A few days ago a draft Supreme Court decision on abortion, authored by Samuel Alito, leaked.  The reactions are…exactly what you’d expect.  Pro-choice folks are up in arms and out in the streets, pro-lifers are cheering, libertarians are split, and lots of smarmy accusations of hypocrisy are flying through the virtual air.

To fully examine this issue, first a general discussion of libertarian thoughts on abortion is needed, then examining the various charges of hypocrisy, and then looking at the draft itself.  NB:  I am fervently pro-choice, and remain so, but I will do my best to be fair to the pro-life arguments.

Left leaning friends of mine have asked me more than once, “why aren’t libertarians more vocal about abortion?”.  The answer is that to libertarians, who are generally used to seeing issues as very clearly right or wrong, it’s a complicated question.  Libertarianism is a philosophy that has as its fundamental unit of value the sanctity of the individual.  Every bit of our political and legal morality is (at least theoretically) based on that.  Which means, however, that where the individual begins is the breaking point of the philosophy.  At the moment science can’t clearly tell us where life begins, and arguments about viability are very easily countered by “absent modern medical intervention, this fetus would not be viable”.  Rothbard said that the mother’s property right to her own body trumps the fetus (an idea recently advanced by many pro-choice folks), to my idea that the mother’s right to control her actual life trumps the fetus’ right to potential for life.  There are also, of course, a number of arguments from practicality that are not strictly libertarian but worthy of consideration, including long term impacts of unwanted pregnancies, health consequences, a dysfunctional adoption system, and the surprising correlation between the beginnings of fully legal abortion and the drop in crime.

The pro-life arguments are that the since we don’t know where the individual begins, it’s better to err on the side of caution, or religious arguments.  Pro-life people also make arguments from practicality, especially health and psychological effects of abortion, as well as the perils of decoupling sex from consequences.

The Libertarian Party has typically come to what I feel is the best possible compromise on an essentially intractable issue, which is that abortion should be kept 100% safe and legal, but no tax dollars should ever be used to pay for one.  Either way though, it’s complicated, and I still think that while some pro-choicers are Neo-Malthusian whackjobs, and some pro-lifers are patriarchal religious nutjobs interested only in controlling women, generally speaking people of good conscience can hold views on both sides of the issue.

Next, let’s look at some of those hypocrisy charges.  The ones I’ve seen pop up most often have been:

• Nice to see “my body, my choice” make a comeback after two years of mask and vax mandates.  Not quite the own you think it is, folks.  You can argue the science and legality of those mandates all you want (and essentially the entirety of my social media feeds for the past two years has been two camps of very smart people, with a lot of numbers, calling the other side bastards and idiots), but an airborne virus can spread to others in a way an abortion can’t.  And not protecting oneself and then going out into places with lots of people could arguably be negligence.  It’s the difference between smoking and drinking-neither is good for you, but as far as I know no one’s ever gotten cirrhosis of the liver from secondhand beer.
• Look at how quickly the left abandons “birthing persons!” in favor of “only women should make decisions about women’s bodies!”.  Yeah, transphobic assholes can @#^! all the way right off.  Check here for some science.  But pro-choice folks, this is one time where the inclusive language really would help show some moral consistency, even if it’s just “women and other birthing persons”, or “women and everyone else with a uterus”.
• Even if the fetus is a life, the mother’s bodily autonomy trumps all, in much more detail and more articulately here.  This is the argument that makes the most sense to me, and very clearly (though almost certainly unintentionally) echoes Rothbard’s argument from decades earlier.  But here’s the thing-this argument backs directly into the libertarian argument about coercison, extortion, and bodily autonomy.  If you believe that someone cannot be coerced to sacrifice their body to save another, that they have no legal obligation to do so independent of any moral obligation, then consequently you have to believe that no one can be forced to pay for the expansion of someone’s business, or their home, or their healthcare.  The entire statist/socialist conceit falls apart if you truly embrace bodily autonomy.

So let’s look at the decision itself.  Spoiler alert:  it’s mostly terrible, even if you are pro-life.  Also disclaimer:  I am not a lawyer, I do not play one on tv, I am not bar certified in any state, this is not legal or financial advice, discontinue use if rash persists after four weeks.

The crux of the decision, as I read it, rests on two main parts:  first, that Roe was badly decided because it was an incoherent decision, including usurping the legislature by legislating from the bench, and second, that because the right to abortion is not “deeply rooted in American tradition”, and not enumerated in the constitution.

The only part of that I have some concurrence with is the idea that Roe was legislating from the bench.  At least as referenced in this decision, Roe did not come out and say unequivocally abortion is a right or abortion isn’t a right, rather it said that abortion is a right here, but is only kind of a right here, and isn’t a right here.  A proper decision should have either gone all the way in one direction or the other, or punted completely back to the states by saying it was absolutely not a matter for the federal government.  Saying what’s left is a bit of a mess is a fair point, and the decision does cite multiple pro-choice advocates who were never satisfied with the reasoning of Roe.  Aside from pointing out that stare decisis is not necessarily permanent and that the court has screwed up more than a few times, that’s about all it gets right.

