Not too long ago the libertarian position was often summarized as “pro-choice on everything” to distinguish it from the nanny state tendencies of the left and the moralizing tendencies of the right. “My Body My Choice” is about as distinctly libertarian a political slogan as one could hope for. But in our post-Roe world, libertarians have lost touch with these first principles now when they are most threatened.
Earlier this year the Libertarian Party removed the party’s abortion rights plank from its platform (along with language opposing bigotry, incidentally), a move that party leadership has already come to regret. It seems that trying to accommodate both those who support abortion rights and those who would authorize the state to compel raped and impregnated children to carry pregnancies to term renders libertarianism unrecognizable. Critics of libertarianism are justified in their mockery if we fail such a basic litmus test for individual liberty.
Liz Wolfe, Associate Editor at Reason Magazine and an outspoken “pro-life” libertarian, wrote earlier this year that the toppling of Roe is something “pro-life libertarians can cautiously cheer.” She rather tellingly describes the reduction in abortions in Texas after its draconian six-week ban went into effect as people being “dissuaded” from seeking abortions. This is a fundamental betrayal of libertarian philosophy. The Texas bounty system for reporting illegal abortions is an abomination, essentially deputizing anyone as an abortion bounty hunter. The collateral damage to individual rights beyond abortion access is piling up before our eyes. “Dissuaded” is far too polite a term for what this law is doing.
Libertarians are often the first to argue that one shouldn’t judge a policy by its stated intentions, but by the actual consequences of those policies. When the state intervenes anywhere it invariably creates unintended consequences that are often worse than the supposed societal ills it set out to correct. We are already seeing these consequences following the overturning of Roe, though one wonders whether they are really unintended at all.
Fetal personhood’s collateral damage
Recent headlines reveal such atrocities as a child made pregnant by rape being forced to travel hundreds of miles for medical care that was legal mere weeks ago. Others have reported that pharmacists are refusing to fill prescriptions to treat arthritis because those medications can be used in medication abortions.
One Texas woman was forced to carry a dead fetus for two weeks before getting the necessary abortion care, exposing her to risks of infection, sepsis, hemorrhage or worse. Still more examples of doctors watching and waiting as a woman’s vital signs continue to deteriorate to a point where her life is sufficiently endangered for an abortion to be allowable under law. Or yet another case of a 16-weeks-pregnant woman forced to labor and deliver a non-viable pregnancy because the D&E procedure is banned in her state. Cases like these are why the International Criminal Court (ICC) has since 1998 considered forced pregnancy to be a crime against humanity and a potential war crime.
Some anti-abortion advocates will say that their laws contain exceptions when the life of the pregnant person is in jeopardy. Ohio’s law contains no such exceptions for rape, incest, or risk of injury, which prompted the need for the ten year old to flee to Indiana for what was until recently a routine medical procedure. Even in states with exceptions for safety, in practice this results in a chilling effect on providing recommended care and puts lawyers in the position of determining the course of treatment rather than doctors. And let’s be clear, advocating fetal personhood with exceptions for rape and incest is internally inconsistent. Advocating fetal personhood without exceptions for rape and incest is unconscionable.
Are the lives of hypothetical future babies (blastocysts, zygotes, embryos, and fetuses are not babies) worth more than the lives of actual living breathing pregnant individuals? Are people with the capacity for pregnancy nothing more than walking, potential incubators?
Even if we concede the argument that a fetus is a person with individual rights, libertarians should still oppose abortion restrictions. If someone is invading your home, you have a right to repel them, especially if your life is at risk. It follows that if someone is invading your uterus then you also have the right to repel them as well. Fetuses hijack blood supplies and even begin to leach the calcium out of the bones of the person whose body they have commandeered. This may seem like a peculiar projection of agency onto fetuses, but it’s no more peculiar than the rights, interests, and souls projected onto fetuses by advocates of fetal personhood and forced pregnancy.
No one has a right to your circulatory system, and if someone has affixed themselves to your circulatory system against your will, you have the right to use force to stop them from doing so. One rights-bearing individual does not have the right to the calcium in the bones and teeth of another rights-bearing individual.
I actually do believe one can be libertarian and “pro-life” as long as one doesn’t impose this belief on others by force. One ought to be free to persuade people that rights begin at conception (or fertilization as some of these newer laws have done) but not to codify these individual moral opinions into law. In the same way that many libertarians personally oppose drug use or sex work, they also oppose the state criminalizing participating in those activities. Tellingly, Alito, in his Dobbs opinion, cites drug use and sex work as examples of behavior the state can criminalize with no regard to bodily autonomy:
“Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.”
American political life has been surreal for a long time now, but witnessing the death of the unenumerated right to privacy at the hands of a growing Christian fascist theocracy while ostensible libertarians nod along approvingly has been particularly disturbing. This puts those libertarians celebrating the overturning of Roe to the right of Barry Goldwater and Ayn Rand.
