Over at mine the other day I blogged very briefly on the proposed changes to abortion law in the UK, prompted partly by The Daily Mash’s description of Nadine Dorries as a vagina based Cerberus making sure the nation’s wombs aren’t being used wrong. In the comments Reinhard said:
Surely abortion is not about doing what you want with your own uterus, as you put it, but to do what you want with the life of another, who just happens to be living in it? It seems incongruous to promote the liberty of one at the expense of the life of another.
Being such a thorny issue I’m afraid the reply isn’t brief, though I’m not going to go into abortion as birth control (for the record I think it’s not a good choice) and I’m not going to go into the linked theme of free abortions on the NHS (for the record I think abortions should be free market and cost money – lots of money if left late1). If you just want to hear a pro-choice libertarian argument then read up to the photo about halfway down. If you want to hear what I think a libertarian solution might be then stick around a bit longer.
My personal view of abortion is a bit big C Catholic. I don’t like the idea and wouldn’t consider it even for a picosecond if I was female and up the duff. But I’m also a libertarian and even more against anyone else exerting ownership over bits of someone else’s body, which I see as a greater evil. In short I’m for the right to choose but I really wish more would choose to keep it, and being a bloke I think I’m skating on thin ice if I go any further than that. But even if I were female would that give me any say over whether another woman has one? No, because it’s her body. As a man if it were my baby I’d certainly make my feelings known, but even then it’s not me who gets the extra weight, the swollen ankles, the back ache, the weird food cravings, the risk of various complications from annoyances like piles to life threatening conditions such as preeclampsia and ectopic pregnancy – not to mention the actual pain of labour and birth. Even if it’s my kid too can I demand that of a woman and force her acquiescence? Honestly, no. So far, so libertarian, but what about the occupant, the person who, as Reinhard points out, is living in there?
Well, there’s a point after which abortion is undeniably ending the life of another person for your own benefit, and Reinhard’s absolutely right that there’s nothing at all libertarian about that. Imagining for the moment that there were no abortion laws and assuming that the woman’s own life was not in danger and that it was simply a lifestyle choice to abort very late – say 35 weeks or so – it’d be hard to see it as anything other than murder for one’s own gain, arguably the most severe and permanent infringement of an individual’s liberty that there is.2 However, at the other end of the process – around the time a morning after pill is used, for instance – it may be no more preventing a small number of undifferentiated cells from plugging themselves into the uterine wall in about a week’s time. At this point we’re nowhere near the stage where these cells can be called a foetus and I’m not even sure that technically it’s an embryo yet. Living cells, yes, but not yet what we can call someone living in the uterus (in fact this early it’s still in the fallopian tube anyway). We can go further still and consider that those cells are almost entirely the woman’s own material except for the tiny component which is the single sperm that got into the ovum, and anyone who’s ever finished off a round of horizontal tango and found that the condom broke will know that that sperm cell may not necessarily have had an invite.
So the question at the point of a day old pregnancy is whether these few undifferentiated cells already have rights over the uterus that trump those of the uterus’ owner. Leaving aside the less contentious issue of pregnancies brought about by rape, do those cells get rights because the woman willingly took part in an enjoyable activity which admitted other cells into her body, one of which resulted in her becoming pregnant? It’s tempting to think active participation makes it so, but what if her partner had had a sore throat and she’d taken in a few streptococcus cells while kissing? That too would have happened because she willingly took part in the kiss, and it could as easily have been a kiss during sex, but nobody would say those cells had any rights in her body or that she shouldn’t go take some antibiotics for strep throat. I’m not equating a human embryo (though it is not yet an embryo) with some strep-A here, I’m just pointing out that willing participation in unprotected sex is not in itself a logical reason to suppose that pre-embryonic cells have any rights to the body, so if we’re to assume those cells do in fact have rights it must be because of what they have the potential to become.
