Matt Evans: On Abortion, Can The Government Limit The Exercise Of Rights?


Last time, we talked about the right of self-ownership.

One theoretical conception of abortion– one that is popular with pro-choice libertarians – is that an unborn baby is an “invader” within the mother’s body. If the woman is truly the owner of herself, shouldn’t she be able to expel the invading person from her body if she so chooses?

One oft-heard pro-life rebuttal to this argument is that the woman may have originally consented to an act which she knew would cause the “invader” to appear, e.g. she voluntarily chose to have unprotected sex, and therefore she must accept the consequence of her choice – a pregnancy.

This rebuttal is problematic for two reasons. Firstly, in the event that the woman was raped, clearly there was never any consent. Furthermore, being the owner of something, like your own body, means that you get to change your mind. So even if a particular mother originally was interested in becoming pregnant, it’s not a foregone conclusion that she loses her right of self-ownership. Ownership means getting to change your mind.

Obviously, with current medical technology, the consequences of her changing her mind are very severe for the unborn baby. Set the consequences aside for a moment – let’s agree that if a woman really has self-ownership, then as owner, she is allowed to change her mind about her body.

People who are unfamiliar with the libertarian “invader” argument may find it a bit too strange. So I’d like to cast it in a different light, and, in so doing, we’ll get to the question of government limiting the right of self-ownership, especially when it impacts the rights of others.

At this point, the article may make the Puritans among you a bit uncomfortable. I’m going to depict a hypothetical sexual act between two consenting adults. I’m assuming it’s less racy and considerably more awkward than your average romance novel, but I’ve never read one. You’ve been warned.
Suppose that a man and a woman are having consensual intercourse. Assuming that any sort of penetration is occurring, it is clear that the woman’s body has been “invaded”, that is, her partner is, to some limited extent, inside her.

Suppose that after some amount of time, the woman decides she does not want to be having sex, either with this person, or at this time, or in the room they’re in – whatever.
We would all agree that the woman’s right of self-ownership means that she can both change her mind about wanting to have sex – that is, she can revoke her consent – and, that the man in question should be required to stop “invading”, that is, he needs to remove his body from hers.

We also understand that, if a man in this situation refuses to comply with the woman’s wishes, she is permitted to use violence to stop him. That is, if a couple is having sex, and the woman changes her mind and tells the man to get off her, and he refuses, the woman is legally permitted to use a gun to make the man comply. This is a very real manifestation of the woman’s self-ownership right being protected by law – even to the extent of allowing lethal force. The issue of the woman having originally consented is irrelevant, because she is allowed to revoke her consent. That’s what self-ownership means.

However, there are limits.

Suppose that the couple are having sex, and the woman thinks in her own mind, “I no longer want to do this”, but neglects to say anything to her partner. Legally, she isn’t allowed to simply shoot him without having first informed him.

Similarly, if she decides she no longer wants to be having sex, tells the man in no uncertain terms that she has revoked her consent, and then shoots him just as she finishes the last word of her command that he stop, she’s still probably going to jail for murder.

Is her right of self-ownership being curtailed? Perhaps. But the bottom line is that, while she has the right to evict an invading sexual partner from her body, and she even has the right to do so after having originally consented to the act, she has to accommodate the realities of that partner. If she doesn’t give her partner the opportunity to comply before she proceeds directly to violence, she’s shouldn’t be protected under the law.

Here’s an interesting thought experiment. Suppose a couple are having sex. The man is on top, and is very large or heavy. Sometime during the act, he passes out, thereby trapping the smaller woman underneath. Shortly thereafter, the woman decides that she would like to revoke her consent. She yells at the man to get off her, and he doesn’t, because he is incapacitated.

Does she have the right to grab the handgun off her nightstand and shoot her partner? After all, she has revoked her consent, he is invading her body, she has informed him that consent has been revoked, and yet he persists. Or at least, he doesn’t leave.

