Electronic copy available at: http://ssrn.com/abstract=1889452
COMPROMISING THE UNCOMPROMISABLE: A PRIVATE
PROPERTY RIGHTS APPROACH TO RESOLVING
THE ABORTION CONTROVERSY
Dr. Walter Block1 and Roy Witehead2
In this article we advocate a liberty and private property rights
approach to the issue of abortion. While some contend that the famous
cases of Roe v. Wade and Planned Parenthood v. Casey settles forevermore
the question of whether a woman had a legal right to an abortion, a great
deal of controversy stdl lingers. This is so because abortion has become all
too commonplace. About thirty-five percent of all American women w d
obtain an abortion during their childbearing years.' This easy availability
fuels the ire of and represents the equivalent of a holocaust to anti-abortion
advocate^.^ Some believe that 39 mdlion lives have been snuffed out by
abortion since Roe was de~ided.~ President George W. Bush is critical of
the easy availability of abortion^.^ Critics claim his administration is
engaged in a war against women's reproductive rights by appointing anti-
abortion advocates to the federal standing advisory cornrnittee of the FDA
on reproductive health and trying to establish a link between breast cancer
1. PhD, Wirth Eminent Scholar Endowed Chair in Economics, Loyola University,
New Orleans. The senior author of this article wishes to thank David Kennedy, Anthony
Sullivan, and the Trustees of the Earhart Foundation for the financial support necessary to
write this article. The opinions expressed herein, of course, reflect the thinking of the
This article is dedicated to the anti-abortionists most akin to the abolitionists in the
early part of the 19th century who not only wrote and spoke out against slavery, but
actually did something to stop it: namely, those who physically interfered with abortion
clinics and wi~h abortionists. But, as will be explained below, this applies only to those
who help stop abortions when eviction is an option.
The authors of the present article wish to congratulate the editors of the Appalachian
Journal of Law for their courage in publishing it. This article was accepted for publication
previously by both the Thomas M. Cooley Law Review and the Manitoba Law Journal; in
each case, the editors reneged and refused publication despite their initial acceptance.
2. JD, LLM, Associate Professor of Business Law, University of Central Arkansas.
3. 410 U.S. 113 (1973).
4. 505 U.S. 833 (1992).
5. See generally Roger Simon, The Argument that Never Ends, U.S. News, www.usnews.
com/usnews/issue/030120/usnews/20roe.htm (Jan. 20, 2003).
8. See id., where White House Chief of Staff Andrew Card is quoted as saying that
ending abortion is "a high moral priority" for the president.
Appalachian Journal of Law
slim as they are in the House and Senate, will lead to a push for the aboli-
tion of a woman's right to an abortion.
Some members of the Senate have made it clear that they intend to
do what they can to overcome the holding of Roe v. Wade.'' Anti-abor-
tion activists believe that there are two key steps that must be achieved in
order to overturn Roe v. Wade." First, they must establish by law, govern-
ment policy, and most important, in the minds of voters, that a fetus12 is a
human being.13 If a fetus is human" it warrants the equal protection of the
law afforded to the mother. Secondly, anti-abortion activists seek to get
more conservative judges appointed.15 On the other hand, those opposed
to whittling away the so-called privacy right to abortion announced in Roe
v. Wade, desperately seek to thwart the confirmation of conservative
judges. Witness the brutal and unprecedented filibuster of an appeals court
judge in the case of Miguel Estrada.
Many believe that the current Republican majorities, as
Before turning to our discussion of the liberty and property interest
involved in the abortion question, we commence with a discussion of the
guiding cases of Roe v. Wade l6 and Planned Parenthood v. Casey.17 Roe was
a pregnant single woman who brought an action challenging the Texas
criminal abortion laws that prevented procuring or attempting an abortion
9. Caryl Rivers & Rosalind C. Barnett, The War Against Reproductive Rights, Boston
Globe A15, (Mar. 1, 2003).
10. See generally Jim VandeHei, GOP Looks To Move Its Social Agenda, Wash. Post A1
(Nov. 25, 2002).
12. The question of whether the mother is carrying a fetus or an unborn child is an
emotionally charged one in the abortion debate. Witness the uproar that followed when
the Boston Globe described an unborn child lulled in the mother's womb by a stray gunshot
as a fetus. Several readers were "horrified" by the Globe's alleged insensitivity for the life of
what they regarded as a living baby. They thought the Globe was taking sides in the
abortion debate. The paper's concern about the outburst of criticism required a response
by its ombudsman. The paper's editors decided in the future to use terms "like the chdd
the wonian was bearing," rather than fetus. See Christine Chinlund, Fetus or Baby, Boston
Globe A13 (Feb. 17, 2003).
13. Supra n. 5. See also, Meghan Cox Gurdon, Mother $All Rights, Wdl St. J., Jan. 21,
2003, where the author writes, "Abortion doctors dispatch unwanted 'fetuses,' but at
crowded fertility clinics those same organized clusters of cells are referred to as 'babies.'
Well, which is it?"
14. In Mississippi "it" is a person. The Mississippi Supreme Court recently decided that
a non-viable fetus was a person for the purposes of the state's wrongful death statute. See
Federal Credit Union v. Tucker, 853 So.2d 104 (Miss. 2003).
15. Supra n. 5.
16. Roe, 410 U.S. 113.
17. Planned Parenthood, 505 U.S. 833.
20051 Compromising the Uncompromisable 3
except on medical advice for the purpose of saving the mother's life.18
The only exception to the Texas criminal proscription was the purpose of
saving the life of the mother.19 Roe claimed she was entitled to terminate
her pregnancy by an abortion performed by a competent physician under
safe medical condition^.^^ She could not obtain an abortion in Texas
because her life was not threatened by the pregnancy.21 This plaintiff
alleged she could not afford to travel to a jurisdiction where abortions were
legal." She said that the Texas statutes infringed upon her right of person-
nel privacy under the First, Fourth, Fifih, Ninth, and Fourteenth Amend-
ments of the Con~titution.~~
In effect, she claimed that the Texas statute
infringed the right of a pregnant woman to terminate her pregnancy.24
This right is discovered, according to Roe, in the personal liberty rights
found in the Fourteenth Amendment's Due Process Clause and/or in the
personal, marital, familial, and sexual privacy protected by the B i l l of
Speahng for the majority, Justice Blackman indicated that there are
three "recognized" important life and health risks associated with abor-
t i ~ n . ~ ~ They are: "a. the skill of the physician, b. the environment in
which the abortion is performed, and above all c. [tlhe duration of preg-
nancy, as determined by uterine size and confirmed by menstrual
Given the foregoing, the Court decided that the state has at least
three legitimate interests in regulating abortion. One is to see that the
abortion is performed under conditions that insure safety for the patient.28
This interest includes the physician and his staff, facilities used, and the
availability of adequate care for any complication or emergency that might
arise either during or after the procedure.29 Justice Blackman pointed out
that this interest is justified by the high mortality rate at non-regulated
18. Roe, 410 U.S. at 120.
19. Id. at 118.
20. Id. at 120.
24. Id. at 129.
25. Id. See generally, Griswold v. Connecticut, 381 U.S. 479, 481-486, where the Court
decides that the Connecticut statute forbidding the use of contraceptives violates the right
of marital privacy which is within the penumbra of specific guarantees of marital rights.
The Court concludes that the idea of allowing the police to search the marital bedroom for
evidence of the use of contraceptives is repulsive to the privacy that protects the marriage
relationship. Id. at 486.
26. Id. at 145.
27. Id. (internal quotation marks excluded).
28. Id. at 150.
4 Appalachian Journal of Law [VOL. 4:l
"abortion ~ S . " ~ O
protecting the health of the mother.
Finally, the state has an interest, or even a duty, to protect prenatal
life." Justice Blackrnan indicated that some wish that ths interest com-
menced at c~nception.~~
If life begins at conception, obviously, the only
legitimate justification for abortion would be to protect the life of the
mother." But the Court did not adopt that approach. The majority
decided that they could give recognition to a less rigid rule to determine
when a potential life is involved.34
The Court said that while the Constitution does not mention any
specific right to privacy, it has long recognized a right of personal privacy
and that there is some guarantee of zones of privacy under the Constitu-
t i ~ n . ~ ~ In any event, the right of privacy, wherever found, includes a
woman's decision on whether or not to have an abortion.36 AU sorts of
detrimental results might naturally flow from the state denying a woman's
right to an abortion. Among them are psychological harm, lack of child-
care, the trauma of the unwanted child, the stigma of being an unwed
mother, the mental and physical health of the mother, the resources of the
mother, and the mother's ability to care for the childa3'
Roe argued that a reasonzble consideration of these factors made the
woman's right to an abortion absolute." In other words, she could termi-
nate her pregnancy at any time for whatever reason she chose. The Court
The Court held that at some point in the pregnancy, the state's inter-
est in safeguarding health, maintaining medical standards, and protecting
the life of the fetus, become compelling enough to sustain legitimate regu-
lation of the factors that govern the abortion decision.'O As a consequence,
the mother's privacy interests are not absolute.
The Court continued, "We, therefore, conclude that the right of per-
sonal privacy includes the abortion decision, but that this right is not
unqualified and must be considered against important state interests in reg-
ulation."" The majority believed that at some point the government's
As a consequence, the government has an interest in
33. Id. (otherwise, abortion would clearly be murder.)
34. Id. at 150-152.
35. Id. See Gviswold v. Connecticut, 381 U.S. 479, (1965)(holding that a privacy right to
use contraceptives fit within the penumbra of rights found in the Bill of Rights).
36. Roe, 410 U.S. at 153.
40. Id. at 154.
Compromising the Uncompromisable
interest in protection of health, medical standards, and prenatal life,
became compelling enough to justitjr regulations that limited the woman's
right to an abortion." It is long established that when fundamental rights
are involved that any regulations impacting those rights are only justified
when there is a compelling state interest.43 But the government has a com-
pelling interest in protecting health and prenatal life that justifies regula-
tion, according to this finding.44
The Court next took up the question of whether or not a fetus is a
"person" within the meaning of the Fourteenth Amendment of the Con-
~titution.~This is a critical issue because if a fetus" is a person from the
moment of conception47 then a right-to-life would be guaranteed by the
Fourteenth Amendment." Sadly, for judges, there is little authority in the
Constitution for deciding on a definition of a "per~on."'~ In almost all
instances this word is used in the post-natal sense.'' As a consequence, the
Court was convinced that the word "person" does not refer to the
unborn." That said, the Court's conclusion that a fetus is not a person
does not foreclose the state's interest in regulating abortion. Why?
42. Id. at 155.
43. Id. (citing Kramer v. Union Free Sch. Dist., 395 U.S. 621, 627 (1969)).
44. Id. at 156.
45. Id. at 157.
46. Recently the Michigan Court of Appeals took up the question of whether an
expectant mother who stabbed to death her boyfriend could use a "defense of others
defense" because she feared for her fetus. The fetus was in its sixteenth or seventeenth
week and would not be considered viable under Roe v. Wade. One of the issues was
whether an unborn child was a person entitled to the defense. The trial court ruled that
there had to be a "living human being independent of the mother." The Michigan Court
of Appeals decided that the defense could be used because the state's public policy was to
protect a fetus from an intentional act. They found the basis for the public policy in the
Michigan's Fetal Protection Act. See People ofthe State ofMichigan v. Kurr, 253 Mich.App.
317 (Mich. App. 2002), appeal denied, 467 mch. 943 (2003).
47. One commentator sums up the question in stark terms. "If the fetus isn't human,
then getting an abortion is no hfferent than getting a tattoo or a nose job. It's a victimless
procedure that is nobody's business and should be legal. If a fetus is human, then the logical
conclusion is inescapable: abortion by definition is homicide and should be illegal except
when, to save the her own life, the mother aborts in self-defense." See Norah Vincent,
Wrong Foctis on Abortion Issue, Los Angeles Times (Jan. 9, 2002). (available at www.latimes.
48. Roe at 156-157. See supra n. 5, where the Simon article points out that to some in
our society abortion represents an American holocaust resulting in the "mass murder of the
unborn that has claimed more than 39 ndion lives since the Supreme Court made
abortion legal on Jan. 22, 1973.".
49. Id. at 157.
51. Id. at 158.
6 Appalachian Journal of Law
Because at some point in the life cycle, the fetus surely becomes a person
entitled to life.j2
The pregnant woman is not alone in her privacy. She is joined by
and possesses an embryo and later a fetus, and it is appropriate according to
the legal philosophy we are examining, for the state, at some point, to
develop an interest in the health of both the mother and that of the poten-
tial human life.j3
Texas argued that life begins at c~nception.'~ The Court indicated
that it need not resolve the difficult question of when life begins because
even those trained in philosophy and theology are unable to agree on an
answer.j5 And it refused to speculate on the correct an~wer.~"
The Court pointed out that on the question of when life begins, the
common law found great significance in q~ickening.~' On the other hand,
physicians and scientists have regarded quickening with less interest and
have generally focused on conception, live birth, or some interim point in
which the fetus becomes "viable."58 The Court concluded that viabilitys9
usually occurs at about twenty-eight weeks but, in some cases, may occur
The majority announced that it would not agree that by adopting the
Texas theory that life begins at conception that the state may override the
privacy rights of the pregnant woman." The Court, however, also
announced that the government had a legitimate interest in protecting the
health of the pregnant woman and the potentiality of the human life she
bears.62 How best to do that was the tricky question. The Court recog-
nized that the interest of a woman seeking an abortion and the interest of
the potential life in her womb may conflict with one another. At some
point during the woman's pregnancy, the interests of each party become
"~ornpelling."~~ The question to be resolved is "When is that point?"
First, the Court dealt with the health of the mother. It announced
that with respect to the state's legitimate interest of helping her, the "com-
pelling" point, in light of present medical kn~wledge,'~
is at approximately
52. Id. at 159.
57. Id. at 160.
59. Id. (the ability to live outside the womb.)
61. Id. at 162.
63. Id. at 162-163.
64. Does this mean that me&cal advances might result in a different "point?" See below
for a discussion of this question.
