March 28, 2024
Our libertarian non-agreement on abortion is a vacuity. Applying either the libertarian non aggression principle or general morals to resolve the conflict between a woman's bodily rights and the life of a fetus bewilder us. Both of their rights are infringed. There are no convenient answers so we spare ourselves the labor of thinking and ignore the issue. Political Libertarians say that it would split the party and it never comes up at meetings. Libertarian sites or books are silent.
The major parties are entrenched in intractable moral positions and strife between them will continue indefinitely.
We libertarians should not import the battles of the major parties. We can derive a reasonable position on abortion from the work of Bruno Leoni (1913-1967), an Italian lawyer who explained the advantages of common law to libertarians. His 1961 book, "Freedom and the Law." is a priceless tool to analyze the relation of the citizen to law and liberty. Leoni was a friend of von Mises and of von Hayek and served for a while as the president of the Pelerin society.
Leoni analyzed legislator-generated law like that which we use in the USA or what he had learned in Fascist Italy. Legislators and "leaders" make laws that control the population. These laws are orchestrated by majorities in legislatures as a quick solution to society's ills by individuals who have no knowledge of the issues involved. They are almost always inspired by special interests who hope to benefit from the laws. As written they often extend to areas that were not part of the original purpose of the legislation so impacting individuals who have no interest in the subject. These concoctions are unpredictable in their timing and impact. In democracies these laws often purport to "make people's lives better" in an attempt to influence voters. The law abruptly imposes demands on everyone in the realm. Legislated law does not present any solution to any particular case and it usually needs to be amended creating even more uncertainty. (The processes that make laws forbidding abortions could just as easily pass -for instance- forcing disagreeable women to have terminations.) There are victors and victims of legislated law. The losers can appeal to the courts for judicial relief, but then many judges impose their own legislative fantasies. Leoni emphasizes the bane effect that legislated laws with their lack of predictability have on individual freedom. In our modern society there are too many laws and everyone is a criminal.
Leoni was exposed to English common laws during WW2. This type of law emerged from the practices of the people. Actual cases were presented to lawyers and judges who had to work out the solutions for the conflicts at hand. When presented with a new problem, the judge or lawyer relied on studying similar cases to work out principles that would resolve these cases. The results of each of these cases applied only to the individuals involved in the dispute. The law emerged only from the actual practices and problems of the population affected. As an example, in tribal areas of central America where everyone steals, theft is not a crime. Common law evolved slowly and developed only as secular conditions changed. It corresponded to what every law abiding person experienced in his daily life, was widely understood, and was unlikely to change without individuals noting the reason for the evolution. Legislators did not write the laws but rather "found the laws" in the practices and beliefs of the population. Common law stability and lack of capriciousness made for maximum individual liberty.
Judge-made or the common law was codified by Blackstone (1723-1783) in the mid 18th century and his writings were used by colonial and the early nineteenth century lawyers in our republic. It is used to some extent to this day.
In Blackstone abortion was unlawful only after a woman was "quick with child" because that is when "life begins in contemplation of the law." Quickening occurs only after the sixteenth week of pregnancy. It seems that during colonial times and for the first 50 years of our Republic only late term abortions were unlawful. Also (and here I agree with Wikipedia) the nostrums tried for abortion at that time didn't work anyway.
Things changed during the 1840s and thereafter.
By 1840 the founding fathers with their wariness of government had disappeared. They were replaced by professional politicians who needed to do spectacular things to be reelected. They adopted the common law after modification but then passed totally new laws that helped favored constituents, like protection for the new manufacturing base in the northeast or king cotton in the south.
The AMA began in 1847 to improve the economic prospects of medical doctors. AMA members were active and successful as they lobbied for state licensing and monopolies that excluded competitors like osteopaths, homeopaths, chiropractors, naturopaths and midwives. The midwives controlled the women's health market and were reputed to profit from doing abortions and so the AMA lobbied the state legislators to make all abortions illegal. They also started badmouthing abortions as immoral. By 1900 all states had made abortions illegal, many shielding the usual boiler plate exceptions - uncommon instances of threats to the mother's health, incest and rape.