I don’t think many juries should find this woman innocent. The man is incapacitated. He is incapable of complying with her request.

In the examples above, the woman always owns herself. She gets to decide who gets to be in her body and for how long. She gets to change her mind. She can use deadly force to make her partner submit to her self-ownership.

But there are limits, because the rights of her partner must also be considered.

It turns out that our government places limits on most of our rights. We have the right to free speech, but we cannot yell “Fire” in a crowded theater. We have the right to keep and bear arms, but only if we’re a certain age. We have the right to be free from unwarranted searches and seizures – but not if we’re too close to a US border checkpoint.

It is important that Americans continue to wrestle with questions of how to protect our individual rights while still running a workable society. Irrespective of what you think of each of these limits, thus far, each of our different rights have all had limits placed on them.

It’s not clear to me then, why a vocal segment of abortion advocates think abortion should be an unlimited right, and that any government oversight or restriction must be challenged in court. No other right works this way, not even self-ownership, the actual right that abortion is derived from.

What do I mean by advocacy of an “unlimited” right? I mean the propensity for abortion supporters to oppose any restriction whatsoever of abortion, irrespective of any societal balancing act that the legislature tries to put forward to deal with rights conflicts.

For instance, the abortion lobby bitterly fought the Partial Birth Abortion Ban Act. President Clinton vetoed the federal law twice, and President Obama opposed it as well. President Bush signed the law in 2003, so Planned Parenthood and the National Abortion Federation challenged the law in multiple subsequent lawsuits. The Supreme Court ultimately upheld the law in 2007.
What egregious violation of maternal self-ownership does this Act dump upon women?

Basically, it says that if you are going to kill a viable baby, you can’t half-way deliver it and then suck its brains out while it is still alive. At minimum, you need to humanely kill the baby in utero first.

This law, in effect, says that you have to treat human babies almost as well as the law requires that you treat dogs and cats. Yet the abortion industry bitterly opposed it.

Given the barbaric nature of PBAs, and the lack of documented cases of medical necessity, a legal restriction on the practice seems like a reasonable limit on the self-ownership rights of the mother, one that comes from acknowledging the self-ownership of the baby. Yes, the baby is still getting killed, but it’s not getting partially delivered and then mutilated.

Another restriction that legislatures have placed on abortion relates to minors. Each state has slightly different laws, but in general, many states require that a minor who wishes to receive an abortion must have her parents’ consent, or more minimally, has to have informed her parents.

These laws can be justified from two different perspectives.

First, as was discussed last time, children are not legally full and complete stewards of their own rights. Given that abortion is an invasive medical procedure, and that it is emotionally damaging for many women, it seems plausible that the legal guardian of the young woman who is seeking an abortion should be involved.

The apparent position of abortion advocates who oppose parental notification laws is that while a young woman doesn’t have the right to consent to the actual sex that caused the pregnancy, she absolutely has the unlimited right to consent to having an abortion. This is self-evidently contradictory, and completely discounts the role of legal guardians in protecting the interests of children – both the teen mother and the unborn baby.

Secondly, nearly everyone would agree that having an abortion is more medically and more ethically impactful than getting a tattoo. Yet nearly every state has laws that restrict the circumstances under which minors can get tattoos. Some states ban tattooing minors entirely.

How is it that abortion absolutists want providing abortions to children to be less regulated than providing them with tattoos?

Of course, it is possible that certain provisions of a specific parental consent law or parental notification law may be problematic, and on such grounds, provisions of those laws should be challenged. However, it should be clear that there is no rational basis for a universal and unrestricted “right” to have an abortion. It should be clear that self-ownership – the underlying right on which the abortion issue hinges – is already limited by our government – just like all of our other rights.

Critically, it should be clear that since abortion is a conflict of rights, and that when an abortion happens, one of those individuals is killed, that this is an appropriate area for government to intervene by establishing limits.

What limits are in place today? What difficulties do they present? We’ll discuss those in a future article.