Compronzising the Uncompromisable
the end of the first trimester." From this point on, the state may monitor
the abortion procedure to the extent that the regulation relates to the pres-
ervation and protection of maternal health.66
It follows, on the other hand, that for the period of pregnancy prior
to the "compelling" point, the doctor and the pregnant woman are free to
determine whether or not the patient's pregnancy should be terminated."
If they so decide, the woman is entitled to an abortion, free from any
interference from the state.68
Next, the Court dealt with the interests of what is called "potential
life. "" Consequently, the state's legitimate interest in potential life, the
so-called "compelling7' point, is at ~iability.~' At this stage of the preg-
nancy the state has a compelling interest in the potential human life con-
tained in the woman's womb.71 The Court decided that the Texas penal
code was too restrictive because it made no distinction between abortions
performed early in pregnancy, before the viability of life, and those per-
formed later.72 Secondly, it was too restrictive in that it limited abortion to
a single reason, "saving" the mother's life.73
The Court indicated that its decision allowed the state to place more
stringent restrictions on the availability of abortion as the length of the
pregnancy increases, as long as they are tailored to consider the "compel-
ling" interest of both the mother and potential life.
65. Id. at 163 (The court said this is a reasonable point because mortality in abortion
prior to this point is less than mortality in normal childbirth).
66. Id. (The court listed examples of permissible regulation as "qualifications" of the
doctor, "licensure" of the doctor, and designation of the facility as a clinic or a hospital.)
70. Id. (The ability to live outside the womb.)
71. Id. (Once the state has a compelling interest in the viable life it may regulate
72. Id. at 164.
73. Id. at 164-165. Here, the court summarized and repeated its decision. The court
indicated: "A state criminal abortion statute of the current Texas type, that excepts &om
criminality only a life-saving procedure on behalf of the mother, without regard to
pregnancy stage and without recognition of the other interests involved, is violative of the
Due Process Clause of the Fourteenth Amendment. (a) For the stage prior to
approximately the end of the first trimester, the abortion decision and its effectuation must
be left to the medical judgment of the pregnant woman's attending physician. (b) For the
stage subsequent to approximately the end of the first trimester, the State, in promoting its
interest in the health of the mother, may, if it chooses, regulate the abortion procedure in
ways that are reasonably related to maternal health. (c) For the stage subsequent to viability,
the State in promoting its interest in the potentiality of human life may, if it chooses,
regulate and even proscribe, abortion except where it is necessary, in appr~priate medical
judgment, for the preservation of the life or health of the mother."
Appalachian Journal of Law
Roe v. Wade was decided in 1973. For nineteen years the Court's
determination that the Constitution protects a woman's right to terminate
her pregnancy in its early stages was sharply questioned. Finally, in 1992
in the case of Planned Parenthood o f Southeastern Pennsylvania v. C~sey,'~
Supreme Court was given an opportunity to reexamine the principles that
undergird Roe. Recall that Roe decided that a woman's decision to termi-
nate her pregnancy is a "liberty" protected by the substantive rights found
in the Due Process Clause of the Fourteenth Amendment. Obviously, the
Fourteenth Amendment does not specifically describe the limits of the
substantive rights contained therein. Consequently, the adjudication of
substantive due process rights requires the Supreme Court to exercise its
judgment in determining boundaries between the individual's liberty and
the demands of society in protecting the unborn. Those boundaries were
again explored in Planned Parenthood. The issues raised in Planned
Parenthood were framed by six provisions of the Pennsylvania Abortion Act
of 1982. Briefly they are that the Act requires that: 1. the woman seelng
the abortion give her informed consent prior to the abortion procedure; 2.
that she be provided certain information at least 24-hours before the abor-
tion is performed;75 3. that in the case of a minor, she have the consent of
one of her parents;76 4. that a married woman who seeks an abortion must
indicate in writing that she has notified her husband of the intended abor-
t i ~ n ; ~ ~
5. compliance is exempted with the first three requirements in the
event of a "medical emergen~y;"~'
and, 6. there are reporting requirements
placed upon facilities that provide abortion service^.^' The district court
found that all provisions at issue were uncon~titutional.~~
Appeals for the Third Circuit upheld a l l the regulations except for the
husband notification req~irement.~'
The High Court comnienced its analysis by stating that the Due Pro-
cess Clause of the Fourteenth Amendment provides a coilstitutional pro-
tection of a woman's decision to terminate her pregnan~y.'~ The Court
indicated the controlling word in the Fourteenth Amendment that governs
The Court of
74. 505 U.S. 833 (1992).
75. Id. at 844.
80. Planned Parenthood v. Casey, 744 F. Supp. 1323 (E.D. Pa. 1990), afd in part and rev'd
in part, 947 F.2d 682 (3d. cir. 1991), afd in part revJd in part, 505 U.S. 833 (1992).
81. Planned Parenthood v. Casey, 947 F.2d 682 (1991), afd in part and rev'd in part, 505
U.S. 833 (3 992).
82. Planned Parenfhood, supra note 74 at 846.
Compromising the Uncompromisable 9
a woman's right to an abortion is "liberty."83 The Court commenced its
analysis by reaffirming what it called the three essential holdings of Roe:
1. The right of a woman to have an abortion before viability and
without undue interference from the state.84 (As previously indicated,
before viability, the state's interest will not support the imposition of a
substantial obstacle to the woman's elective right to an elective procedure.)
2. The state's power to restrict abortions after fetal viability, when
the law has exceptions for pregnancy problems that might endanger the
woman's life or health.85
3. The state has a legitimate interest from the outset of pregnancy in
protecting the health of the woman and the life of the fetus that may
The Court clearly indicated that it continued to follow each of the
foregoing three principle^.^' The majority concluded that any reservations
the justices may have expressed about the central holding of Roe are clearly
outweighed by the individual liberty interests involved when they are
combined with the force of the doctrine of stare decisi~.~~
pointed out that although much criticized, Roe has not been proven
The High Court said that even if the three principle holdings of Roe
were in error that would only concern the strengths of the state's interest
in fetal protection. That is, the central recognition afforded women's lib-
erty interest by the Constitution would stand even if Roe was o~erruled.~~
According to the Court, the liberty interest, which supports the Roe deci-
'[Tlhe interest in independence in making certain kinds of
important decisions.' While the outer limits of this aspect of
protected. liberty have not been marked by the Court, it is
clear that among the decisions that an individual may make
without unjustified government interference are personal
decisions relating to marriage, procreation, contraception,
family relationships, and child rearing and education.''
The High Court forcefully stated that there is a constitutional liberty
interest on the part of a woman to have some freedom to terminate her
88. Id. at 853.
89. Id. at 855.
90. Id. at 858.
91. Id. at 858. (citing Carey v. Population Serv., 431 U.S. at 684-685 (citations omitted)).
10 Appalachian Journal of Law
pregnancy.92 As a consequence, the Court believed it was unable to repu-
diate the constitutional basis on which Roe was decided.93 But that right
is not completely free from reasonable state regulation that protects the
interest of both the woman and the unborn
in Roe, at the point of viability the government has an interest of sufficient
force to regulate the right of the woman to terminate her pregnancy.95
The Court then faced the central criticism that the line drawn by the
Roe court to allow government intervention, the viability of the fetus, was
somewhat puzzling.96 The Planned Parenthood court's response was that the
claims of women to retain the ultimate control over their destiny and their
bodies, claims implicit in the very meaning of liberty, required it to decide
when the unborn child was ~iable.~'
The Court said, "Liberty must not be
extinguished for want of a line that is clear."98 But the duty of the court
required it to draw a line.
The Court forcefully concluded that the line should be drawn at via-
bility. Thus, before that time a woman has a right to choose to have an
abortion." There are two reasons to abide by that principle. First, while
there is always a risk that the judicial act of line drawing may seem arbi-
trary, Roe was a reasonable decision reached with great care.'''
doctrine of stare decisis requires that the Court adhere to the principles
announced in Roe. Secondly, viability is the time when there is a possibil-
ity of maintaining and nourishing a life outside the womb. Consequently,
the independent existence of a second life can reasonably be the object of
state protection that now overrides the liberty interest of the woman."*
The Court was much concerned that overturning Roe's limitation on
state power would result in serious inequity to people who had relied on
the decision for close to two decades. The judges pointed out that men
and women have organized intimate relationships and made choices that
define themselves and their places in society relying on the availability of
an abortion in the event that contraception should fail.lo2 The majority
believed that the ability of women to participate equally ir, the economic
and social life of the nation had been greatly advanced by their capacity to
control their reproductive lives.lo3 Overruling Roe would come at a great
And, as the Court said
92. Id. at 869.
99. Id. at 870.
101. Id. See Roe, 410 U.S. at 163.
102. Planned Parentlzood, 505 U.S. at 856.
Compromising the Uncomprornisable
cost for people who have adopted their thmlung and their lifestyles on the
basis of the holding of that case.lo4
It is possible that maternal health care advances after the Roe decision
may very well allow safe abortions at a later time than the current viability
standard.lo5 Also, post Roe neonatal care may have advanced viability to a
point somewhat earlier in time. Io6 However, these possible changes only
go to the time limits of the competing interests of the mother and the
They have no bearing on the correctness of the critical
holding of Roe that viability - at whatever stage in the pregnancy this
applies - marks the earliest point in which the state's interest in fetal
development is sufficient to justify a legislative ban on abortion.lo8
Additionally, the Court was much concerned that overruling Roe's
central finding, in addition to being contrary to the doctrine of stare decisis,
would also weaken the Court's authority to exercise judicial power and
function as a supreme court of the land. Afier all, the Court's authority
depends greatly on its reputation for fairness and consistency. Decisions
like Roe, said the judges, are entitled to a strong and effective use of the
doctrine of precedence to counter the resistance to implementati~n.'~~
Overturning the central ideas found in Roe would result in a great loss of
confidence and unnecessarily damage the Court's reputation.
The judges then announced a number of guiding principles that
should control their assessment of the Pennsylvania statute. They are: 1.
To protect the central liberty rights recognized by Roe and at the same
time to accommodate the state's compelling interest in protecting potential
life, an undue burden standard should be employed.lI0 An undue burden
exists and is an invalid law, if its purpose or effect is to place substantial
obstacles in the path of a woman seeking an abortion before her fetus
attains viability."' 2. The Court rejected Roe's rigid trimester frame-
work."' It declared that the state might take reasonable measures to insure
that the woman's choice about whether to have an abortion is informed.l13
Measures, h~wever, designed to advance this informed choice interest
should not be invalidated when their purpose is to persuade the woman to
choose childbirth over abortion."'
3. Finally, the government may
attempt to further the health and safety of a woman seeking an abortion
104. Id. at 856.
105. Id. at 860.
107. Id. at 861.
108. Id. at 860.
109. Id. at 865.
110. Id. at 878.
111. Id. at 870.
112. Id. at 878.
Appalachian Journal of Ldw
but may not impose health regulations that present a substantial obstacle to
the woman's ability to obtain an abortion.Il5 4. Adoption of any of these
broad standards does not overrule Roe's critical holding that a state may
not prohibit any woman from malung the ultimate decision to terminate
her pregnancy prior to the potential life's viability.Il6 Finally, it was
decided that the government may regulate or proscribe, but only after via-
bility has been reached."'
The majority then applied this reasoning to the Pennsylvania law.
First, the High Court determined that the state's medical emergency defi-
nition, intended to assure compliance with the abortion regulations, would
not in any way impose a threat to a woman's life or health."' Conse-
quently, it does not violate the essential holdings of Roe. Second, the hus-
band notification provision constitutes an undue burden of the woman's
interest in an abortion and is therefore invalid.l19 The Court was clearly
concerned that a number of women might be prevented from obtaining an
abortion because of this provision. The judiciary was not convinced that
the father's interest in the fetal welfare was equal to the mother's protected
liberty interest.''' Obviously, the state regulation with respect to the fetus
will have a greater impact on the pregnant woman's body than it will on
The Court also found the state's informed consent provision that
required consultation before the procedure was not an undue burden on
the woman's right to terminate a pregnancy.121 It said that requiring the
woman be informed of the availability of information relating to the con-
sequences to the fetus does not interfere with her constitutional right of
privacy and does not override her right to an ab0rti0n.l~~
Despite the controversy surrounding the implementation of Roe, the
Court was firmly convinced that it was in the continuing national interest
to uphold the core values of that opinion. As previously indicated, those
core values are embedded in the "liberty" interest found within the Four-
116. Id. at 879.
118. Id. at 880.
119. Id. at 895.
120. Id. at 881.
121. Id. at 883. On this issue the High Court on February 24, 2003, refused to hear the
appeal of a 7th Circuit decision which held that a requirement that a woman get face to
face counseling at least 18 hours prior to obtaining an abortion was constitutional and did
not unreasonably interfere with her liberty interest in an abortion. A lower court had
found that about ten percent of women who received counseling changed their mind about
getting an abortion. See, A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d
684 (2002), cert. denied, A Woman's Choice-East Side Women's Clinic v. Brizxi, 537 U.S. 1192
Compromising the Uncompromisable
teenth Amendment. The reference to a liberty interest is important but
generally ignored. It indicates that the majority did not rest their decision
solely on the right of privacy, which requires a balancing of interests.
Instead it rested on "liberty" that is specifically mentioned in our constitu-
tion. Liberty interests of the individual are presumed constitutional, and
the burden is on the government. The government bears the burden of
proving the necessity of restricting a liberty interest. This was recognized
by the Casey opinion by the quote, "Neither the Bill of Rights nor the
specific practices of states at the time of the adoption of the Fourteenth
Amendment marks the outer limits of the substantive sphere of liberty
which the Fourteenth Amendment protects. See U.S. Const., Amend.
Why is our reliance on a liberty interest wise? Because that appears
to be the way of the Supreme Court. In Lawrence v.
nedy's opinion concerning the conduct of two gay men in their own
home is based on "liberty" not privacy. He begins:
Liberty protects the person from unwarranted governmental
intrusions into a dwelling or other private places. In our tra-
dition the state is not omnipresent in the home. And there
are other spheres of our lives and existence, outside the
home, where the state should not be a dominant presence.