The major problem with doing surgical abortion is holding the cervix in a position so that it was possible to insert a coat hanger, (or surgical steel if by Planned Parenthood,) into the uterus. I find that a bullet extractor was well developed by the Civil War and it would serve with few modifications as a tenaculum - an instrument holding the cervix and positioning the uterus.
But using a tenaculum on the cervix was extremely painful; luckily ether for anaesthesia became available in 1846 and chloroform in 1847.
And so surgical abortion was developed and deployed in the mid nineteenth century even as it became ever more illegal. It thrived underground. Abortionists got referrals from practicing doctors and in whispers at Kaffee Klatches.
Prosecutions for these illegal abortionists were uncommon. Always cited is Madame Restell (1811-1878) who did abortions openly. She spent a year in prison and died a very wealthy woman.
The Guttmacher Institute did studies estimating that there were 699,00 illegal abortions in 1955 and 829,000 in 1967, nearly all illegal. I knew the name and address of the abortionist for the Buffalo area in the early 1950s. It was common knowledge.
Various countries had made abortions legal in the 1960s. There was the thalidomide problem in 1962 and a German measles outbreak in 1967. Both caused congenital birth defects. Abortion was proposed as a reasonable solution and some states legalized abortion in the late 1960s.
The Roe Vs. Wade SCOTUS decision in 1973 nullified state anti-abortion laws. It turned on a poorly reasoned privacy rights issue which was implied in the constitution. An abortion was a confidential deal between the woman and her doctor so the privacy in the fourteenth amendment applied. (No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.) The states could no longer forbid abortions.
The Dobbs decision in 2022 overturned Roe and returned the power to regulate abortions to the states. The majority finding written by Justice Alito also invoked the fourteenth amendment. There was no mention of a right to an abortion in the constitution. Alito admitted that some rights like marriage and birth control were deeply embedded in the understanding and ordinary statues of the people at the founding. These were legitimate rights implied in the constitution which placed them beyond the reach of the individual state legislators. Alito then announced that the common law forbade abortions "in at least some stages" so abortions were not historically founded rights. But as we have seen, Blackstone actually deemed abortions after 16 weeks to be unlawful. Ninety three percent of Abortions in the USA were done before 13 weeks and would have been lawful according to common law. Alito perverts the plain language of the common law - emanations and penumbras in reverse.
Alito treats the laws criminalizing abortions passed in the mid nineteenth century as acquiescence by the general American public and ignores the influence of the AMA. He ignores the millions of abortions that were done illegally. Alito elevates these laws to be part of the American tradition. Maybe it was tradition - that of civil disobedience.
Alito crowed that he had "return(ed) that authority to the people and their elected representatives," which is where the abortion nuisance started in the first place.
The minority opinion was written by Justices Breyer, Sotomayor and Kagan. In a long winded and scattershot rant they invoke stare decisis, sociological principles, feminism, and the bone-headedness of the majority. "The majority thereby substitutes a rule by judges for the rule of law," which is what Alito also claimed. Both majority and the minority opinions reflect the ambition of the justices to legislate.
Abortion is still a big political issue and the major parties will wallow in the muck indefinitely.
But abortion has changed; The OTC "morning after pill" is a proactive abortion. Two thirds of abortions are now done medically with several different tried and true modalities available. Some can be prescribed by any licensed physician, or ordered online from "Canadian pharmacies." I gather that the 1873 federal Comstock Act banning delivering anything "immoral" is another legislative utterance that is not enforceable. Fedex might make abortions yet another homey experience.
Libertarians can advance liberty and quiet moral strife by returning to the common law traditions and voiding the chaos that the legislators and special interests have unleashed. Abortions were legal until quickening at 16 weeks. They were done safely and commonly in defiance of the laws that legislators passed. These procedures are increasingly done medically and out of the sight of the government. Disputed cases can be settled by lawyers and judges, one at a time. These understandings will probably change over decades to reflect changes in the biology of abortions and the practices of peaceful people living under the law to form a new common law. Politicians can codify them if they want.
Or, we can adopt a one sentence libertarian slogan - "Don't pass laws that folks won't obey."