolan believed that there was a developmental point at which the fetus obtained a moral right to life and that the Party should drop its unrestricted pro-choice position in favour of individual consciences.^[8] And on other points along the spectrum, there is of course the strict pro-life Constitutionalist position of Ron Paul (the States could decide that life should be protected from conception)^[9] and the mid-road position of Gary Johnson (life should be protected from viability).^[10][11] The National Platform has not been without controversy at the State parties, such as the 1994 Pennsylvania Resolution to leave the issue entirely up to the individual Libertarian, including whether or not there is a compelling interest to protect life.^[12]

The present Platform presents an extremely volatile (and to most minds, disturbing) answer to a completely logical question, to wit:

What answer does the Libertarian Party Platform give to the question: "Can I decide to kill my baby one minute before natural full-term childbirth would begin?"

Presently, the answer would be "It's up to you." And that, to the vast majority of Americans of all persuasions (including ardent defenders of earlier abortion rights), is monstrous. I do recognize that there are Libertarians who believe that Libertarian principles would lead to this conclusion. I ardently disagree in the same way I do with Rothbard's conclusions on the duties of parents toward their children.

In rebuttal to that dilemma, some Libertarians have retorted statements to the effect of, "We don't need laws telling parents not to waterboard their children either. This is insulting to women!" which of course confirms the majority view that this "decision" would be horrifying, as waterboarding is. Yet, this is precisely what the Association of Libertarian Feminists (ALF) argues. Here is an exact statement (emphasis added):

If a woman has a right to abort a fetus at any point prior to birth, this also implies the right to terminate the life of the fetus as well. Abortion is not a discrete act; it is an ongoing process that begins within the. woman's body and continues outside it. If she has a right to the procedure of abortion, she has a right to the entire procedure—otherwise the so-called right is meaningless. Since the purpose of abortion is not just to terminate the pregnancy but to avoid bearing the child, what is necessary is not just the removal of the fetus (otherwise she could just bring it to term and give it up for adoption), but its death.^[13]

The ALF has an updated and revised version of the same article that is even more blunt (emphasis added):

The libertarian principle of private property logically entails a woman's right to control her pregnancy totally until the point of birth dictated by natural forcesÑthat is, until a normal or premature delivery or caesarian section. This includes the right to terminate the life of the fetus during the abortion procedure at any time prior to delivery.^[14]

The "official" Libertarian response at this point would be, "Yep. That's right." That is not the principled point of view of most Libertarians and certainly not of most Americans (principled or otherwise). Typically a Libertarian defender of the right to abort at any point would not include in that position a right to actively kill (if perchance the fetus survived the procedure and was outside the woman's body).

The Platform Should Represent the Actual State of Libertarian Thought and Conscience

I am pro-life. I say that unreservedly as a committed Libertarian. I, and many others like me, do feel senselessly excluded by a statement that asks us to abandon our commitment to the most fundamental of rights which we hold as fully coherent with the Non-Aggression Principle. However, I understand that other Libertarians feel the same very strong sense about their commitment to their understandings of the right to liberty and autonomy, and while I do not agree, I understand that they are faithfully trying to follow Libertarian principles. My position is not an attempt to demonize them. This conflict is not going to be resolved and will always be a matter of debate amongst Libertarians—whether or not proponents of either side wish it differently. The Platform should not needlessly divide and take sides on an issue that it already acknowledges is simply not that clear-cut as between competing Libertarian views and presently gives the green light to a right to kill a full-term perfectly functional human being merely because of where it is located or due to its unexercised abilities^[15] over the extreme moral objections of a significant portion of its members. I respectfully suggest that the Platform reflect the reality of Libertarian conscience on the majority of both sides without needlessly alienating potential future Libertarians by deleting the Plank and leaving the issue in reality for the conscientious consideration of each person and candidate.

For the persons on the opposite ends of this issue, this will not satisfy them; but it gives everyone the same liberty to pursue the logical ends of their positions; and it does reflect the median norm of ethical Libertarian thought. An objection might be lodged that this proposed deletion is not tailored to deal with the area in which there is widespread support for limitation, i.e., late term abortions. That is true, but where precisely to draw the line is something to be left up to the individual conscience or it can become an arbitrary pronouncement and puts the Party in the position that was my intention to avoid, to become the arbiter of a highly contentious and divisive issue amongst fellow Libertarians as it would have to defend any line it may draw—taking one side over others. It is further worth noting that in the Libertarian Party's desire to engage younger Americans that at least partially pro-life sentiment is on the rise, and many of these young people choose to affiliate and vote based on that belief. These are not people motivated by an opposition to the liberty of women as these are likely the most egalitarian generation as well.