Freedom extends beyond spatial bounds. Liberty presumes
an autonomy of self that includes freedom of thought, belief,
expression, and certain intiinate conduct. The instant case
involves liberty of the person both in its spatial and transcen-
Clearly Justice Kennedy has shifted the burden of proof If liberty is
the issue, the government is compelled to justify any restriction of the
individual's liberty as necessary. If privacy is the issue, the burden is on the
individual to show that the right of privacy being exercised is somehow a
fundamental right. This is not to say that the government may never
restrict liberty. Surely, behavior that is violent to the rights of others may
be prohibited without violating liberty rights. This is why it is so neces-
sary to properly define the status of fetus or unborn child. Is it not reason-
able to suppose that among those other spheres of liberty referred to by
Justice Kennedy is the abortion decision and the liberty interests of the
mother and the fetus? This we attempt.
Having explored the current legal status of the issue of abortion, we
now turn to a compromise for the seemingly uncompromisable conflict
that daily rages between fierce, and often violent, anti-abortion critics of
123. Id. at 848.
124. 539 U.S. 558 (2003).
125. Id. at 562.
14 Appalachian Journal of Law
Roe v. Wade like Operation Rescue and the pro-choice forces of groups
such as Planned Parenthood.
TO THE COMPROMISE
There is a strong analogy between the anti-abortionists active in the
modern era and the abolitioni~tsl~~ who tried to end slavery in the pre-
Civil War1" period. Each attempts (attempted) to safeguard the well-being
and even the very lives of a particularly helpless group of people.
If anything, the present day pro-life forces are in a worse position than
their nineteenth century counterparts. For one thing, the fetus is far more
helpless than was the black slave. The latter could "run away" with the
help of the Underground Railroad and other such institutions. No three-
week old fetus has the maturity to initiate or even remotely cooperate in
any such venture. True, the pro-lifers can try to convince a pregnant
woman not to abort, but in order to save the baby's life they have to con-
vince the potentially evil doer
trast, the organizers of the underground railroad did not have to convince
the masters of anything - not very likely, in any case - but only the slaves, a
far less difficult task.
Another analogy in this regard is that between abortion and the Nazi
holocaust. Both incidents are associated with massive slaughter of
innocents. If the immorality of an act is correlated with the helplessness
and innocence of the victims, then the moral outrage now directed at
Nazis might better be vented in the direction of pro-choicers. For surely
the Jews who were slaughtered, no matter how innocent of any wrong
doing themselves, were at least more responsible for their fate than the
fetuses victimized by ab0rti0n.l~~
This practice attacks the weakest and most defenseless members of
our society. It is one thing to do away with adults, as in the case of the
Jewish Holocaust, the Bosnian "ethnic cleansing," or the mass murder in
Rwanda. The suffering is pitiful, but at least for the most part the victims
not of course the fetus. In con-
126. Afgen, The Abolitionist, http://afgen.com/slavel .html, (last accessed Feb. 16, 2005);
Infoplease, Abolitionists, http://www.infoplease.com/ce6/history/A08O219O.html, (last
updated Feb. 16, 2005).
127. Strictly speaking, a "Civil War" is conducted between two contendmg forces, each
of whom wishes to rule the entire country. A more accurate description of the
conflagration of 1861-1865 would thus be "War between the States." Pejoratives on the
other side of this debate are "War of Northern Aggression" and "First War of Southern
Secession." For intellectual support of the latter two see Thomas DiLorenzo, The Real
Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Un~zecessary War (Random H. &
Hurnnlel 2002); Jeffrey Rogers, Emancipating Slaves, Enslaving Free Men: A History of the
Arnerican Civil War (Open Ct. 1996).
128. Who, by analogy now takes on the position of the slave master, not the slave.
129. This is meant not to "blame the victims" of the holocaust, but to underscore the
even greater blamelessness, or, better, helplessness, of the fetus.
Compromising the Uncompromisable
were adults. In the event, they were unable to protect themselves against
their enemies. But they had this option, at least theoretically.
The only group of sufferers whose plight even remotely approaches
that of the fetus is the abused (small) child. This is surely one of the most
pitiful sets of victims, but even they, in contrast, have had some years of
life. The fetus stands alone, even compared to these other unfortunate^."^
It is for this reason we maintain that abortion is an abomination. It is
a massive killer. More people13' die annually as a result of it (1,591,000)
than perish from heart disease (720,058), cancer (505,322), stroke
(144,088), or all accidents (91,983)
occurs in these cases because of the purposeful action of other people.133
There is another parallel between the position occupied by the pro-
lifers in the modern period and the abolitionists in the 1840s. Then, the
war that was to take place in twenty-five years hence would "solve" the
problem. But in the interim, between 1840 and 1865, the abolitionists did
what they could to bring this event about; at the very least, they prepared
the way for it on philosophical grounds.
Adding insult to injury, death
130. An anti-abortion exhibit displayed at Boise State University has drawn the ire of
Rabbi Daniel B. Fink, of the Ahavath Beth Israel synagogue in Boise, Idaho. The
presentation features three horrific pictures, one of Jewish victims of the Nazi holocaust, a
second one of a black man being lynched, presumably by the KKK, and the third of an
aborted fetus. The first is labeled as "Ungentile," the second as "Unwhite," and third as
"Unborn." Rabbi Fink objects on the ground that this depiction is "racist, anti-Semitic,"
and "exploitative" (see Richard Morgan, Sense and Censorship, The Chronicles of Higher
Education A6 (Apr. 12, 2002)). He opposes the equation of these three sorry episodes in
human history. We, too, object; but likely for reasons opposite to his. In our view, what
we do to very young human beings is far worse than what we do to either of these two
other groups of people, and thus should not be equated with them. And this for two
reasons: one, fetuses are more helpless than either Jews or blacks; two, far more of them
have been murdered. Lynched blacks number "only" in the thousands. There were "only"
six million Jews who perished in the holocaust. But, given that somewhat more than 1.5
million fetuses are killed every year in the U.S. alone, ic takes only four short years co reach
totals attained by the Nazis regarding the Jews.
131. For the purpose of this article, fetuses are counted as people. Reasons are given for
this stance below.
132. Source Statistical Abstract of the United States, 1993; table #128, page 93 for heart
disease, cancer, stroke and accidents in 1990. Data for abortion from tables #112, 113,
page 83 in 1988. The Canadian death figures for 1991 are as follows: abortion, 70,463,
circulatory system illnessess, 75,089, cancer 52,425, respiratory ailments, 16,272, accidents
and adverse effects, 12,057 (Canada Yearbook, 1994, table #4.4 page 149), abortion 70,463
(Statistics Canada: Therapeutic Abortions, 1991, 82-219). Thus, abortion is the leading cause
of death in the U.S. and the second leadng cause in Canada. For illore statistical data on
the number of abortions conducted in the U.S., see http://www.abortiontv.com/Abortion
(accessed on 3/6/03)
133. Further, baby murder leads to a callous indfference to all life. A society which treats
the least of us in so cavalier a fashion tends to find it easier to do away with older people
against their will as well. A l l of life becomes cheaper.
16 Appalachian Journal of Latv
In the present case, it is the contention of this article, new medical
technology will "solve" the abortion problem. But this wdl obtain only if
pro-lifers borrow a leaf from their abolitionist forebears. That is, they must
work morally and philosophically to pave the way for this eventuality. The
thesis of the present article is that, on a pragmatic level, the only way to
resolve this vexing question, in a way that will satisfy both sides - at least
partially - is to rely on new medical te~hnology.'~' These breakthroughs
will, hopefully, allow the pregnant woman who wishes to exercise her
rights to free choice one additional option: to rid herself of the burden of
bearing the fetus without endangering its life. This is not a pipedream
because research in this area is proceeding apace. According to a report in
The New Republic, scientists are perfecting a process called "ectogenesis"
that allows a fetus to gestate in an artificial womb, separate from its biolog-
However, just because aborting the fetus is abominable, it does not
follow that it should be prohibited by law. Under a just e.g., libertarian
law code,*36 there are numerous despicable acts, which are not legally pro-
scribed, since they do not constitute "invasions" or "border crossings."
Abortion falls into this category. It is a failure to come to the aid of or an
un-milli~igness to become a "good Samaritan." The woman who ref~lses to
carry her fetus to term is in exactly the same position as a person who
refuses to rescue a drowning swimmer. Abortion is not, in and of itself, an
act invasive of other people or their property rights, even when fetuses are
There is perhaps no more intractable dilemma facing us today than
abortion. Not since pre-civil war days has our country been so divided
over a moral issue. The position adumbrated in this article, hopefully,
provides a clear way out, a compromise not otherwise obtainable.
134. ". . . the time of viability is, to a large extent, determined by the advances in
technology." James J. Mulligan, Choose L@, 59 (The Pope John 51 Center 1991).
135. See Sacha Zirnrnerman, The Future oftlze Abortion Debate, The New Republic (Aug.
18, 2003). (The article suggests that this process might be available in 5 years.)
136. Hans-Hermann Hoppe, A Uzeory of Socialism and Capitalism: Economics, Politics and
Ethics (Dordrecht, 1989); Hans-Hermann Hoppe, The Economics and Ethics of Private
Property: Studies in Political Econonzy and Philosophy (Kluwer 1993); Murray N. Rothbard,
Tlze Ethics ofliberty (Humanities Press 1982); Murray N. Rothbard, For a New Liberty: The
Libertarian Manijkto (Collier Macmillan 1973); Bruce L. Benson, The Impet~u for Recognizing
Private Property and Adopting Ethical Behavior in a Market Economy: ATatural Law Government
Law or Evolving Self Interest, 6 Rev. Austrian Econ. 43; Walter Block, Defending the
Undefendable (Fox and Wilkes 1992); Williamson N. Evers, To.tvard a rpformulation ofthe law of
contracts, 1 The J. of Libertarian Studies 3 (Winter 1977).; Wdliamson N. Evers, Social
contract: a critique, 3 The J. of Libertarian Studies 185 (Summer 1977); Tibor R. Machan,
Social Contract as a Basis ofNorms: A Critique, 7 The J. of Libertarian Studies 141 (Spring
1983); George H. Smith, William Wollaston on property rights, 2 The J. of Libertarian Studies
217 (Fall 1978).
Compromising the Uncompromisable 17
Let us begin at the beginning. At what point does human life begin?
There are really only two reasonable possibilities: at conception or at birth;
all other points of development in between are merely points along a con-
tinuum which begins and ends with these two options. At any point
before the fertilization, there is only a sperm and an egg. Neither, without
the other, is capable of developing into anything else, let alone anything
human.13' But the fertilized egg most certainly wdl become a human
being, if kept in the womb for nine months.'38 At any point after birth,
there is similarly no question: if a baby is not a human being, then no one
So which is it? Does life begin at the beginning point of this nine-
month continuum or at the end of it? We take the former position. We
maintain that the fetus is an alive human being from day one onward, with
all the rights pertaining to any other member of the species.139
We take this position for two reasons. First, if not interfered with,
without any further effort, the fetus is already on its way to human status.
Surely an entity, which after a nine month "sleep" will wake up as a
human being, has already attained that status. Consider the alternative.
Here, the fetus of thirty-five weeks and several days, although viable
outside the womb in virtually all cases given present technology, has no
rights at all. It can be lulled with legal impunity. It will be a fully rights
bearing baby in a mere matter of hours, and yet now it can be "&sposed
of." Compare two entities, assuming that this was technologically possible:
one, the new-born babe, stdl attached to its umbilical chord, a few seconds
old. The other, its sibling, is still in the womb but due out in a matter of
minutes. No two entities could be more alike, biologically, spiritually, or
in any other way. Yet, in the "pro-choice" philosophy, it would be mur-
der to kill the one and a matter of complete judicial irrelevance to kill the
other. Surely, this is a travesty not only of justice but also of common
The second reason is a logical - rhetorical - pedagogical one. Para-
doxically, considering the foregoing, we shall be defending the "pro-
choice" position. It behooves us, then, to place every obstacle in our own
way lest we become involved in a process of demolishing straw men. That
is, given it is our view that a woman has a right to rid herself of the fetus at
137. When, and if, parthenogenesis ever develops for the human egg, or sperm, this
statement will have to be reexamined.
138. With the advanced technology that the next few decades are sure to bring, it d
possible for the fertilized egg to develop outside the womb as well: in the laboratory, in a
host mother, etc.
139. Steven Luper, Invt.tlnerability: On Securing Happiness, 106 (Open Ct. 1996), states:
"Of course, it does not follow that the death of a fetus is unfortunate. For that conclusion
we would need to assume that fetuses are selves." This is perhaps one of the most extreme
articulations of the pro-choice view.
140. Contrast this with the case of partial birth abortions.
Appalachian Journal of Law
any point in this process, for any reason deemed sufficient by herself alone,
matters would be far too easy for us if human life began only at birth. For
then the decision to terminate the pregnancy would be non-debatable.
However, if we can show, as we intend to do, that it would be licit for her
to end the pregnancy even given that the fetus has all human rights, the
analysis would be the more logically robust.
Since we end up taking a "free choice" position, in order to make
our case as difficult for ourselves as possible, we begin by conceding to the
anti-abortionist side that human life begins in the very early stages of preg-
nancy'" and not after birth.14' Given this, how can we defend the
mother's right to klll the fetus?
Simple. She owns her own body, and the unwanted fetus growing
within it is in effect a trespasser or parasite. This may sound harsh, but
when the property rights in question are thoroughly analyzed, it is the
only possible conclusion that may be reached. To see this point, consider
the following case:
Suppose one day you wake up to find yourself attached to another
person, e.g., Thomp~on's"~ by now famous violinist, through your kid-
neys. You have two healthy organs, and the other person has none that are
functioning. During the night, while you slept, doctors performed an
operation connecting that person to your ludneys through a sort of umbili-
cal chord, and there you lie. This operation was conducted without the
permission or even knowledge of either "patient."
What rights and obligations do you have with regard to this violinist?