And here we run into another problem – most become nothing at all. Though I first learned this at school I’m not sure it’s widely known, but the majority of pregnancies fail and the majority of those that fail will fail early, i.e. in the first trimester. Some will not progress beyond the first week because implantation doesn’t happen for some reason, and more fail soon after implantation. Who knows why. Maybe sometimes the menstrual cycle continues just as if nothing had happened, maybe sometimes the body knows something isn’t quite right. Probably it just happens and nobody really knows why. Depending who you ask (no agreement, what a surprise) more than half and perhaps as many as three-quarters of all pregnancies fail in the first trimester, often without the woman ever even knowing she was pregnant. A woman with two children may have been pregnant several times and only ever have been aware of the two that made it to term. The ones that never made it would have, er, exited the uterus in the obvious way. So it seems hard to assume that very early embryos/pre-embryos have rights to the uterus because of what they may become when sadly it’s quite likely that they’ll become a slightly heavier than normal menstrual flow and perhaps worse than usual cramps. When you add the number of later miscarriages, pregnancy complications and maternal mortality, along with the fact that even if all goes well the process that begins with two tiny cells leads up to something like trying to pushing a fire extinguisher through a mail box, quite frankly the miracle of childbirth is that it happens at all.
So we’ve got a process of about 265 days, at one end of which it’s impossible to see the occupant of the uterus as anything other than a living being with as much right to life as the mother (assuming her own life is not in danger), and at the other end of which arguments that it has rights are necessarily emotional because while it consists of living cells it is not yet a being and may never become one even without intervention. At one end there is definitely a someone, and like any other someone objectively his or her life has value. At the other end is a something, and while it’s something I’d value almost as much I can’t deny that that’s subjective. In between those two extremes is a large area that’s increasingly grey around the middle. As I said early on, there’s a point after which it’s impossible to see an abortion as anything other than ending a human life, but equally there’s a point before which, if we’re being dispassionate about it, we can’t say that it’s anything more than guaranteeing the removal of a small number of cells rather than leaving it to that 50-75% chance.
The difficulty is that it’s nigh on impossible to reach agreement on where those two points are, and in the latter case many deny (invariably resorting to emotional arguments) that it exists at all and place higher subjective values on those cells than others do. And I’m one of them. If anyone reading this is pregnant I’m going to be honest and say that the value I’d place on those pre-embryonic cells inside you now is almost as high as your own life, but knowing what I know – that those cells are not yet a person and probably will not become one, possibly without you even being aware they ever existed – I cannot justify that subjective value being treated as an objective one, and if libertarianism is about one thing it’s not imposing subjective moralities on everyone regardless of whether they agree. If I can impose my morality on a pregnant woman and insist she be legally prevented from having an abortion even within 24 hours of her putting out her post shag cigarette then there’s no reason I couldn’t insist that she be legally prevented from smoking at all for the next nine months. And drinking for that matter, and maybe to be on the safe side she should be forced to take folic acid and banned from flying or being in the same room as any soft cheese. We take the piss whenever someone resorts to “Won’t someone think of the chiiiiiiiiildren” as a reason to restrict others’ liberty but if I stood here saying “Won’t someone think of the pre-embryooooooooooohnic cell clusters” wouldn’t that be an even weaker argument?
Okay, so that’s why I criticise the Nadine Dorrieses (Doerriesi?) of the world despite being on their side on the morality bit, but if you’ve noticed that I’m all criticism and a bit short on proposing alternatives you’d be right. So what’s the libertarian solution, or what do I think it might be? Generally issues of freedom are very black and white to me: either you have freedom of speech or religion or association and so on or you do not, and any restriction at all no matter how slight means you do not. When it comes to deliberately ending pregnancies the one thing we can be sure of is that black and white rapidly becomes impenetrably grey before becoming black and white again, and it strikes me that if we’re trying to find one point in that impenetrably grey area before which abortion is permitted and after which it isn’t then no date we choose can possibly be a libertarian solution.
