Can Libertarians Justify Legal Abortion?

Abortion is arguably the most controversial and divisive issue today. It involves disagreements on personal topics like bodily rights and the value of human life, which can set the stage for emotionally-charged debates.

Libertarians find themselves on both sides of the issue, though nearly six in ten could be best described as pro-choice. The Libertarian Party’s official position is that the government should not play a role, leaving the individual to decide if abortion is appropriate.

Is this the proper libertarian position? Answering this question requires a review of common libertarian arguments in support of legal abortion.

1) The government has no right to tell women what to do with their body.

This is probably the most popular libertarian argument in favor of legalized abortion, as it’s grounded in the idea of self-ownership. However, the argument fails to account for a critical fact: a woman’s decision to terminate her pregnancy affects more than just her body. At the moment of fertilization (or conception), there is a distinct human life inside the mother. This is a universally acknowledged fact by embryologists.

Consequently, libertarians cannot appeal to self-ownership to justify legal abortion just as they couldn’t appeal to the concept to justify punching an innocent person in the face because the assailant owns his own fist. The implications of adding another human being into the discussion should change the calculus of libertarians.

The act of abortion is a violation of the unborn’s right to self-ownership and rises to the level of initiating violence, which violates the non-aggression axiom—a pillar of libertarian thought. Using this framework to analyze other libertarian arguments in favor of legal abortion is critical to ensuring a proper understanding of the philosophy. With this framework in place, let’s look at three other arguments.

2) Criminalizing abortion won’t prevent the practice.

I acknowledge criminalizing abortion will not necessarily stop all people from performing or requesting abortions. Yet, just as it would be wrong to legalize murder or rape because it doesn’t prevent people from committing these heinous acts, one shouldn’t justify abortion on the same grounds. I posit the number of abortions would decline if they were made illegal given the inherent risk of engaging in illegal activity, but as the drug war clearly shows, criminalizing a behavior doesn’t eliminate that behavior.

However, this argument primarily involves a question of justice. Yes, some people will continue to break the law, but if the unborn really are human beings, criminalizing the practice opens the door to punishing people who take a human life. Justice requires each person is given their due. A legal abortion regime perverts justice because it allows for the taking of human life without any legal consequences. (This is not to discount the emotional, psychological and physical consequences of abortion, which can be painful for those involved.)

3) Criminalizing abortion will put women in danger.

Any loss of life is tragic. The year before Roe, 39 women died as a result of an abortion. Pro-life activists are quick to point to this statistic to refute those who claim countless numbers of women would die if abortion is criminalized. And while they’re correct to highlight such exaggerated claims, there’s a larger issue that must be addressed.

Abortion is unsafe for 100 percent of the unborn. It’s a distortion of morality to defend the legalization of a practice that results in the near certain end of a human life to prevent the possibility of another death. In an alternative world where abortion is illegal, reducing the number of deaths would require education and support (financial, emotional, etc.) for women who are considering abortion to dissuade them from ending their pregnancy. This is the only moral solution to preventing unwanted deaths.

4) Criminalizing abortion would require a totalitarian state.

Pursuing justice for the unborn is possible without increasing the size and scope of government. Libertarians understand the inherent problems with the criminal justice system. Too many people are behind bars. Rights are violated on a daily basis. And the system breeds recidivism rather than helping people transition back to normal life. Libertarians worry these problems would be exacerbated if abortion were illegal.

Yet, similar to the third argument above, this possibility doesn’t justify sanctioning the certain loss of life under a legal abortion regime. Moreover, to protect the truly innocent from being prosecuted, say in the event of a miscarriage, libertarians should and have supported criminal justice reforms (ending coercive plea bargaining, repealing malum prohibitum offenses, requiring law enforcement to carry liability insurance, etc.) that serve as a bulwark for people’s rights. It is possible to protect the unborn and the rights of the accused. Suggesting otherwise is a false choice

If there comes a day when abortion is outlawed, it will be incumbent upon all of us to help both women (and men) to see the beauty of life and provide the support they need to raise a child—a responsibility that surpasses all others.