First, let us stipulate that the person in question is a complete innocent.
Last night he was in a hospital bed; this morning he woke up in your bed
attached to you. He is not a rapist. You were "raped," but this was not
done by your bedmate; instead, it was the act of evil doctors who have
since vanished fiom the scene. What you are confronted with is the result
of the rape, namely, this person lying in bed with you attached to your
kidneys1" completely dependent upon you for his life.
141. Actually, with the fertdized egg.
142. Judith Jarvis Thompson, A Defense $Abortion, 1 Phil. and Pub. Affairs 47 (1971),
(reprinted in Moral problems (Tames Rachels, ed., 2d ed., Harper and Row, 1975)), seems
ambivalent as to whether "a line can be drawn" between the human and the non human
being. Roger Wertheimer, Understanding the Abortion Argument, 1 Phil. and Pub. Affairs 69
(1971), makes this question a central focus of his analysis.
143. Judith Jarvis Thompson, Rights, Restitution and Risk (Harvard U. Press 1986); Judith
Jarvis Thompson, The Realm of Bights (Harvard U. Press, 1990).
144. For the argument in favor of legalizing markets in used body parts, see generally A. F.
Adams, A. H. Barnett, & D. L. Kaserman, Markets of Organs: "The Question o f Supply, 17
Contemporary Econ. Policy 147 (Apr. 1999); W. L. Anderson & A. H. Barnett, Waiting
for Tudnsplants, 17 The Free Mkt. 1 (1999); A. H. Barnett, T. R. Beard & D. L. Kaserman,
The Medical Community's Oppositiotz to Orgarz Markers: Ethics or Economics?, 8 Rev. ofindus.
Org. 669 (1993); A. H. Barnett, R. D. Blair & D. L. Kaserman, Improving Organ Donations:
Compvomising the Uncomp~omisable 19
What can you do with this person? Suppose he goes back to sleep
and is thus totally helpless. Can you just slit his throat? That would be
murder and must therefore be opposed.145 Killing him is aggressive; it con-
stitutes initiatory violence. Even if you can get away with it on practical
grounds, it should certainly not be allowed on the basis of legal principles.
What can you do? Do you have to let him stay attached for nine
months or for any particular length of time? Instead of slitting his throat,
can you sever the connection between the two of you - which would also
cause his death? If you did that, you would still be guilty of the initiation
of coercion, surely a crime, specifically, murder. What you must do is
notifj somebody - the association "Friends of Kidney Victims" or a hospi-
tal or the Salvation Army or the Church and have them sever the connec-
tion between you two, without thereby lulling this dependant.
If a parent abandons a newborn in the woods or shoves a five-year-old
out into a blizzard, he is doing something akin to that of slitting the chord
between you and the kidney victim who is attached to you. It is incum-
bent upon the individual to at least make a phone call to an orphanage, or
Compensation I/ersus Markets, 29 Inquiry 372 (Fall 1992); A. H. Barnett, & D. L. Kaserman,
The 'Rush to Transplant' and Organ Shortages, 33 Econ. Inquiry 506 (July 1995); W. Barnett
11, The Market in Used Human Body Parts, 6 The Free Mkt 5 (1988); Wdiarn Barnett &
Michael Saliba, A Free Market for Kidneys: Options, Futures, Forward and Spot, -
Fin -, (forthcoming); W Barnett, 11, M. Saliba & D. Walker, A Free Market in Kidneys:
Eficient and Equitable, 5 The Indep. Rev. 373 (2001); D. Barney Jr. & L. Reynolds, An
Economic analysis of Transplant Organs, 17 A. Econ. J. 12 (September 1989); R. D. Blair & D.
L. Kaserman, The Economics and Ethics of Alternative Cadaveric Otgan Procurement Policies, 8
Yale J. on Reg. 403 (1991); W. Block, The Case for a Free Market in Body Parts, 6 The Free
Mkt. 3 (1988); Walter Block, Roy Whitehead, Clint Johnson, Mana Davidson, Alan White
& Stacy Chandler, Human Organ Eatasplantation: Economic and Legal Issues, 3 Quinnipiac
Health L.J. 87, (1999-2000); A. L.Caplan,, If1 Were a Rich Man Could I Buy a Pancreas? And
Other Essays on the Ethics oJrHeaEth Care. (Ind U. Press 1992); C. T. Cal3stroin & C. D.
Rollow, The Rationing of Transplantable Organs: A Troubled Lineup, 17 Cato J. 163 (Fall
1997); W. DeJong, J. Drachman, S. L. Gortmaker, et al, Options for Increasing Organ
Donations: The Potential Role for Financial Incentives, Standardized Hospital Procedures, and
Public Education to Promote Family Discussion, 73 The Milbank Q. 463 (1995); H. Hansmann,
The Econonzics and Ethics ofMarkets for Human Organs, J. Health, Pol., and Policy and L. 57
(Spring 1989); D. L.Kaserman & A. H. Barnett, An Economic Analysis of Transplant Organs:
A Comment and Extension, 19 A. Econ. J. 57 (June 1991); Dennis Prince, Organ for Sale-
Not TWurlitzer, http://www.auctionwatch.com/awdaily/dailynews/ -090399ht (1999) ;
J. R. kchards, Neplzrarious Goings On: Kidney Sales and Moral Arguments, 21 J. of Medicine
and Philosophy 375 (August 1996); S. Rottenberg, The Production and Exchange of Used
Body Parts, 2 Towards Liberty 322 (1971); R. Schwindt, & A. R. Vining Pvoposal for a
Future Delivery Market for Transplant Organs, 11 J. Health Policy and L. 483 (Fall 1986); A.
R. Vining, & R. Schwindt, Have a Heart: Increasing the Supply of Transplant Organs for Infants
and Children, 7 J. Policy Analysis and Mgt. 706 (1988).
145. Christine Overall, Ethics and Human Reproduction: A Feminist Analysis (Allen and
Unwin 1987), reaches a similar conclusion.
Appalachian Journal of Law
put the child on the proverbial Church steps,146 or be in touch with
whatever organization functions in this capacity in any given society. It is
only if no help is forthcoming from any such quarter that these actions can
possibly not be interpreted as murder.
This case is not analogous to the one where an individual is invited
on an airplane trip, and then halfway, while he is up in the air, the owner
states that the invitation was only for fifteen minutes and that the time is
now up . . . so stop trespassing and leave forthwith, sans parachute. There
is an implicit contract in force in that instance.14' In contrast, there can be
no such contract in the case of pregnancy, at the very least because there is
simply no child to have a contract with at the point of intercourse when
the child is created."* The fetus does not yet exist, and even when it does,
it is impossible to have a contract (implicit or otherwise) with a one-week-
Consider another mental experiment. It is one hundred years in the
future. With modern technology it is possible to take a fetus at any stage
of development out of the womb and place it in a test tube or a host
mother or in some other way for the mother to abandon the fetus without
lulling or even harming it in the least. Suppose that under these circum-
stances a woman had an abortion - that is, she refused to notify anyone or
used the "Church steps"li0 - when she could as easily have saved the life of
this fetus by engaging in this modern technology. Under these conditions,
the individual would be guilty of an initiatory aggressive act that would
certainly be contrary to all known principles of law. Under these assump-
tions, one would have to evict the fetus, not abort it.
146. We consider below whether, and if so to what extent, this requirement is
inconsistent with the libertarian proscription against positive obligations.
147. One must of course tread carefully through the minefield of implicit contracts, but it
would appear that here we have a paradigm case of this type of "agreement." Surely no
one would ever enter an airplane (or a car, train, etc.) if he were liable to be pushed out
while at full speed.
148. We abstract from the possibility of the mother having a contract with the father to
raise the child.
149. One could of course have an obligation to a small child, but cannot be bound by an
implicit contract to such a person. This is because explicit contracts with babies (without
parent or guardian consent) are impermissible, and an implicit contract is merely the
embodiment of an explicit one.
150. There is an episode of the television show M*A*S*H where Hawkeye and Fr.
Mulcahy brought a baby born to a Korean woman but fathered by an American G.I. to a
monastery-orphanage for safekeeping since no one else would care for it. We owe this
example to Hannah Block.
Compromising the Uncomp~omisable
The word "abort" is used in different ways. It is absolutely crucial
that a distinction be made between lulling and eviction.I5l This future
technology would allow the individual to do the one without the other. If
and when it becomes possible, the individual would have an obligation,
similar to the one owed to the person you woke up in bed with in the
attached kidney case, not to kdl but merely to evict.152 If this were not
done, it would be similar to abandoning the baby in the woods.
From these examples is derived the principle that when one evicts a
trespasser, or deals with any other violator of rights, one is obliged to do so
in a certain way; it must be done in the least invasive manner possible
consistent with upholding property rights. If a trespasser is on your lawn
and you have a bazooka, you are not entitled to blow him away - not as a
151. Not every analyst of abortion seems aware of this distinction. Those who have
utilized it include: Robert A. Frietas Jr., Fetal Adoption: A Technological Solution to the
Problem of Abortion Ethics, The Humanist 22 (May/June 1980); Raymond N. Herbenick,
Remarks on Abortion, Abandonment and Adoption Opportunities, 5 Phil. and Pub. Affairs 98
(1975); John Morreall, Of Marsupials and Men: A Thought Experiment on Abortion, 37
Dialogos 16 (1981); Susan T. Nicholson, The Roman Catholic Doctrine of TIzerapeutic
Abortion, Feminism and Phil. 392 (Nary Vetterling-Braqgin, Frederick A. Elliston, & Jane
English eds., Littlefield, Adams, 1978); Christine Overall, Ethics and Human Reproduction: A
Feminist Analysis (Allen and Unwin, 1987); Ellen Frankel Paul & Jeffrey Paul, SeLf
Ownership, Abortion and Infanticide, 5 J. Med. Ethics 134 (1979); Murray N. Rothbard, For a
New Liberty: The Libertarian Man$sto
108 (Collier Macmillan 1973); Judith Jarvis
Thompson, A Defense ofAbortion, 1 Phil. and Pub. Mairs 47 (reprinted in Moral problems
(James Rachels, ed., 2d ed. Harper and Row 1975)); Daniel I.Wikler, Ought We to Save
Aborted Fetuses? 90 Ethcs 64 (1973); Walter Block, Abortion, Woman and Fetus: Rkhts in
Conflict?, Reason 18 (April 1978).
Steven L Ross., Abortion and the Death of the Fetus, 11 Phil. and Pub. Affairs 232
(1982), offers somewhat awkward subscript nomenclature for this distinction. His
"abortionl" depicts the case "where the pregnancy but not the life of the fetus would be
ended." This is what we have been calling "eviction." His "abortion2" refers to the case
"where the fetus would be killed despite the fact that this was not at all necessary to our
accomplishing (abortionl)." This, we would characterize as out and out murder. Ross'
"abortion" refers to "current practice, where separation and death occur more or less
simultaneously." This is the complex, two stage affair of eviction plus killing to which we
refer as plain "abortion."
Abortion has been defined as "the removal of a non-viable fetus from the uterus; or,
the killing and removal but non killing of a viable fetus" Mulligan, Choose L$ at 353.
What about removal but non-killing of a viable fetus? That is eviction.
See generally John Hart Ely, The Wages of Crying Wop A Comment on Roe v. Wade, 82
Yale L.J. 920, 935 (1973); Richard A. Epstein, Substarztive Due Process by Any Other Name:
TIze Abortion Cases, The Supreme Court Review 1973 (Phillip B. Kurland, et. al., eds. U.
of Chicago Press 1974); Joel Feinberg, Matters o f Lije and Death: New Introductory Essays in
Moral Philosophy (Tom Regan ed., Random H. 1981); Lawrence Tribe, Abortion: The Clash
ofAbsolutes (W.W. Norton 1990).
152. We assume, in order to strengthen the analogy, that "modern technology" would
allow you to detach yourself from the kidney victim without killing him.
Appalachian Journal of Law
first step in any case. That is far too extreme and incompatible with the
doctrine of private property rights. The homeowner has the right to make
sure that the outsider does not trespass further, but he must be evicted in
the gentlest manner possible. Suppose a viable baby was removed from the
womb, and the doctor lulled it afterward.Ii3 It seems crystal clear that
would be first-degree, premeditated murder and ought to be dealt with
accordingly. It is an understatement of the highest order to say that this is
hardly the gentlest manner possible.
Whether or not it can be argued that this level of technology exists
now or for what term of the pregnancy is unimportant. One hundred
years ago there was no question of any such technology. At that time the
question arose, "Does the individual have to carry this perhaps unwanted
visitor that was not contracted for to a term of nine months?" Based on
the private property rights philosophy, the individual then had the right to
evict the trespasser in the most gentle manner possible. If there was no
gentle manner feasible, an individual's property rights to her womb tran-
scend the so-called "right to life" of anyone else. No one has a "right to
Individuals only have a right not to be aggressed against. The fetus is
not being aggressed against by eviction from a woman's womb, which is
her property; that is, this "facility" is owned by the woman not the fetus.
On the contrary, the fetus aggressor, albeit not purposefully, is the initiator
All fetuses have equal rights. They are all equally innocent. Consider
those who are created as the result of rape. Clearly, here, there was no
agreement or consent or invitation between the mother and the baby. But
such a fetus is stdl a trespasser; it is in effect a parasite to the woman who
does not want that fetus in her body. She has a right to evict it.
The private property rights position on this issue is thus a moderate
one. Pro-abortion radical feminists and others who think they have a right
to kdl fetuses, even if it is possible to evict them without harm, represent
one extremeii5 in this debate. They hold the view that it is the pregnant
woman's right to determine whether or not that fetus will live. Nor does
153. Partial birth abortions consist of allowing the baby's head to protrude, but then to
k i l l it by removing its brains with suction.