Twenty-four weeks, twenty, sixteen, twelve, six, one or thirty-eight, whatever it is it will be wrong for some, either grown women or unborn babies or both, because arbitrarily chosen hard limits almost always are. Take the age for buying alcohol, for instance. Clearly it’s ridiculous to imagine that everyone aged up to 17 years, 364 days and 23 hours is too immature to buy booze but that everyone aged exactly one hour older is suddenly, magically, mature enough to be allowed to buy as much as they like. Ridiculous, yet the use of a hard age limit makes the law act as if that’s how life is. The reality is that if it’s a good idea not to let someone who’s an hour short of a particular birthday do something it’s probably not a good idea to let them do it an hour afterwards either, and conversely if there’s no reason not to stop them immediately after that birthday then it’s almost certain they’d have been fine before as well. Even if by some miracle the age chosen happens to be that at which exactly half are mature enough and the other half aren’t all that’s achieved is an age limit that’s wrong for nearly everyone – all the mature ones will have been unnecessarily restricted before that point and all the immature ones are going to be let off the leash too early. It’s hard enough to pretend that’s a libertarian way of deciding when people on the borders of adulthood can choose to drink or smoke or have sex or drive or vote or any number of things, it’s even harder to pretend it makes sense when trying to determine the point at which an abortion is okay. Worse, we’re trying to combine those two separate points of no longer being just a bunch of cells and becoming an unborn person, which incidentally are very hard if not impossible to precisely define beyond knowing that they occur weeks apart, into one single point during the average pregnancy. And then to cap it all it’s rounded to the nearest week. Let’s not kid ourselves, that’s not about getting it right but getting it to sound right. When we try to bash those two indefinable points into one whatever we pick is going to be wrong and we’ll just end up with a point at which most people in society, or more likely most politicians, are comfortable with trading off the liberties of adult women and unborn children.
That being so I feel that the beginning of any libertarian solution probably means not trying to bash those two points into one dividing line and instead consider a pregnancy to consist of three stages (not necessarily of equal length). First are those early weeks when the pregnancy is just a bunch of cells, not even differentiated cells very early on, and during which time so many pregnancies end naturally anyway; last are those latter months where it, or rather he or she, is undeniably a baby, and one which has a high chance of survival if born prematurely; and in between is that state between the two where it’s no longer the former but is not quite yet the latter either. What happens when we apply the libertarian’s favourite guide, the non-aggression principle, to the idea of abortion in each stage?3
In the first is the woman committing an act of aggression against another individual if she seeks an abortion? No, because what’s there is not yet a separate person but a cluster of cells – almost all the material of which is the woman’s own – that might become a person, though the chances at this early stage aren’t great. I don’t have to like the idea but I’m forced to concede that the only act of aggression would be forcibly preventing her from ending the pregnancy at that point if that’s what she wishes. Obviously that wouldn’t apply in the last stage of pregnancy when the baby really is a baby, highly likely to survive outside (ignoring the normal dependency of children on their parents, of course) and is therefore undeniably his or her own individual person. Abortion at that point is an act of aggression toward that baby, though it might be acceptable if necessary to save the mother, especially if she already has dependants. The tricky bit is that middle stage where the foetus is more than just a ball of cells but is not really a baby yet either and certainly couldn’t survive a premature birth.
So perhaps the answer might be to change the law to allow all abortions up to, say, 12 weeks or whatever appropriate experts advise is a point at which we are still talking about a lot of cells. Pregnancy testing is very reliable these days and since it’s now even possible to confirm pregnancy before a period is overdue anyone who thinks they might be pregnant should be capable of finding out in plenty of time. And plenty of time would be necessary because murder charges would be brought after that second point at which the baby is definitely a baby and would probably have lived if born on the way to the clinic. Those in between would be free to seek an abortion but would do so in the knowledge that they might, though not certainly would, still end up having to justify it in court. Would that mean fewer late abortions? Maybe a little but if the second limit was still 24 weeks it might not alter much. Is it libertarian? Maybe a little, but if you wanted an even more libertarian answer perhaps you could go further.