CONCLUSION: I am aware that deletion of this Plank has been attempted before and failed during the token votes to remove any Plank of a current Platform. I also am aware that the threshold to change the wording, rather than outright removal, is much higher. I have a definite position on abortion; I do not pretend otherwise. But I am not attempting to argue my pro-life position, the present Platform already acknowledges that I can make it. I am attempting to bring more inclusion and tolerance of the implications of accepted views to the present Platform in the Libertarian spirit. I became a Member of the Party with the present Plank, and I will live with it as I firmly believe in Libertarian principles, but being placed on the outside of the divide can and does make good faith pro-life (and other views along the spectrum) Libertarians perceive that they are not entirely in the fold and needlessly alienates potential future actual Libertarians.^[16] And that is unfortunate.

I am confident my position is in good company as Libertarian Party co-founder David Nolan also stated:

I have long maintained that the LP should drop the present pro-choice plank from the national platform, and let individual candidates take their own stands. Abortion is not one of the five "litmus test" issues in my recent editorial on the basics of libertarianism.^[17]

Those words are still relevant and correct.

Closing Note: One concern that I often hear when I make this suggestion is that the abortion plank is a strategic bulwark to prevent the "Republicanization" of the Party. I agree with that concern and share it. However, this concern is not enough for me to overcome the arguments made above or to abandon my absolutely Libertarian belief that the defense of life is fundamental. Without life, nothing else matters. I want to be perfectly clear that my arguments regarding needless barriers are not intended to make a Libertarian agenda more palatable to semi-libertarians or non-libertarians, but to honour the good faith convictions of actual libertarians, and those who would affirm our principles but have not yet joined. I am a self-identified Libertarian radical. I have no desire to move our Party to the right (or to the left) but solidly northward on the Nolan Chart.

[1] The first full Libertarian Party Platform (1972) contained a statement supporting an absolute right to abortion within the first 100 days. This limit was dropped after the passage of Roe v. Wade, http://www.l4l.org/library/nolan.html#tracing, accessed April 14, 2015. The present wording seems substantially unchanged since 1996 (there have been minor variations in wording, and it was part of a much larger sections on reproductive rights), http://www.lpedia.org/1996_Libertarian_Party_Platform, accessed August 21, 2015. The wording prior to this was stronger in its absolute pro-choice advocacy.

[2] I hold to a voluntaryist/anarchist view. I prefer my State non-existent.

[3] This is an argument made in a Libertarian Party position paper on Immigration, https://www.lp.org/issues/immigration, accessed April 13, 2015.

[4] Indeed, some people who believe in a moral right to life at conception reason that it would be impossible and tyrannical to legislate. For instance, if a woman is known to be pregnant and suffers an early miscarriage, is this an automatic homicide investigation? Others support legislation but would solve it in a different manner by focusing on the providers. I confess I have no clear-cut answers, but I do not think that it is logically required to have all solutions in order to take a principled position. I also do not have every answer to how society would function in the absence of a State, but I still hold the position that the coercive and monopolistic State is unjustified.

[5] John Walker argues, "As far as LP members are concerned, I think many of you already know that things are a lot dicier than the Platform and the press releases would indicate. When libertarians and LP members have been polled, the odds have been pretty stable: In roughly ballpark terms, a third are pro-life: they say we're persons with rights from fertilization onward, and abortion is aggression; it can be outlawed. Yes, there are points of difference and emphasis, but the basic agreement is there.

Another third are the hardcore of abortion choice supporters: Regardless of anything else, they insist that there should be no restrictions on abortion at any time up until birth, maybe even until the umbilical cord is cut. Here, too, there are points of difference (such as infanticide), but the basic agreement is there.

And finally, there's the middle — where everything is differences and there's hardly any basic agreement at all.

I do not mean that things are a tidy 33-1/3 percent each, but the odds hover in that neighborhood. Pro-lifers are sometimes down to 20 percent or so; the opposite side likewise. The middle is never less than a third." http://www.l4l.org/library/lpsilen.html, accessed April 16, 2015.

Though this article is from 2000, I see no reason to think this has changed. If anything the tide of national opinion is turning more towards at least a partially pro-life perspective rather than against it. The recent Planned Parenthood videos have heightened this trend. Though admittedly anecdotal, my personal experiences of dialog with Libertarians and libertarians have borne this out, and the ideas expressed in this argument have been received favorably.

[6] I use "at-will" to mean for any reason other than the mortal danger of the mother or fatal abnormality in the fetus.

[7] Marist Poll of "Abortion in America," January 2015, http://www.kofc.org/un/en/resources/communications/Abortion_in_America_January2015_For_Release_150121.pdf, accessed April 15, 2015, see specifically page 8 in which only 9% of persons believe that abortion should be available under any circumstance up to the moment of birth. This study does not break down by political affiliation, but does in portions break the data down by people who typically identify as "pro-life" and "pro-choice."

[8] See "An Exchange Between David Nolan and Doris Gordon of Libertarians for Life", http://www.l4l.org/library/nolan.html, accessed April 15, 2015.

[9] http://www.ontheissues.org/TX/Ron_Paul_Abortion.htm, accessed April 16, 2015.

[10] http://www.ontheissues.org/2012/Gary_Johnson_Abortion.htmaccessed April 16, 2015.