154. That would imply positive rights. Others would have an obligation to help. For a
libertarian critique of this Good Samaritan or brother's keepers' philosophy, see Hans-
Hermann Hoppe, A Theory of Socialism and Capitalisnz: Econornics, Pol. and Ethics
(Dordrecht 1989); Hans-Hermann Hoppe, The Economics and Ethics of Private Property:
Studies in Political Econovrzy and Philosophy (Kluwer 1993); Murray N. Rothbard, The Ethics
ofLiberty (Humanities Press 1982); Murray N. Rothbard, For a New Liberty: The Libertarian
Manfesto (Collier Macmillan 1973); Robert Nozick, Anarchy, State, and Utopia (Basic
155. Steven L Ross., Abortion and the Deatlz of the Fetus, 11 Phil. and Pub. Affairs 232
Compromising the Uncompromisable
this apply only in the case of rape. This position defends a woman's choice
to abort when intercourse for the purpose of procreation occurs volunta-
rily, but later on she decides not to carry the baby to term. Women have a
right to lull their unborn children, even if medical technology exists which
would save it, in this view.
On the other side of the spectrum are the anti-abortionists, who
would violate the woman's right to her own body to the extent of insisting
that a trespasser, a parasite, be allowed to remain there for nine months
This position is also unjustified, from a libertarian point of view. The
position herein advocated is to allow for eviction, not killing; it does not
support trespassers "rights" over those of the legitimate owner of the
maternal property in question.
Causation is not directly a legal concern. The law is a normative
science; causation is at most an element in a positive science. It is a cate-
gory mistake to connate causation and rights violations. We are not now
involved with positive causality, only with normative rights violations. All
sorts of harm are caused by people, and these actions would not be pro-
scribed because they are all well within our rights. Certainly, in the case
of rape there is no such cause. The woman is a totally innocent victim.
She did not cause that baby to come into being. The reason that fetus
came into being was "caused" by the rapist. The key is not causation.
Our perspective does not deal with cause but rather with rights violations.
The key is not who caused the death, it is rather who violated the rights of
the individual. Rights are not violated by evicting a parasite or trespasser.
The bottom line, here, is the question of legality: under what condi-
tions is it justified to use force? In our own personal view, abortion is an
evil; we oppose it. It would be nice if all women carried babies to term,
and that as a result there were fewer, or better yet, no people killed in this
mariner. We are pro-people. ' & k also oppose drugs, alcohol, cigarette
smolung, and chocolate eating. We try hard not to do any of these things.
However, we would not impose a penalty on ourselves or anyone else for
engaging in these actions. It is the same with abortion. The real question
is, "What penalties should be imposed for engaging in this practice?" not
whether or not it is virtuous or moral to indulge in them.
The anti-abortionist position, to be logically consistent, would have
to hold this action as premeditated, first-degree murder. If the death pen-
alty is justified in any case, it is justified in this one. It should apply to the
woman who gets an abortion and to the doctor or whoever performs it. If
that kind of penalty is not imposed, there is an inconsistency that is incom-
156. Doris Gordon, Abortion and Rights: Applying Libertarian Pyinciples Correctly, 1 Stud. in
Prolife Feminism 121 (spring 1995).
24 Appalachian Journal of Ldw
patible with just principles of law. The logic of the premises is not being
The position put forth here, in contrast, is one of eviction not of
hlling. However, if the only way to evict is by killing the fetus, then the
woman's right to her property - that is, her womb - must be held above
the valuable life of the fetus. At least in cases of rape, it is clear that the
fetus is a trespasser and a parasite. This, then, is true in every case because
all fetuses have the same rights.
Let us put this in other words. Must A agree to stay attached to B,
who has no functioning kidney, for the rest of his life? Hardly. Individual
B is a parasite, no matter how personally innocent. Must A agree to main-
tain this bizarre experiment for nine months, if that is how long it wdl take
to uncover a new donor for B? Not at all. Any such requirement would
entail slavery of A, for whatever the duration.
Nor, at the other extreme, may A simply haul off and shoot B to
death. The latter is not guilty of any wrongdoing. Our theory would
require that A detach himself from B in the gentlest manner possible, so as
to give him the best chance for survival. This would entail, presumably, a
visit to the hospital that very day, where they could be surgically discon-
nected, and the status quo ante achieved.
If this discussion is correct, we deduce that the pregnant woman may
remove the fetus from her body in a manner that does the least harm to it
possible. That is, she may evict but not kill it. True, one hundred years
ago the only way to rid herself of the unborn human within her would
have been to put it to death; one hundred years from now, it will presuma-
bly be possible to transfer it to a test tube or a host mother without dis-
turbing it in the slightest.
At present, however, this policy prescription serves as a true compro-
mise between the pro-choice and pro-life camps. The former gains half a
victory: the woman may rid herself of the fetus, as is desired by the pro-
choicers, but they will be disappointed in that she does not also have the
right to kill it. Likewise, the latter also comes away with half a loaf; this
side of the debate welcomes the fact that the baby will live, even if they
cannot, under the compromise, force the biological mother to bear the
child, as they would wish.
This compromise, or eviction position, is a true intermediary
between the two more well-known abortion theories, pro-life and pro-
choice. It and it alone can be justified; the others cannot.
The key to the solution is to focus on the private property rights in
question. In this case, it is the mother's womb; given that the fetus is
unwanted, it is in effect a trespasser or a parasite. The mother, then, has a
right to evict it -in the gentlest manner possible - but not to Kil it.
Compromising the Uncomprornisable
One hundred years ago, ths would not have had much practical
import; eviction necessarily meant kdling. One hundred years from now,
presumably, we wdl have the medical technology necessary to preserve the
life of the fetus outside the natural mothers' womb during any stage in its
development (whether in a test tube or in the womb of a host mother,
etc.) Right now, medical technology can preserve the lives of some
evicted fetuses but not all. This factor alone would render evictionism a
But there are various other dimensions to it. These may best be
brought out with the help of the following chart, which depicts three pos-
sible answers to a series of important questions, not merely two, as is usu-
(pro property rights)
1. Is the mother compelled to bring the fetus to term; that is, to
carry it for nine months?
A. no B. no C. yes
2. Can the mother evict the fetus from her womb?
A. yes B. yes C. no
3. Can the mother kill the fetus? (Would that new pill - RU 486 -
which kills and then flushes out the fetus, be legal?)
A. yes B. no C. no
4. Given century old technology, can the mother unilaterally deter-
mine that the fetus shall die?
13. yes C. no
5. Given present technology, can the mother unilaterally determine
that the fetus shall die?
A. yes B. sollietimes C. no
6. Given future technology, can the mother unilaterally determine
that the fetus shall die?
A. yes B. no C. no
Pundits, editorialists, moralists, lawyers, judges, and advocacy groups
have all been arguing over co1umn.s one and three. They ignore column
two, which is a principled compromise that contains at least a potential
solution to this seemingly intractable problem.
Appalachian Journal of Law
Evictionism also solves the challenge of anti-girl baby abortions. In
China, India, and elsewhere, cultural phenomena influence women to
abort baby girls in favor of their male counterparts. There are many diffi-
culties in this arena, where modern leftist radical15' feminism meets ancient
culture and Malthu~ian'~~
over populationist hysteria. Left feminists urge
that women be free to choose whether to abort or not. Heavily populated
countries such as China have instituted laws, which mandate the maxi-
mum number of children each mother may bear (typically, one). As a
result, women in these third world societies have been making decisions all
right but not in the direction presumably favored by Marxist feminists; to
wit, they have been choosing to kill almost exclusively their baby girls.
There are numerous problems here apart from the sheer human trag-
edy of massive murder of the innocents involved in all abortions. For one
thing, the radical feminists seem to have been hoisted by their own
petard.'j9 They have championed "choice" in these matters, and the deci-
sion of women has been, if anything, the exact opposite of what they
would have asked of these women, had they been able to make that choice
Another predicament has to do with sociobiology.161 Females, not
males, are the limiting factor in population
that the farmer keeps twenty-five cows and one bull, not the reverse. Any
It is for this reason
157. There is no reason to allow socialist women's organizations to co-opt the honorific
"feminism." On the contrary, there are also feminists of almost diametric opposite
viewpoints. See Wendy McElroy, A Site for Individualist Feminism and Individualist
Anarchism, http://zetetics.com/mac/ (Last updated Feb. 16, 2005); Joan Kennedy Taylor,
Reclaiming the Mainstream: Individualist Feminism Rediscovered (Prometheus 1992).
158. Paul Ehrlich, The Population Bomb (Sierra Club- Ballantine 1968); A1 Gore, Earth in
the Balance: Ecology and the Human Spirit (Houghton-Mifnin 1992).
159. There are some who would not look upon this result exactly as a "problen~." See
e.g. Michael Levin, Comparable Worth: The Feminist Road to Socialism, Commentary (Sept.
1984); Michael Levin, Feminism and Freedom (Transaction Books 1987).
160. States Christine Overall, Ethics and Human Reproduction: A Feminist Analysis, 20
(Men and Unwin, 1987), ". . . sex pre-selection based on intrinsic sex preference is always
irrational and wrong . . . except to avoid offspring with sex linked diseases."
Further, Overall, maintains that "The technology of sex pre-selection enables people,
particularly men, to act upon their biases against women; it is not an exaggeration to regard
the potential results as a form of genocide - that is, a wrongful form of sexual
discrimination that reduces the relative number of females. Id. at 31. Robyn Rowland,
Motherhood, Patriarchal Power, Alienation and the Issue of "Choice? in Sex Pre-Selection," in
Man-Made Women, 75 (Gena Corea et. al., eds., Ind. U. Press 1987), refers to sex
preselection, cloning, ectogenesis, surrogate motherhood as ". . . technology which could
mean the death of the female."
161. Edward 0.
Wilson, Sociobiology (Harvard U. Press 1980).
162. For the view that population growth is not a danger, e.g., that there is no
overpopulation threat, see Julian Simon, The Ultimate Resource (Princeton U. Press 1981);
Walter Block, Population Growth: Is it a problem? in Resolving Global Problems into the 21st
Century: How Can Science Help Proceediizgs of the Fot;rth National Conference of Canadian
Compromising the Uncomprornisable
society, then, which limits its female population, is dooming itself ulti-
mately to extinction. One reaction to this might be to adopt a "laissez-
faire" attitude of "so be it": if a group of people wishes to abort females
and thus eventually vanish, let them get on with it; they have the right to
make such choices, and if they result in the demise of their society, there
wdl be no one but themselves to blame. Possibly, long before group
extinction, it will be realized that this behavior is not exactly pro survival
and will be ended voluntarily. If so, they will endure; if not, they will not.
In either case, their fate is in their own hands.
Yet another concerns the kind of society that will be in existence
roughly twenty years after such decisions are made. It will be one with
hundreds of males for every female: surely a recipe for disaster, at least
from a social and psychological perspective.'" The result can only be mas-
sive homosexuality, or polyandry, or massive emigration, which will only
start the problem off on another round elsewhere, if these mores are car-
ried with them.
True, under evictionism, the "traditionalist" mothers would have
chosen to evict, not abort, their female children. But this gratuitous kill-
ing of girl babies would be ended, since the ones who were evicted for this
reason would grow up to be adults in any case, albeit in a test tube or host
mother, not in the pregnant wonian herself
If so, none of these difficulties would arise, not the socio-biological
ones or the social and psychological. As well, the left wing woman's
movement would be saved from an extremely embarrassing result, which,
one might reason, would make them more receptive than otherwise to
VII. PUGMATIC ISSUES
Given, then, that abortion is an
offense, what czrz he done, short of using the majesty of the law, to stop
but not legally punishable
Pugwash, 30 (CSP Publications 1989); Daniel Coffey & Walter Block, Postponing
Armageddon: Why Population Growth Isn't Out of Control, 15 Humanomics 66 (1999).
163. Sowell tells of the Japanese males who emigrated to the U.S. in the 19th century,
and were prohibited by immigration law from bringing women who might have become
their wives with them. See generally Thomas Sowell, Race and Economics (Longman 1975);
Thomas Sowell, Etlznic America (Basic Books 1981); Thomas Sowell, The Economics and
Politics of Pace: An International Perspective (Morrow 1983).
164. An argument can be made that abortion as a last resort in the case of rape or incest,
or to save the mother's life, is not immoral. But utilization of this procedure as a means of
birth control hardly qualifies. However, the fetus who is a product of rape or incest is every
bit as deserving of the right not to be aggressed against as any other fetus. Thus, abortion
in even these cases would be unjustified according to libertarian law. Eviction, of course,
would be justified for incest and rape. And the same applies to cases where the pregnant
mother's life is in danger: she may evict, but not evict and then murder, e.g., abort, unless
medical technology is not advanced far enough to distinguish between the two. In any
Appalachian Journal of Law
this monumental slaughter of human infants? Paradoxically, one must
embrace the notion of evictionism, and then count upon developing tech-
nology to save these countless baby lives.
Even on a pragmatic basis, the frontal attack on abortion simply does
not work. Anti-abortionists have long pleaded with the political process to
stop this unconscionable slaughter - all to virtually no avail.'(j5 The popu-
larity of the present law, as revealed by numerous public opinion polls,
indicates, moreover, that this state of affairs is likely to continue for the
The mistake has been to confront the problem totally and directly;
e.g., to insist upon an end to abortion. This has not worked, wlll not
work, and at least on the inoral grounds we are now defending, should not
work. All is not lost, however, in the fight to save the poor children who
have had their lives cruelly snuffed out through this process. There is an
alternative that may prove successful. (Given the vast amount of good to
be attained by saving the lives of fetuses, anything may well be better than
How will embracing the evictionism analysis help with saving pre-
cious human lives? Simple. With advanced medical technology, based on
breakthroughs which are even now almost an everyday occurrence, it is
extremely likely that a greater and greater number of fetuses will be able to
be safely transported from the (original) mother's womb to another safe
and supportive place: to a surrogate mother, to the uterus of an animal, to
a mechanical or laboratory contrivance ("test tube"), to some other alter-
native which cannot even be imagined today. Is there any doubt that this
will come to pass if it has not yet already occurred - in twenty-five, fifty, or
one hundred years from now?
What will abortion law be like on that day? If there is little or no
change from what prevails at present, the fetuses of the future wdl face the
same fate as those today, despite the advances in medical technology that
could otherwise have saved their lives.