What if there wasn’t an abortion law at all any more, but neither did the law require a person to have actually been born and certified to be considered a person?4 In the absence of a law saying that abortion is okay up to an arbitrary point X and illegal thereafter would there be more abortions? Possibly, since there’d literally be no law against abortion and ipso facto a woman would be free to seek one at any stage of pregnancy. But being free to seek doesn’t imply any guarantee of finding, and it’s equally possible that there’d be fewer abortions if, depending on the stage of the pregnancy, the law might see it as having killed an actual person. I expect it would be easy to find someone willing to perform an abortion of an obviously early pregnancy, probably easier than it is now, but increasingly difficult the further into that grey area the pregnancy goes. You might even find that while a woman approaching the current legal limit of 24 weeks would be just as free to seek an abortion she might struggle to find anyone willing to risk performing it, and I reckon it’s highly unlikely anyone would chance it after 24 weeks since premature babies are increasingly likely to survive beyond that point and the risk of charges and a conviction would rise just even more rapidly.5
Oh, you may get a small number lying about how far along they are, taking a week or two off if too many clinics are refusing them an abortion because of how late it’s been left and the risk of a murder charge having grown too high, but the medical profession are pretty good at estimating foetal age and since few will want to chance charges you can expect the vast majority to play safe with how late they’ll perform an abortion and to check if there’s the remotest doubt. Even now in England and Wales it’s apparently not easy to get an abortion past 20 weeks despite the law allowing it up to 24 weeks and most take place in the first trimester (in 2004 about 185,000 took place, nearly 90% before 12 weeks and fewer than 2% after 20 weeks – this would of course include those that are thought medically necessary), so I doubt much would change. More likely most women who think they may be pregnant will check earlier, and if they’re sure they want to be made not pregnant they won’t hang about.
Libertarianism, at least the way I see it, is both freedom and responsibility. The choice to end a pregnancy, whatever my personal feelings on the matter, is about a woman’s freedom and ownership of her own body to begin with and, if she doesn’t want to be pregnant, about her responsibility to exercise her choice long before the stage at which she’s also responsible for a human life within her. Since that stage is in that middle grey area it will always be a matter of debate, so if it’s to happen it seems better for it to happen earlier. I reckon that’s more likely if leaving it too late means no longer being knocked up but being banged up instead, and if an unborn person has been killed then being banged up for it seems fair enough to me.
And if this rather depressing post has left you feeling a bit in need of a happy ending do please scroll down and read the last footnote. I don’t believe in gods, not least because I’ve never been able to see anything intelligent about the design of human reproduction – fire extinguisher through a mailbox, remember – but even I would say that occasionally there are miracles.
1. Next time drop a few bucks on proper contraception before you drop your pants.↩
2. As far as I can tell, in England and Wales abortions that aren’t allowed by the 1967 Abortion Act are an offence under sections 58-59 of the 1861 Offences against the Person Act, known since a later Act as “child destruction”. To my simple mind this is a misleading term – you destroy a thing, but you kill a person. Why not call the abortion of a late term viable pregnancy what it is: murder? Child destruction could then be used as it is by several parents I know: to describe crayon all over the sofa, toast in the DVD player and a finger painting of a five legged cow on the brand new 40″ TV.↩
3. I say ‘we’ but of course this is just how I see it. This is libertarianism and your mileage may vary.↩
4. Of all the petty evils for which I despise the modern bureaucratic state one of the vilest and most insensitive is the requirement for prospective parents who’ve just suffered the heart-splitting tragedy of late miscarriage to have to go and get a birth certificate and a death certificate at almost the same time. The incandescent rage I feel just typing that out is making my fists clench. Certificates? With everything else these people are going through, you bastards want certificates? Tell you what; I’ll certify that you can all go fuck yourselves hard in the face with a rusty trowel.↩
5. Many premature babies do still die in infancy and this is more likely the more premature they are. Blindness and brain damage are fairly common among very premature survivors. However, it’s worth noting that James Gill, who being born at 21 weeks and 5 days is the premature baby record holder, not only survived but is now a 24 year old who played rugby at school and studied automotive marketing at college. Perfectly normal in every way except that he should celebrate his birthday some 3½ months later than he actually does.↩