Fetal Rights: Implication of a Supposed Ought
[from Liberty Magazine, July 1989, pp. 51-52]

Tibor R. Machan

When back in 1973 I edited The Libertarian Alternative (Chicago: Nelson-Hall, 1973), the libertarian political outlook wasn’t well known and “libertarian” certainly was no household word as it is today, what with prominent media figures identifying their own position by that term. Several presidential hopefuls have stopped being coy and now openly describe their own politics as libertarian--e.g., Ron Paul and Gary Johnson. Judge Andrew Napolitano of Fox Business News’ daily “FreedomWatch” program, as well as John Stossel of that same outlet’s weekly “Stossel” program make no bones about their championing libertarianism.

Now all of this is very welcome to those who hold that the fully free, libertarian polity is superior to all other live options advocated by political thinkers. There is, however, one small fly in the ointment. Among those I mentioned above several are "pro-life," so called, in the debate about whether one of the liberties citizens have a right to is obtaining abortions. Ron Paul and Andrew Napolitano are both of this school, holding that abortion is the killing of a human being. One may assume that they would both accord full legal protection to zygotes, embryos, and fetuses, seeing that as they see it, these all have the right to life just as any other human being does. Maybe they would qualify this just a bit by noting that the homicide involved would be akin to infanticide, not the killing of an adult. But just as infanticide is one variety of homicide, so could abortion be.

Several decades ago, when libertarianism was not yet discussed on news programs I aired some concerns with the position held by Representative Paul and Judge Napolitano on the abortion topic. It sparked some response from some who embraced the position--e.g., certain prominent members of the organization Libertarians for Life--but it certainly cause little stir even among the participants of the then budding libertarian movement. At this time, however, it may be worth revisiting the issue and seeing how it might be dealt with by those who embrace the Paul/Napolitano viewpoint. For this reason I want to once again publish the piece in which I aired my concerns, this time on line. (The original article was published in Liberty Magazine and a response was penned by Edwin Viaira, “Fetal Rights: Enforceable in Principle” at Libertarians for Life [1996]. Although Vieira stated in that essay that the argument I advanced is “one frequently used,” he cited no other literature in which it is presented. I myself know of none.)

So then here is the essay as originally published in Liberty Magazine:

Among the many issues considered in connection with the abortion controversy, there is one that has, unfortunately, received little attention. To wit, if the “pro-life” position is roughly right—that is, if human conception entails a serious right to life for the conceptus—then certain radical legal consequences follow. If zygotes, embryos, and fetuses have a right to life comparable to infants and adults, then miscarriages or spontaneous abortions must become subjects of extensive and constant police scrutiny.

Every state has some public policy regarding police investigation of unexplained deaths and homicides. (See Wayne R. LaFave & Gerold H. Israel, Criminal Procedure [St. Paul, Minnesota: West Publishing Company, 1985], Chapter 1.) The authorities must determine that there are no reasonable grounds for suspecting murder or some other variety of illegal killing. In addition, if a fetus or zygote has a right to life, it follows that any activity on the part of the pregnant woman (or even a companion or stranger) that might result in a miscarriage (say, arising from some sport or a minor traffic mishap) could constitute negligent homicide. (See Criminal Law 21 Am Jur 2nd Par. 132; Model Penal Code Article 210, Section 210.1 & 210.4 Criminal and negligent homicide [1962]; Commonweath v. Nelansky, 55 N.E. 2nd 902 [MA. 1944].

In the death of an adult or even a child, the public accessibility of the deceased makes it relatively easy to determine whether foul play can reasonably be assumed. Innumerable forensic methods and devices exist for this purpose. Simply checking the body will usually provide investigators with sufficient information to determine whether there are grounds for suspecting a crime. Often, there are members of the public well-acquainted with the deceased, and these friends, family and neighbors can testify to suspicious circumstances, history, and the like. The same situation, however, does not apply in the case of deceased zygotes.

Whatever it is that is created at conception—whether it is something that is human or something that is only potentially human—it is often not known to exist until long after conception. Women do not know that they are pregnant immediately after they have conceived. The plain fact is that “unborn children” are hidden for several weeks from the kind of public exposure that even babies enjoy. In advanced civilizations, many of these unborn are monitored by physicians, but this usually occurs only after they have lived and been vulnerable to mistreatment for several weeks. This alone seems to violate the “ought implies can” provision of ethics, which states that if someone is required to act in a particular way, it must be possible for that person to carry out the responsibility. The veil of ignorance that surrounds the early stages of pregnancy causes many problems unforeseen by the advocates of fetal rights.

Even if immediate knowledge of conception were possible for a pregnant woman, the situation would be the same. What is required is public knowledge, as well as private knowledge. It is the rights-protecting authorities who must be able to know of the existence of the embryo, zygote or fetus in order to protect their rights. This requirement is not easy to meet.

Of course, one could imagine the following: At the moment of any possible conception—that is, whenever heterosexual intercourse takes place between fertile parties—an extensive machinery of examination, registration and supervision of possible pregnancies could be generated. Every woman would have the constant duty to check whether she is pregnant. If the answer is in the affirmative, the woman would immediately have to register the conception of the new human being. She would then have to submit to constant inspection and supervision, so as not to permit the possibility of a neglectful miscarriage—for example, from sports, recreation, work, or play, or any of a number of other activities.

This kind of “solution,” however, conflicts with the existence of the rights of persons to not have their lives unreasonably scrutinized by authorities—or, as the 4th Amendment of the U.S. Constitution puts it, “against unreasonable searches.” The threat to the rights of possible parents would be enormous—indeed, to do their duty, governments must violate human rights on numerous fronts. A veritable police state would have to be established so as to uphold ordinary justice.

This extraordinary extension of state power can also be considered a violation of the “ought implies can” provision, although in a somewhat complicated sense. Ought implies can not only in a physical sense, but also in a moral sense: a moral obligation must not require immoral acts. Rights must be compossible—the human right of a fetus cannot contradict the equally basic human right of anyone else (although some prima facia rights theories allow for the ranking of human rights). Accordingly, even if all pregnancies could be detected immediately upon conception, the institutional arrangements required for this would involve extensive rights violations and, thus, make discovery of negligence and other criminal conduct during pregnancy morally impossible.

A legal policy consistent with the idea that the human being is formed at conception could not be carried out in a society that respects the sovereignty of all of its citizens, including pregnant women. If a law is unenforceable in principle, it is inoperative. This, in turn, suggests that the “pro-life” position implies a set of legal consequences that are impossible in the very society that supposedly recognizes the rights of its citizens in all cases other than the unborn. If we add to these considerations the possibility that some alternative theory of when a human being comes into existence makes better sense and does not imply a widespread official violation of individual rights, then the case against the “pro-life” position seems very strong indeed. Before it could even be considered sound, it would have to be shown that the widespread intrusion into the lives of persons as discussed here is not implied by the “pro-life” doctrine.

The normal respect for and protection of individual rights cannot be extended to the being that is created by conception—not, at least, without an absurd invasion of the rights of adult human individuals.