With no distinction between eviction and abortion, and with the lat-
ter legal as it is at present, a woman who wishes to rid herself of an
unwanted pre birth child will be able to do so with impunity. Even
though there are (will be) facilities standing by which could preserve the
case, the present article is devoted not to an analysis of the moral status of abortion, but
rather concerns something very different: what the law on this issue should be from the
point of view of justice.
165. One incbcation of the fact that the anti-abortionists are losing the battle - apart from
the sheer numbers lulled - is the increasingly harsh treatment to which they are subjected
to by the law and police when they attempt to blockade and picket abortion centers. In
some jurisdictions, e.g., British Colunibia, Canada, it is now illegal for peaceful pickets to
come with several hundred feet of an abortion "clinic." This pro abortion "bubble law" is
in sharp contrast with labor legislation in the province; in that case, there are very few
limitations on picketing.
Compromising the Uncompromisable
life of her fetus, she now is and wdl continue to be under no legal compul-
sion to choose this option.
But suppose that there were a very different legal regime in operation.
How would the fetus fare under laws that prohibited abortion but allowed
eviction? On the assumption that this law was obeyed,16Qhe unborn child
would be in a far better position. For now, if its mother wanted to rid
herself of him, he would be guaranteed an alternative place of incuba-
t i ~ n . ' ~ ~ Previously, in contrast, the maternal decision to k d off her child
would have prevailed.
From a pragmatic point of view, then, "pro eviction" may well be a
better strategy than "pro-life." That is, if maximizing the number of
babies saved is the it is far more likely to be attained if the pro-life
forces throw their weight behind a law which allows eviction, than to
remain in their present path and to continue to hold out for a law which
Why is this? There are several reasons:169
1. The present tactic simply is not working. Right now, despite the
best efforts of all concerned, like it or not, the pro-choice movement has
won out. Legal abortions may now be obtained with about as much diffi-
culty as prescription drugs. Nor is the prognostication for afiy change in
the foreseeable future. According to public opinion polls, an imperfect but
not fully misleading indication of future legislative enactments, this cannot
It is a basic aphorism of life that when you are losing, it often pays to
consider a different strategy. This applies to sports, to examination taking,
to love making, to playing a musical instrument - in a word, to just about
every human endeavor imaginable. It would be amazing if one arena -
saving the lives of human infants - were an exception to this general rule.
It is time; it is long past time, that we pro-lifers at least consider the possi-
bility that there may be a different means, which is better tailored to obtain
the ultimate end - the safeguarding of innocent lives.
166. It would take us too far a-field to make any other assumption.
167. This guarantee would have to be financially supported by the pro-life community, or
through similar charitable, efforts. Based on the vociferous opposition to abortion, there
seems little doubt that this could easily be done. According to expert estimates, the black
market price for an adoption is some $25,000. There is little doubt that were this market
legalized, a lion's share of these funds would be diverted toward saving the lives of fetuses.
See generally Richard A. Posner, Ecotaomic Analysis of law, 139 (3d ed., Little Brown 1986);
Nacy C. Baker, Baby Selling: the Scandal of Blackmarket Adoptions (Vanguard Press 1978).
168. Is there any other pro life desiderata worth mentioning in the same breath? Hardly.
169. In this section we particularly ignore, for argument's sake, the moral issues. We
focus on only one question: which course of action will maximize the preservation of
human (e.g., fetal) life. Let it not be argued that this is not a worthwhile endeavor. To be
sure, morality is paramount. But such concerns should not be allowed to completely blind
us to other monumental tasks, that is, in this case, saving life.
30 Appalachian Journal o f Law
2. Evictionism is a compromise position. It lies part way between
the status quo, where babies are slaughtered with as much compunction as
we would swat a fly, and the present official goal of the pro-life movement,
which is to force allx7* pregnant women to carry their unborn child for
nine months and then deliver them.
Under evictionism, each side gets half a loaf The pro-lifers are
assured171 that fetuses are not done away with in a cavaber manner. Had
they their 'druthers, they would also insist that the natural mother bring
the baby to term after a gestation period of nine months. This, they can-
not have, under the terms of the evictionism compromise.
Similarly, the pro-choicers obtain some but not all of what they want.
They wish the mother not only the right to cut short the pregnancy term
but also to have a life and death say over the fate of the child they bear.
Under evictionism, they could only retain the former; the latter would be
denied them. That is, the mother could end the pregnancy any time she
wished,17' but once she did so, the determination of life or death for her
progeny would be out of her hands.
3. Moving from the present law of practically unlimited abortions,
to the pro-lifers' ideal of (practically) none, is an all or none proposition.
It is like betting the mortgage on one flip ofthe coin. It is an exceedingly
high-risk strategy. If it prevails, well and good.173 The pro-life community
will have attained all it wants. If the change in law fails to occur, this
movement will be pushed back to the status quo where it attains n~ither of
its two goals (e.g., saving the fetus's life, the legitimate goal, and forcing
the mother to bear the child, the illegitimate one from the libertarian
point of view). Since the lives of potentially millions of babies are at stake,
it may well prove better to adopt a more risk reducing stance: instead of
holding out for the full loaf of bread, content oneself with half a loaf, given
the greater likelihood of achieving the latter. This advice is certainly but-
tressed by past experience. Millions of dollars have been raised and spent.
The courts have pretty much concluded, at least since Roe v. Wade, that a
woman has the right to abort. Thousands of protests at abortion centers
have been held. A few abortionists have even been killed. But at least so
far, it is safe to say, the conscience of the nation has not been changed. On
the contrary, the protesters who hold the vigils are widely seen as
170. In some cases, an exception would be made for the cases of rape, incest, or to save
the mother's life.
171. This is based upon the assumption, of course, of mehcal technological availability.
172. As technology progresses, the time when eviction will be able to be completed safely
will be extended more and more; eventually, there can be little doubt, transplants of the
baby from the natural womb to a substitute will be a feasible even as late as the ninth
month, and as early as a few days after conception.
173. Well and good for the pro-lifers, that is. But not for the libertarian, for whom
evictionism is not a compromise, but rather the only system fully consistent with liberty
and human rights.
Cornp~omising the Uncompromisable
"extremists," something that does not bode well for the prospect of saving
these helpless young lives.
4. Eviction has not failed. As it happens, it has never been tried.
The main reason for this is that it is almost totally unknown as an 0pti0n.l~~
Now it may well be that ths option, too, shall fail. If so, it wlll not be the
first time in the history of the world that justice did not prevail. But
should this occur, little will have been lost. The pro-life movement will be
in no worse position, life saving wise, than now prevails. And at least we
shall have had the satisfaction of strihng out in a new ex ante promising
direction. Perhaps, out of this failure, should it indeed occur, new ideas
for subsequent attempts shall be born. But at this point in time, all this is a
bit premature. No one knows if this strategy will succeed or not. It seems
reasonable to at least give it a try, given that extant methods seem to be
running up against the proverbial brick wall.
5. Eviction, even though characterized above as constituting "only
half a loaf," is all that the pro-life position, properly construed, really
requires or is entitled to. As the very name implies, saving lives - nothing
more, nothing less - is really what the pro-life movement is all about. A l l
else, even if compatible with this end, is simply extraneous. And if incom-
patible, it must be jettisoned as not only irrelevant but as a positive danger
to the main goal.
There is simply no reason why pro-lifers should prefer the traditional
means of giving birth. They must of course oppose abortion, but for them
eviction should be a perfect substitute even for normal births. A l l that
should matter is that the fetus be safely born. If this is done the natural
way, well and good. But if this goal is achieved in any other way (e.g.,
surrogacy, etc.), it should be a matter of complete indifference to advocates
of the pro-life position. Life is life is life; where it occurs is only a matter
Even w-ere this not so, pro-lifers cannot afford to spread themselves
out too thinly. There are many good deeds simply crying out to be
accomplished. For this movement to spend any effort whatsoever on pro-
moting traditional birth methods implies just that much less can be uti-
lized on their unique mission. Actually, to do so would be a betrayal of
that philosophy. Worse, if this is done in the name of pro-life and with
financial resources donated to that specific cause, then it amounts to no less
174. See Walter Block, Abortion, Woman and Fetus: Rights iiz Conjict?, Reason 18 (April
175. We assume, needless to say, that surrogacy "housing" is not inferior to the natural
kind. Whether it is or not is an issue too far a-field to be considered here. It is also
irrelevant, given our main purpose: to shed philosophical light on the implications of a
private property rights analysis of abortion.
Appalaclzian Journal of Law
But this may be a bit of overlull. It is not clear that there is any
responsible person in the pro-life community who advocates eschewing
the main life saving mission, even in part, so as to increase the likelihood of
natural births. Again, it seems more reasonable to suppose that the reason
both goals have been pursued in the past is due to a failure to see that there
really are two separate and distinguishable elements in the demand that
abortion be stopped: normal births and live babies.
What of the argument that the best policy may be to wait to support
evictionism until the new technology lucks in? In that way the pro-life
movement can, as it were, have its cake and eat it too.
This is a problematical strategy for several reasons. One, the new
technology is already "kicking in." If ever this were a reasonable tactic, it is
no longer so. Two, why not use the extra time to organize? The other
side certainly will. Three, it wdl be a lot easier to convince people of
evictionism if advocacy of such a position is, and is widely seen to be, a
defense for its own sake rather than merely as a second best policy. Long-
term advocacy is usually more effective than being a Johnny - come -
What of the argument that anti-abortion will save lives now and for-
ever more; evictior~ =gill only save lives in the fiiture, as technology devel-
ops. Therefore, embrace anti-abortionism, not evictionism (again,
eschewing morality and focusing only on life saving). This argument, too,
is fzllacious. First, we have witnessed the utter faidre of the pro-life
movement to achieve its goals. Second, under a legal system of eviction,
the requisite technology wdl develop faster than otherwise. The anti-
abortionists will only be faced with a technical problem, not a political
one, which they have so far been losing, with no prospect of a victory in
Thus, the present stance of the pro-life forces is a highly risky one; by
keeping their heads in the sand regarding evictionism, they are endanger-
ing the lives of mlllions of babies, the very opposite of their goal. Yes, if
they win, they win right now. But if they lose, they lose forever inore or
at least as long as it takes to convince a majority of the pro-life anti-abor-
This, then, is the pragmatic case for talung on the banner of eviction-
ism, and eschewing the demand that the natural mother be forced to carry
the fetus for nine months and then give birth to it. Had the pro-lifers seen
the difference between these two very different claims say, fifty years ago,
it is just possible that many infants consigned to death today would already
be saved. That was not to be. However, if a sea change can occur today,
fetuses of the future may be spared the fate suffered by all too many at
If evictionism were tc be instituted at present, at one fell swoop one-
ninth or perhaps two-ninths of all babies would be immediately saved.
Compromising the Uncompromisable
Partial birth abortions would immediately become a thing of the past.
Moreover, within a few years, a third ninth of babies could be saved, as
medical technology is enhanced. And so on. This process would continue
until all fetuses would be kept alive.
In this section we explore the implications of the libertarian eviction
theory for several related issues and questions.
1. Suppose eviction costs more than abortion; who pays?
rf it costs more to engage in this technology, there is no positive obli-
gation for the mother to pay the extra amount. This should be done by
the Church or a group called the Friends ofBabies or some pro-life type of
group specifically set up for, and devoted to, this very purpose. However,
the individual does have the obligation to make use of such modern tech-
nology. Consider a pregnant woman who refuses to avail herself of medi-
cal breakthrough^."^ She has the right to refrain on her own accounts but
not to kill (e.g., make it impossible for someone else, with a test tube
incubator) her child.
2. Suppose eviction is more dangerous than abortion, should the
mother be forced to undergo the former procedure? No, not a bit of it.
The libertarian position is a true compromise, as it happens; some things
go one way, others things not. On this issue, the private property analysis
sides with the pro-choicers, Under libertarianism, there are no positive
obligations. Thus, the mother is only to be forced to undergo an eviction
procedure (on the assumption that she prefers aborting her child) when
there is no increase in hazard to herself
3. What should be the legal status of RU-486?
The abortion pill is known as RU-486 in France and a combination
of mifepristone and misoprostol in the U.S. But whatever its name, it has
been declared by our Food and Drug Administration to be safe, effective,
and relatively risk free. The controversy surrounding this drug, however,
arises from none of these sources. Instead, it emanates from the fact that
this drug works not by making it impossible for the egg and sperm to
come together, but, rather, by in effect killing off the fertilized egg, other-
wise known as the fetus.
Our position on this drug should by now be clear. In the past, when
fetal outplacement was impossible, the RU-486 was the most gentle (well,
no more invasive than any other form of eviction) form of ridding the
woman of an unwanted fetus. Therefore, it was justified. In the future,
when it will be technologically feasible to more gently remove the fetus
from the womb without harming it or the mother, use of this drug would
be considered murder. At the present day - is not it ever this way? - things
176. Shades of Jehovah's Witnesses.
Appalachian Journal of Law
are more complicated. Our own technological knowledge admits of no
answer to this question. But at least we have a principle to guide us
through this moral thicket: if and to the extent outward transfer is possible,
then and to that extent the drug should be prohibited for pregnant
Of course, an eviction ~1.11, not an abortion pill, would be totally
justified. That is, medicine, which results in the expelling of a healthy
fetus (able to be hosted by a surrogate), would be entirely compatible with
4. Child abuse
What about preventing the pregnant mother from the "child abuse"
of drinking wine or smoking cigarettes?
This is hard to answer, given the present medical uncertainty about
the harm committed thereby. Instead, take a more radical case,17' for
which no one can be found who would deny that the substance harms the
fetus: crack. If giving crack to an infant would amount to child abuse,
then the same conclusion must be reached for the fetus. But abuse for a
child, under libertarianism, would imply at the very least178 that the victim
be forcibly removed if by doing so the situation of the fetus would
5. Does the pregnant woman have the right to commit suicide?
In the ordinary case, the answer is clear. Since libertarianism prohib-
its only the initiation of violence against another person or his property,
and since suicide is violence against the self, not another person, this form
of killing is legally justified.179 Dr. Kevorkian would not be incarcerated in
a libertarian society.