Back to the drug war metaphor: why do libertarians oppose drug criminalization even if some libertarians think drug use is inadvisable? First, they recognize the paramount nature of bodily autonomy. People have a right to use or abuse their bodies as they see fit. If you don’t have the right to bodily autonomy then you cannot be said to really be free. Second, they acknowledge that the state apparatus necessary to enforce drug criminalization results in a litany of unintended consequences that are worse than drugs themselves.
While the United States is home to just five percent of the world’s population, it has the shameful distinction of having the largest prison population, by far, at nearly 20% of the world’s population of incarcerated individuals. There are too many laws and regulations that govern too many aspects of our lives. Advocating fetal personhood adds fuel to this fire. I find it incoherent for anyone presumably concerned with the prison industrial complex, the surveillance state, or freedom of speech & association to be advocating for charging doctors with felony murder for providing standard and demanded medical care.
Libertarians understand better than anyone that criminalizing certain behaviors doesn’t make them go away. It only pushes those activities underground into a dangerous black market where abuse and corruption thrive. Wealthy people will always be able to hop on a plane and fly to another state or country with abortion access.
Just as the war on drugs has devastated marginalized communities, the war on abortion will play out much the same way. It’s poor people, trans people, people of color, and people already on the margins who will bear the brunt of these laws. Maternal mortality rates in the U.S. are already appallingly high, and those numbers are even worse for black women and other women of color. Many will resort to much more dangerous black market abortions, exacerbating this already grotesque inequality.
People will die as a result of these laws, and those people are pregnant right now. The police state that will be necessary to enforce these laws will necessarily trample on other rights that are integral to a free society. The pre-Roe world in the mid-20th century didn’t have dragnet digital surveillance with which the state could persecute people for seeking or providing abortions.
Now police can subpoena Google for your web search history or Amazon for someone’s Ring doorbell camera footage near an abortion clinic (as it turns out, Amazon is already handing over Ring camera footage to law enforcement without a warrant). The free association rights of abortion providers and their clients are now completely eviscerated. There are already reports of women being questioned about their menstrual history by police near border crossings. This is the untenable reality we all live in now mere weeks after Roe’s overturning.
States’ rights libertarians’ flawed priorities
Wolfe argues, as do many on the right, that abortion should be returned to the states. Set aside for a moment that Republicans would quickly abolish the Senate filibuster in order to federally criminalize abortion if they ever achieved a trifecta government again. Conservative libertarians like to emphasize states’ rights, looking to the Tenth Amendment in the U.S. Constitution’s Bill of Rights, completely overlooking the much more relevant Ninth Amendment. Taking a decision that was a few weeks ago a private matter between a family and their doctor and giving that decision-making authority to the state—at any level—is hostile to the very foundation of libertarian philosophy.
Many of the worst tyrannies in the United States’ history were inflicted upon people by state governments. Libertarians are cautiously skeptical of democratic decision making and jealously guard those areas in which they believe it is inappropriate and even dangerous for the state to insert itself. Libertarians argue that there are such things as individual rights that aren’t subject to a majority vote. The decision to continue or terminate a pregnancy must fall into that zone if we are to preserve a free society.
Now, state governments are even starting to entertain criminalizing interstate travel for the purposes of seeking an abortion. Others are starting to consider criminalizing advertisements for abortion services or medications. This is causing social media companies to begin censoring mentions of abortion care, or even linking to websites with information on obtaining abortions. Librarians in Oklahoma are being warned to not even mention the word abortion in conversations with patrons as it could open them up to civil liability for providing information on how to obtain an abortion. These new abortion laws could be the impetus for some of the most consequential free speech cases of the 21st century. The cascading rights violations that will inevitably result from criminalizing abortion are entirely predictable and indefensible, especially from a libertarian vantage point.
Many other civil liberties taken for granted today rest on the unenumerated right to privacy that the Supreme Court just eviscerated in the Dobbs opinion. Gay men were jailed for having sex in their own homes as recently as 2003, when Lawrence v Texas was decided, finding that state governments do not have the right to regulate the sexual activity of consenting adults in the privacy of their own homes. States like Kansas have laws that state “rights-bearing life” begins at fertilization. This would, if enforced, make things like IUDs or Plan B emergency contraception tantamount to homicide. Three of the dissenting justices in Obergefell v Hodges, the landmark opinion legalizing same sex marraige across the country, are still on the Court today! Pardon the metaphor, but there is no splitting the baby on bodily autonomy and privacy rights.
Frédéric Bastiat is famously quoted as saying that it’s worse for a good cause to be ineptly defended than skillfully attacked. These pro-forced pregnancy libertarians prove this rather effectively.
If you or anyone you know is in need of abortion care, or if you’d like to get involved in the abortion rights movement, you can check out ineedana.com for comprehensive resources on accessing care or information on how to get involved. Additionally plancpills.org has information on how to obtain prescriptions for medication abortions. I wonder, is this closing paragraph illegal in South Carolina?
Featured Image is Pro-choice protesters outside the Supreme Court in 1989, by Lorie Shaull