Throughout the decision the argument rests on multiple appeals to the common law tradition, but does not recognize that law, like democracy, is not an ends unto itself.  It is a means to an end, that end being liberty.  Yes, the English that became the first Americans brought with them English common law, and that is important, but they were animated by the spirit of natural rights theory.  The US constitution is far more the embodiment of John Locke than William Blackstone, especially the Bill Of Rights-hence the “chains of the Constitution” conceived of by Jefferson.  While it’s true that there are limits to what is implied rather than simply written in the text, especially as concerns negative liberty vs. positive liberty, but almost all the debates of the founding era, and especially the plain text of the ninth and tenth amendments, indicate very strongly that the founders wanted the government to err in the direction of more liberty, not less.

Not a word about either of those two amendments makes it into the decision.

Though to its credit it does recognize that the fourteenth amendment incorporates most (if not all) rights in the federal constitution into state and local documents as well, prohibiting any level of government from impinging on fundamental liberties.

First, a practical matter.  Towards the end of the decision, starting on page 59, it raises the concern of reliance, ie court decisions need to remain stable so that people can make decisions based on known law, unless of course there’s a very good reason to overturn said law.  The decision finds traditional reliance interests uncompelling, because abortion is generally an unplanned decision.  They also found a more vague reliance test lacking as well.

I do not.  Thanks to the sexual revolution (and an expanding idea of bodily autonomy; see below) Americans are generally able to plan when they reproduce and when they don’t.  Yes, much of this is easy access to cheap, reliable, and legal contraception, but some of it is also the knowledge that unwanted pregnancies can be terminated if necessary.  This is an, if not essential, certainly very important part of modern life, and one that depends on reliance on established law, ie a right to abortion.  The opinion gets this wrong. 

More importantly liberty across American history properly evolves in two ways, neither of which the decision recognizes.  The founders recognized that new technologies and new manners of living would arise that they could not entirely predict, so they left mechanisms in place to give people the liberty to adapt to these new circumstances.  First, contra the decision, rights enumerated in the constitution do imply other rights, very easily.  The first amendment in toto is all about freedom of conscience and freedom of thought, and the amendments that deal with criminal jurisprudence clearly guarantee a freedom from coercion except as part of punishment for a crime for which one has been duly convicted.  It’s a very simple leap from here to freedom of marriage, and to freedom from buying a product one finds repugnant or unnecessary.  The enumerated right to being secure in one’s papers very clearly also guarantees being secure from government intrusion in one’s digital papers. 

The second major path of evolution is to a much more expansive view of who is worthy of fundamental rights-of who is human.  During the times cited in the decision when abortion was illegal, women were viewed as second class citizens at best.  They were not thought of as fully human, and not deserving of full bodily autonomy, thus making citations of laws of this time concerning them suspect at best.  Perhaps this is assuming too much-after all, I grant above that pro-life people can believe just as much from good conscience as pro-life-but the historical context has to be examined here.  Failure to do so, and simply listing the history without a broader context of womens’ legal status in the 1800s, was a severe failure of logic.

And then there’s page 32.  “‘These 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…None of these rights has any claim to being deeply rooted in history.”

Bullshit.

Before it was rephrased as “life, liberty, and the pursuit of happiness”, John Locke’s rallying cry was “life, liberty, and property”.  In his Second Treatise On Government, he states that “every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.”  The concept of liberty that animates the United States was all about bodily autonomy.  The enumeration of the right of assembly, the right of security of one’s person and effects, and the constitution’s original text creating a free trade and free travel zone in the 13 colonies all add up to liberty of the individual in their own body.  And, in 200 or so years, it’s reasonable to assume that we can and should be much more ecumenical about whose bodies are recognized as autonomous and inviolable.  Furthermore, yes, Justice Alito and company, the implication is absolutely that there is a fundamental right to drug use, prostitution, and the like-as there should be.  The laws prohibiting such things between consenting adults are blatantly unconstitutional at the federal level under the tenth amendment, and the ninth amendment, in concurrence with the first amendment and others above, should very easily guarantee cognitive freedom and freedom of commerce-in short, bodily autonomy. 

Not coincidentally, this is why even pro-life libertarians should be up in arms over this decision.  It scoffs at any concept of rights in the US that would allow for real liberty, and takes such a narrow view of the Bill Of Rights as to completely gut whatever is left of the ninth and tenth amendments.

If this decision had come out unequivocally one way or the other (as Roe probably should have) it would have been required to show much better reasoning.  Instead it punts in the worst way possible, in such a way that not only denies bodily autonomy for women (and others with uteri), but bodily autonomy for all and potentially severely narrows the potential for personal liberty going forward.  It is a terrible decision that ignores history, ignores the plain text of the constitution, and ignores basic principles of natural law.  If any of this reasoning makes it to the final decision it will be terrible for everyone.