When the pregnant woman commits suicide, however, she of course
ends the life of a person other than herself. Does this count as the initia-
tion of violence against another person? Not at all, since the fetus, as we
have seen, is the aggressor, trespassing on her property, that is, herself
In the past, when there was no possibility of preserving a fetus outside
the mother's womb, the libertarian would have placed no legal barriers in
the way of her suicide. Nowadays, of course, the position is a bit unclear.
However, in the future, when medical technology allows for eviction, the
177. Or assume for the sake of argument that for a pregnant woman to indulge in alcohol
or cigarette smoking constitutes child abuse.
178. For libertarian punishment theory in general, see Murray N. Rothbard, The Ethics o f
Liberty (Humanities Press 1982); Murray N. Rothbard, For a New Liberty: The Libertarian
Manijesto (Collier Macmillan 1973); Assessing the Criminal (Randy Barnett & John Hagel
eds., Balinger 1977). Specifically, the punishment for child abusers should be even more
severe than that accorded those who engage in such attacks upon adults, if only because of
their greater helplessness and dependency.
179. Not morally however. On this see Walter Block, Libevtarianism us. Libertinism, 11 J.
Libertarian Stud.: An Interdisciplinary Rev. 117 (1994). For an alternative anti-libertarian
view on suicide, see Milton Friedman, Say "No" to Infolerance, 4 Liberty Mag. 17 (1991).
Comp~ornising the Uncompromisabte
mother must be prevented by law f?om committing suicide before transfer-
ring her child to another host. She cannot be kept waiting, certainly not
for nine months or so. On the other hand, for reasons discussed below
under the heading of "positive obligations," she can be kept waiting for a
"reasonable" amount of time, e.g., a few hours, analogous to her duty to
inform others of a child available for adoption.
Of course, there is a distinct limit to the effectiveness of legal sanc-
tions for those who wish to commit suicide. As a practical matter, preg-
nant women in that position will presumably do exactly as they please.
But our task is to clarifjr what the law should be, and in this case it would
prohibit suicide until an eviction team can be (reasonably quickly) brought
With these remarks, we have now presented the case for evictionism,
the compromise between the pro-life (no eviction allowed) and the pro-
choice (lulling is allowed, even when not required to evict) positions. It
now remains for us to defend this perspective against criticisms. As with all
moderate philosophies, the libertarian must vindicate itself vis-&vis objec-
tions from not one but both of the other two sides of this debate. It is to
this task that we now turn.
1. Transplant analogy misses the mark
Some might object to the kidney "transplant" analogy on the ground
that the woman is responsible for the pregnancy and must bear the full
consequences of the act responsible for this state of affairs, while Mr. A,
Thompson's violinist who lacks a kidney, is a completely innocent party.
But the woman, conceivably, could be ignorant of the causes of preg-
nancy; many were, in previous centuries. As well, the mother who was
victimized by rape has in no way consented. And yet, her child has the
same rights as all other children conceived in voluntary circumstances.
Even on the assumption that the woman voluntarily agreed to engage in
sexual intercourse, knowing full well that it might result in pregnancy, it
by no means follows that she should be forced to bear the child to term.
Under the libertarian code of law, we may be punished only for initiating
violence against a non-aggressor, or for contract breaking, which amounts
to the same thing. Yet, it is the unwanted fetus, not the mother, who is
"initiating violence" by trespassing on private property (the womb). As for
contract breakng, if the mother were paid to have a child by the father or
by a third party, then and only then would eviction or abortion constitute
a rights violation, not of the fetus but of the person who paid her. At the
point of intercourse, there was simply no child or fetus in existence with
whom she could have contracted, assuming that a person of such tender
age would be in a position to engage in an agreement in the first place.
Appalachian Journal of Law
Further, there is something perverse in interpreting the requirement
that people take responsibility for what they do in this manner. If a preg-
nant woman cannot evict her fetus on such a ground, what of the person
who ate too many French fries? Logic would imply the degitimacy of
him obtaining an angioplasty. For if you eat too many fatty foods you are
on your way toward having a heart attack, availing yourself of a coronary
bypass or other such operation would be to fail to "take responsibility" for
your initial actions. This is an obvious bit of nonsense. Yet, precisely this
argument applies to the eviction case.
2. Positive obligations
Another argument against the libertarian view is that it amounts to a
demand for positive obligations.
Before confronting this charge head on, let us place it in context.
Our claim, here, is that if we are indeed guilty of making an exception to
the general libertarian stricture against positive obligations, it is a very nar-
row and limited one. A l l that is required is that the pregnant woman
notify an evictionist that she wishes to rid herself of the fetus. In the case
of the post birth child, the "positive" requirement would be that the par-
ent not simply hide the child in an attic or basement and refuse to feed it
until it dies. Instead, the "obligation" is to engage in a public notification
(to the newspaper or radio or church or orphanage or evictionist) to the
effect that the parent in question no longer wishes to support his child. It
is only if no one else in the entire world desires to take charge of the baby
that it may legitimately die of neglect, under the libertarian code.
But even such a minimalist exception is still incompatible with the
prohibition against compulsory Good Samaritanism. In order to see why
such a charge does not apply, we must be clear on the relationship between
parents and children under libertariani~m.'~~
animals or land and other people. One may not own other adults; slavery
represents an initiation of vi~lence.'~' One may own animals and real
estate outright, after h~mesteading"~ - mixing one's labor with them.
A child falls part way between
180. Bill Kauffman, The Child Labor Amendment Debate of the 1920's; or, Catholics and
Mugwumps and Farmers, 10 J. of Libertarian Stud. 139 (Fall 1992); Williamson M. Evers,
Ratuls and children, 2 J.Libertarian Stud. 109 (Summer 1978); Williamson M. Evers, The law
of omissions and neglect ofchildren, 2 J. Libertarian Stud. 1 (Winter 1978); Walter Block, The
Employer of Child Labor, in Defending the Undefendable, 247 (Fleet Press 1976); Murray N.
Rothbard, The Ethics ofliberty, 97-112 (Humanities Press 1982).
181. For an analysis of "voluntary slavery," see Walter Block, Voluntary Slavery, 1 The
Libertarian Colinection 9 (Apr. 1969); Walter Block, Toward a Libertarian Theory of
Inalienability: A Critique of Rothbard, Barnett, Gordon, Smith, Kinsella and Epstein, 17 J.
Libertarian Stud. (Spring 2003); Walter Block, Alienability, Inalienability, Paternalism and the
Law: Reply to Kronman, 28 Am. J. Crim. L. 351 (Summer 2001); Walter Block, Market
Inalienability Once Again: Reply to Radin, 22 Thomas Jefferson L. Rev., 37 (Fall 1999).
182. John Locke, An Essay Concertlilzg the True Orkin, Extent and End of Civil Government,
in Two Treatises of Government, 17 (P. Laslett ed., Cambridge U. Press 1960); Hans-
20051 Compromising the Uncomprornisable
After the homesteading period is over, ownershp is no longer conditional;
it applies even to absentee owners. With regard to children, the interme-
diate case, one may not own them outright; one may own the right to
raise them, by homesteading, or mixing labor with them, or by hiring
others to do so in one's stead; but here, all one owns is the right to con-
tinue this process. Once the support of children (whether in the womb or
not) ceases, however, any rights of parenthood cease. One may abandon a
child, but if so, gives up all rights pertaining thereto. There is no such
thing as an absentee parent; once parental duties are relinquished, parental
So, what are we to say of a parent who no longer wishes to support
his child's life, indeed, wishes for death for the child, and acts in this man-
ner by hiding and failing to feed it, yet refuses to relinquish command of
the child? This would appear to be as clear a case of murder as ever there
was. Thus, it is not a positive obligation at all to be required to notify the
public that you are about to relinquish your control over what was previ-
ously your baby. Once you stop caring for it, the child is no longer yours.
In effect, if not explicitly, when you took over the care of the baby,lg3
you assented to an implicit obligation requiring you to continue to do so
or to notifjr someone else of this fact. To fail to do so thus smacks of rights
violationla4 rather than being forced to assume a positive 0b1igation.I~~
There are more pragmatic ways of reconciling the absence of "posi-
tive obligations" with saving a baby's life: medical technology once more
rides to the rescue. When and if there is a way to evict the baby which is
Hermann Hoppe, The Economics and Ethics ofPrit)ate Property: Studies in Political Ecol$ouny and
Philosophy (Kluwer 1993); Murray N. Rothbard, The Ethics of Liberty (Humanities Press
1982); Murray N. Rothbard, For a New Liberty: The Libertarian Manfesto, (Collier
183. Pre- or post-birth.
I o n T'k. - ,
the matter wo~~ld not apply to tne rape victim or to Thompson's
forced host to the violinist. See Judith Jarvis Thompson, Rights, Restitution and Risk
(Harvard U. Press 1986).
185. Hiding a newborn baby and starving it to death is akn to giving up land, but
refusing to allow another homesteader access. Is the abandoner of the land really required
to notifjr others of this fact? No, ordinarily, but then, land does not exactly have the same
rights as people, at least under the libertarian code of law. But yes, the abandoner of land
most certainly has the obligation of publicly notifj&~g people of his new non ownership
status if he has put up no trespassing signs, fences, etc., on his (ex)holdings. This is because
if he refuses to do so, he is actively preventing others from clainling non-owned land. In
keeping the baby (land) but not allowing anyone else to homestead (own) it, you are in
effect preempting the rights of others to do so. No one may properly prevent others from
homesteading virgin territory. A person who sets up a fence around a square mile of land,
does not himself homestead, work or even claim the territory internal to that perimeter,
and yet prevents others from so doing, is preempting virgin territory, contrary to
homesteading theory. It is our claim that the parent who will not care for his child, and yet
prevents other from doing so by hiding the baby from them, is guilty of a similar crime.
i s w y L p ~ ~ ~ i l l g
Appalachian Journal of Law
no more harmful, inconvenient, costly (or to pay the differential to the
mum), risky, whatever; then, she should not be allowed to legally refuse
the eviction, and we still do not have to concede that there are positive
obligations placed on her.
Are there any positive obligations incumbent upon the kidney host
person in the Thompson example? He cannot stab the ludney dependent
violinist, but can he unhook the connection without so much as a by your
leave? As a matter of practicality, as a non-physician, if he just cut the
chord, both host and parasitels6 would likely die. As a result, he must get to
a hospital or doctor to do the unhoolung; and while the medical team does
that, they can connect the parasite to another host or to a dialysis machine.
But suppose the host is also a skilled physician in his own right. Then, by
assumption, he can do the uncoupling all by his lonesome. Would he be
guilty of murder if he did so (without giving even so much as a five minute
warning to the violinist)? Our answer is that he would be guilty of mur-
der. He would be doing far more than acting in mere self-defense. He
would not be removing the (innocent) predator in the gentlest manner
3. Returning stolen property
Consider another criticism that could be leveled against the eviction
theory. This one charges an incompatibility between the libertarian posi-
tion on abortion and on the ethics of stolen property.18' What is the latter
Suppose that A is the rightful owner of a VCR. For the Lockean, he
built it out of materials available to all in nature.'''
traded for it using other property or labor services to which he was enti-
tled.lg9 For the Marxist, A was the legitimate owner of the VCR because
this was his share of the communal labor effort.lgO No matter what the
justification, we assume that A had legitimate proprietary rights over this
machine. B, then, comes upon the scene and steals the VCR away from
A, whereupon he sells it to C, offering a fake bill of sale. C is totally
innocent, at least in terms of mens rea; C is not a fence, not the knowing
purchaser of stolen goods. On the contrary, C, too, like A, is a victim.
We, the forces of good or of law and order, now come upon the
scene. We are the observer from on high. We know that the scenario as
For the Nozickian, he
186. "Parasite" has such a "bad press" in our common lexicon that we hesitate to imply
this word to describe the fetus or krdney dependant person. Yet, the appellation fits, filly.
We use it in the hope and expectation that the reader can uncouple the negative pejoratives
usually associated with this phase, and concentrate solely on the property rights
187. This was argued, forcefully, by Patrick English.
188. John Locke, An Essay Concerning the True Origin, Extent and End $Civil Goveunment,
in Two Treatises of Government, 17 (P. Laslett ed., Cambridge U. Press 1960).
189. Robert Nozick, Anarchy, State, and Utopia (Basic Books 1974).
190. Karl Marx, Capital (Modern Lib. 1906).
20051 Compromising the Uncompromisable 39
depicted above is correct. Unfortunately, there are limits to our powers.
Justice would consist of our seizing of B, and forcing him to remit the
funds he had mulcted from C, and returning the VCR to A, the rightful
owner. As it happens, however, while our knowledge of these occur-
rences is impeccable, B has eluded us; he is not to be found. A l l that
remain to us is the VCR, now in C's possession, and A, the rightful
owner, who looks longingly at his property now held by C.
What is the just course of action? C objects to our transferring of this
property from himself to A on the ground that he, C, purchased it in good
faith from B. He even has the contract to prove it. Unfortunately, for
him, this contract was drawn by B, the admitted thief. It seems clear under
these circumstances that C is out of luck.lgl The VCR must be taken out
of his hands and put into those of A, the original owner. Were B ever to
be found, C would have recourse to him; since B by stipulation is unavaila-
ble, C must bear the loss.
Where is the analogy to abortion? Here, B is the rapist who, unfor-
tunately, escapes justice. But which is which as far as A and C are con-
cerned? Who must bear the cost of the "theft": the mother or the fetus?
The right-to-life critic of the eviction theory maintains that it is the
fetus which properly takes on the role of A and the mother, C. That is,
given that someone must suffer an uncompensated loss (because the guilty
party, B, the one from whom any compensation would be derived, has
disappeared), it should be the mother. She should be forced to bear the
child until her pregnancy is terminated with a birth. Yes, she is guiltless;
totally. The victim of a rape cannot not be construed in any manner,
shape, or form as having agreed to give birth to a child. She is as innocent
as C, as in the previous case. And this is precisely the point; when B
absconds, whether the rapist or the thief, someone must endure an uncom-
pensated loss. This stems from the nature of reality. Innocent people must
sometimes be forced to bear losses, and the case of rape is one such.