[11] I am also aware of the concern that the Libertarian Party zealously defend its unique Libertarian identity and avoid simply becoming "GOP-Lite" in order to woo voters from the Right. I share that concern. I do not argue that this is merely an issue of an obstacle to entry, but that it is primarily an obstacle to those who are already committed Libertarians. However, it would be foolish to dismiss those who may come from the conservative spectrum and for whom this is the only stumbling block to embracing full libertarianism. Actual Republicans (i.e., conservatives who are not really libertarian except a few points of agreement) will have myriad other disagreements with our positions. But for those looking for a new home, these are libertarians that we should strive to welcome as Libertarians.

[12] The Pennsylvania Resolution states: "BE IT RESOLVED that the Libertarian party of Pennsylvania takes no position on the abortion issue. The party hereby affirms that while it does not take a position on the issue, it supports the right and freedom of all individuals and candidates to hold their own views on the issue, provided that they do not represent their own viewpoints as being the party's position." http://www.l4l.org/library/ablppl94.html, accessed April 15, 2015. The Libertarian Party of Colorado (of which I am a part) does not have an abortion plank in its State Platform. Recently, a Colorado citizen was assaulted when she answered an ad on Craigslist and her third-trimester fetus was cut out of her body and died. Present laws offer this mother no justice for her murdered child, http://www.cnn.com/2015/03/26/us/colorado-pregnant-woman-attack/, accessed April 16, 2015.

[13] The Association of Libertarian Feminists, "The Right to Abortion: A Libertarian Defense," http://www.alf.org/abortion.php, accessed April 13, 2015. Libertarians for Life has provided a rebuttal to those arguments, "Abortion and Rights: Applying Libertarian Principles Correctly," http://www.l4l.org/library/abor-rts.html, accessed April 16, 2015.

[14] https://www.facebook.com/notes/sharon-presley/a-libertarian-feminist-case-for-abortion-rights/10150535339698498, accessed April 15, 2014. By this view, Kermit Gosnell did nothing inherently wrong.

[15] The argument from location is clear enough, but the argument from abilities is not. The ALF argues that "[T]the fetus is not self-conscious, cannot function cognitively, and is not capable of purposeful action; it is therefore not a person in any commonly accepted philosophical, psychological, or legal sense," (the ALF is wrong when it comes to the legal sense as the unborn can inherit. I posit they are wrong on all counts, but the inheritance issue is one commonly accessible point of objective fact, and it is not my intention to argue the pro-life case here) but later argues that the newborn is a person because it does have those particular abilities citing a 1974 paper as support. Yet recent arguments have been posited by bio-ethicists that "É neural development continues after birth and that the newborn doesn't yet meet their definition of a Ôperson'ÑÔan individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her.'" Accordingly, they reason, "The moral status of an infant is equivalent to that of a fetus, that is, neither can be considered a Ôperson' in a morally relevant sense." http://www.slate.com/articles/health_and_science/human_nature/2012/03/after_birth_abortion_the_pro_choice_case_for_infanticide_.html, accessed April 15, 2015. The argument that certain fully gestated humans are not "persons" with rights is not a position that the Libertarian Party should wish to promote as its official position. Do we really want to argue as an official Party position that late-term abortion survivors who live with missing limbs and disabilities did not have any rights to not have their bodies harmed?

I do note that some such as Rothbard would argue that while "eviction" is proper, since a fetus, or even dependent child, cannot have "positive" rights, one cannot mandate even basic care so the evicted human can be left to die (see The Ethics of Liberty). I reject this premise as fundamentally flawed—these are not "positive" rights. A cogent defense of this is argued well here (though it is from a generally anti-libertarian site), Roger E. Bissell, "The Case Against Egoistic, Libertarian Baby-Starving," http://www.rogerbissell.com/id11kk.html, accessed April 15, 2015. Further Walter Block's evictionism argues that the right to eviction does not entail the right to neglect after eviction, https://www.lewrockwell.com/lrc-blog/evictionism-the-only-true-libertarian-position-on-abortion/, accessed April 16, 2015.

[16] This is indeed happening. I am an Editor at the Facebook Group, Pro-Life Libertarians, (https://www.facebook.com/ProLifeLibertarians, total page likes of 2356 as of August 24, 2015). These are people who self-identify as "libertarians" but a significant portion of active commenters are not registered Libertarians due to this position. While some of those would not register or affiliate themselves with the Party unless it took a blunt pro-life position, the opinion of the Group Owner is typicalÉ when I asked if a neutral position would cause him to reconsider his refusal to register as a Libertarian, he said it would.

[17] See "An Exchange Between David Nolan and Doris Gordon of Libertarians for Life," http://www.l4l.org/library/nolan.html, accessed April 15, 2015. Nolan enclosed a copy of that editorial on "The Five Essentials of Liberty" which also can be found at this link.

[2/11/16- there were two non-substantive errors brought to the author's attention and corrected- an author's note inadvertently left in and an incorrect word in a sub-argument title]