-* 1 here is, however, a reply avaiiibie to the evictionist: A is realiy the
mother, and C is really the fetus. It is thus the latter, not the former, who
must be forced to endure the uncompensated loss. Why is the mother
really the A (rightful owner of the VCR) of our story? This is because it is
she, and she alone, who is the rightful owner of the property in question,
Here is another argument for preventing the pregnant woman from
evicting her fetus. This, presumably, would apply under a state of technol-
ogy that allows for viable evictions or under the lack thereof.lg2
191. We assume there is no theft insurance policy in effect, otherwise it is the insurance
company which is left holding the bag.
192. It is an element of moral reasoning that it be timeless in this sense. That is,
applicable to all state of the world, epochs, levels of technological development. Murder is
Appalachian Journal of Law
The claim is that the pregnant woman is not quite the innocent vic-
tim some theories might see her as. On the contrary, she endangered the
fetus by giving it life. That is, merely by conceiving of the fetus, she put it
in danger. Ig3
Ordinarily, for this libertarian view, there are no positive obligations.
Good Samaritan laws compelling a person to save someone else's life are
Illegitimate. However, if you first endanger a person, say, by throwing him
in the path of a car, then it becomes legally incumbent upon you to pull
the victim away, out of the path of the onrushing car.lg4
Although clever - too clever by half - this argument fails.
Getting pregnant is not equivalent to endangering a person. Rather,
it is enhancing the person, or creating him de novo, by giving him life.
The danger, if danger there be, comes not from being pregnant but from
being evicted (rather, being aborted).
What is the proper analogy to getting pregnant and then evicting?
This is akin to first pushing someone out of the path of an onrushing car
(where death would have been certain - as certain as not getting pregnant
would not give life to this particular person) and then, pushing so hard that
you push the saved person in an adjacent lake, whereupon he starts to
drown. The "victim" then complains, "Hey, you pushed me into the lake,
you are therefore required to get me out of here."I9' The proper response
is that if we get you out of the lake it will be over and above the call of
duty; we do not owe it to you. The proper interpretation of our act is not
"endangering you", but rather "saving your life," at least for the few
wrong in the past of cave man days, at the present, and in the future of space-man days.
Were this not to apply, we could scarcely hold murder to be ethically proscribed. On this
see Walter Block, Neglect o f the Marketplace: The Questionable Economics ofAmerica's Bishops, 2
Notre Dame J.L. Ethics & Pub. Policy 125 (1985); Walter Block, The U.S. Bishops and
Their Critics: An Economic and Ethical Perspective (The Fraser Inst. 1986).
193. It is now subject to the risk that the mother might rid herself of it and either kill it
(before the advent of eviction) or discomfort it (by making it move to a presumably less
preferable locale). In contrast, presumably, before conception, the fetus (does it even make
sense to speak of a fetus before fertilization?) was in no such "danger."
194. This duty to rescue, described to the senior by Karen Selick, is referred to as the
"danger invites rescue doctrine." The doctrine says that if a person commits an act that
endangers another, the actor wdl be liable not only to the person endangered, but also
responsible for any injuries suffered by a third person in an attempt to rescue the
endangered one. Seegenerally Govich v. North American Systems, 112 N.M 226, 814 P.2d 94
(1991). This doctrine has entered the public conscious to the extent it even appears in
popular fiction. See e.g. Orson Scott Card & Kathryn H. Kidd, Lovelock, 281 (Tor Books
1994) ("I also have a responsibility to protect it from all harm, because I brought it to
life. . ." The character Lovelock makes this statement with regard to the baby Faith in this
novel, under conditions while not exactly the same as we are discussing, are eerily similar.)
195. E.g., "Hey, you got pregiant with rrLe, you created my life, yau endangered me, you
have to save me now."
Compromising the Unco~npromisable 41
seconds between being pushed out of the way of the car and the time
when you fell into the lake.
This defense of eviction succeeds easily when the extant level of tech-
nology allows for the saving of the baby's life in a test tube or host mother.
Here, by stipulation, the evicting mother is not at all endangering the
baby; rather, she is merely transferring it to another "home." But what
about the case when medical technology is not sufficiently developed to
achieve this end. Then, is not the eviction identical to the abortion? And
can it be seriously denied that an abortion harms or endangers the fetus?
Our reply is that when the mother conceived the baby, gave it life,
the correct way to look upon this act is as if she pushed a person away from
the path of an onrushing car. In so doing, the erstwhile victim of the
automobile is pushed into the lake, where he proceeds to drown. It would
be nice if the rescuer thereupon went into the lake to perform a further life
saving effort; this would be virtuous; this would be highly moral. But in a
libertarian society of no positive obligations, there can be no legal require-
ment toward this end. Similarly, after giving the fetus the boon of life, it
would be highly desirable if the mother were to carry through with nine
months of pregnancy and then further support until the child reached
adulthood. This would be nice; this would be moral; this wodd be virtu-
ous; this would be ideal. But it is simply not legally required, at least in a
Consider the following:
"Close your eyes for a moment and imagine that, due to
advances in medical technology or mutation caused by a
nuclear war, the relevant cutaneous and membranous shields
became transparent froin conception to parturition, so that
when a mother put aside her modesty and her clotlung the
developing fetus would be in f d public view. Or suppose,
instead, or in addition, that anyone could at any time pluck a
fetus from its womb, air it, observe it, fondle it, and then
stick it back in after a few minutes. What then would we
think of aborting a fetus? And what does that say about
what you now- think?"19"
Obviously, men of good will would change what they now think
about abortion and be more likely to embrace libertarian evictionism. If
the fetus is viable at any time out there on its own, then how can killing it
be just? Evicting it, when the mother no longer wishes to be burdened by
it, yes, however morally repugnant; but out and out murder? Not at all.
196. Roger Wertheimer, Understanding the Abortion Avgumerzt, 1 Phil. and Pub. Affairs 86
(1971); (cited in Christine Overall, Ethics and Human Reproduction: A Feminist Analysis, 40
(Allen & Unwin 1987).
Appalachian Journal of Law
This, unfortunately, is not at a l l the conclusion self styled feminists
wish to draw from Wertheimer's plucking scenario. On the contrary, they
recoil in horror from so reasonable an inference. States Overd:
"Wertheimer predicted that if the developing embryo/fetus
could be viewed and manipulated, attitudes toward it would
change. About this he was quite correct; but what he did
not foresee was that those changes might be morally undesir-
able. As the capacity to manipulate the embryo/fetus grows,
the increasing tendency to commodifj it and to view it as a
work of art or an ongoing experiment should be resisted.
Instead of treating the embryo/fetus as a distinct, separate,
independent entity, it should be seen in a more holistic fash-
ion as connected with its mother, who is not a danger to it
but the source of its ongoing s~stenance."'~'
Seldom have more fallacies and refusal to face reality been packed
into a smaller paragraph. First, Wertheimer's point was not at all that the
baby would be seen as an art or an experiment; rather, it was to save its life
by arguing against abortion. Second, commoditizati~n'~~
whatever to do with the case.199 Whether the pre-birth adoption would be
done for money or not is entirely irrele~ant.~" Third, the essence of the
argument was that under this scenario for the first time the young human
being need not be seen as part and parcel of the mother; remember, with
modern or perhaps futuristic technology, it will be able to do quite nicely
outside of her womb. Therefore, the genetic or natural or even host
mother is no longer a (necessary) "source of its ongoing sustenance." Last,
and most important, the mother of the fetus most certainly is "a danger to
it," specifically in the case where she wishes to abort her child.
6. Parental rights
There is an argument against mere eviction, as opposed to abortion,
which claims that the parents have the right not to bring life forth unless
they wish to do so. This point is made most forcefully by Ross who states:
"The fetus is the only thing that someone - a parent - may with equal
197. Overall, inja n. 206 at 61.
198. For another viciously anti-commercial creed see Patricia Baird, Proceed with Care:
Final Report of the Royal Commission on New Reproductive Technologies, 2 volumes, Ottawa,
Canada: Minister of government Services, 1993.
199. For another unwarranted attack on comnioditization, see Margaret Jane Radin,
Market-Inalienability 100 Harv. L. Rev. 1849 Uune 1987). For a reply see Walter Block,
Market Inalieraability Once Again: Reply to Radin, 22 Thon~as Jeferson L. Rev. 37 (Fall 1999).
200. The presumption, however is that if an act is legally justified, then it is licit whether
done for money or not. True, there are some things that by their very nature cannot be
done on a commercial basis. For example, it is a logical contradiction to pay for the true
friendship or true love. For there to be true friendship or true love, it cannot be done for
money. However in every other case, if s~mething is legitiniate to do for free, it is
legitimate to do for profit.
Compromising the Uncompvomisable 43
comprehensibility and legitimacy want dead."201 He defends this perspec-
tive on the grounds that parents have such an intimate relationship with
"If upon entering a clinic women were told, 'We can take
the fetus out of your womb without any harm to you or it,
keep it alive elsewhere for nine months, and then see it
placed in a good home, many would, understandably, be
quite unsatisfied. What they want is not to be saved from the
'inconvenience of pregnancy' or 'the task of raising a certain
(existing) child?'; what they want is not to be parents, that is,
they do not want there to be a child they fail or succeed in
raising. Are these people monsters? Hardly. Certainly 2ny-
one who wants the violinist they unplug themselves from, or
a full-grown child they abandon, dead is incomprehensibly
malicious. But it is precisely because our relationship to the
fetus is not like either of these that the desire it be dead
Elsewhere, Ross maintains, "one can simply want there to be no child at
all," and describes this as "a deeply felt personal preference subscribed to
by some, yet intelligible to all. "203
Well, it may be intelligible to most of us, at least to all those who have
ever wished someone else dead. But mere intelligibility is hardly sufficient
to establish a just legal code. If it werei we would have to repeal the law
against murder. 204
Overall provides a good antidote to the excesses of Ross. She main-
tains, "This kind of feeling does not justify killing the embryo/fet~s."~~~
201. Steven L. Ross, Abortion and the Deatlz of the Fetus, 11 PM. and Pub. Affairs 236
202. Id. at 238.
203. Id. For a view supportive of Ross's, see Tristam H. Englehardt, Jr., Viabiiily and rhe
Use ofthe Fetus, in Ethics and Public Policy, 307 (Tom Beauchamp & Terry P. Pinkard eds.,
204. What should be the legal status of those who physically interfere with abortionists
(this analysis is limited to cases where eviction is possible) that is, either by destroying
abortion centers, or killing abortionists? States Rothbard, The Ethics $Liberty at 77, ". . .if
every man has the right to defend his person and property against attack, then he must also
have the right to hire or accept the aid of other people to do such defending: he may
employ or accept defenders just as he may employ or accept the volunteer services of
gardeners on his lawn." Extrapolating from this, the implication is that, while the fetus is in
no position to "employ or accept defenders," defenders may indeed come to the aid of
those who are about to be murdered. Thus, it would be entirely appropriate, according to
our understanding of the libertarian legal code, to lull those in the act of murdering fetuses
and/or to destroy the means they use to this end, e.g., abortion clinics. But remember the
caveat: this applies only to cases where eviction is not an option; otherwise, the mother's
property rights in her own person take precedence.
205. Overall, Ethics and Human Reproduction: A Feminist Analysis at 81.
Appalachian Journal of Law
Why not? Because for Overall "the mother does not own (the fetus) and
therefore is not entitled to have it killed."206 This is precisely in keeping
with the libertarian view of the matter. There, the mother can only own
the right to continue to parent the baby and can do so only by continuing
this practice. Once she stops this support of her chdd, let alone wants to
lull the fetus, all of her "homesteadmg" rights over it cease forthwith.
Overall, although she clearly sees the errors of Ross and Englehardt,
unfortunately does not accept the entire libertarian package. For one
thing, she balks in the case of the "enibryo/fetus (which) is irretrievably
deformed or damaged by the abortion process."207 For another, she rejects
"embryo adoption" because "at all points during pregnancy (it) is not yet
technically possible and in any case raises its own moral problems: Should
all aborted embryo/fetuses be candidates for adoption? What about those
with defects? What women should be able to become their adoptive
mothers? How should the decision be made?"208
We cannot deny that these are reasonable questions. But they all have
libertarian answers. Yes, all aborted embryo/fetuses should be candidates
for adoption. This should include those with defects. Only if not a single
solitary person on the whole earth wants to adopt such an infant should it
be allowed to die. (This is surely unlikely in the extreme, unless the entire
pro-life movement is totally hypocritical.) Any woman (or man) should be
allowed to become the adoptive parent, provided of course that the laws
against child abuse be strictly upheld.209 The decision should be made by
the institution called upon by the pregnant woman (upon pain of violating
the law) to do so. Presumably, this would be a hospital, or a church, or
some other organization set up to undertake such actions. Nor (contrary
to Overall) would there be any law in the free society preventing the high-
est money bidder froin becoming the adoptive parent.
We have attempted to explain the pro-life and pro-choice positions
and to discuss their strong and weak points. We described a compromise,
called evictionism, and showed how it is a true intermediary between the
two more well-known positions on abortion. We have demonstrated how
it can be justified, while they cannot.
The key to the solution is to focus on the private property rights in
question. In this case, it is the mother's womb; given that the fetus is
unwanted, it is in effect a trespasser, or a parasite. The mother, then, has a
206. Id. at 82.
208. Id. at 84.
209. In the libertarian society, such behavior would be subject to very severe negative
sanction; presumably less of it will therefore occur.
20051 Compromising the Uncompromisable 45 Download full-text
right to evict it - in the gentlest manner possible - but not to kll it, if
technology permits her not to do so.
What remains, on a practical level, is to enact legislation based on this
libertarian philosophy. That, in our opinion, constitutes the last best hope
for saving mdions of innocents from merciless slaughter, without in the
slightest violating the rights of any pregnant woman.