NB:  I am fervently pro-choice.  I want abortion to be safe and legal, I want laws to that effect in all 50 states and federally, and I would absolutely support a constitutional amendment explicitly recognizing the right of bodily autonomy.  Read on at your own risk.

A few nights ago I wound up inadvertently pissing a lot of my friends off by ruminating a bit on how technology might render any law prohibiting abortion irrelevant.  Admittedly I was pretty short in my posting and a bit flippant in my tone, and so I was basically accused of wanting to bring back coat hangers.  They were also pissed when I drew equivalencies between the right to bear arms and the right to an abortion.

However, after spending considerable time reading and writing about the leaked Supreme Court decision, I think the ideas are worth expanding on, and writing about more seriously.  So…

One of the biggest ongoing debates in the libertarian movement has always been how do we get from here-a very statist and imperfect world-to there, a world of individual liberty and free, autonomous individuals voluntarily interacting with each other.  Usually the ideas fall into three main camps:  working through the political system (aka the Libertarian Party, or co-opting one of the majors), armed revolt or waiting for things to collapse on their own (what I tend to call the “nihilist libertarian” school of thought), and building competing institutions, such as private education, private security or arbitration firms, alternative currency etc.  Related to this debate is how much defiance of bad law is morally acceptable and practical-civil disobedience in the now, not just in the 1950s and 60s.  History does seem to show that laws that are unenforceable eventually change.  Laws that are resisted change as well.  Prohibition is the classic example, but so too the Jim Crow laws that mandated segregation.  The draft during the Vietnam era.  Laws prohibiting pornography, or dissemination of birth control information.  All of these eventually fell because people refused to comply with them, often actively resisted them, and eventually the law had no choice but to catch up.

What about today?  Let’s start with guns.  There were homebrew guns long before 3d printers (Philip Luty wrote one of the other famous banned books, for example), but 3d printing technology has definitely accelerated the process.  In 2013, the Liberator .380 was a single shot pistol that fell apart after 8-10 shots.  Less than 10 years later the FGC-9 has survived hundreds and even thousands of rounds, and NaviGoBoom’s Amigo Grande has pushed 3d printed weapons into rifle calibers.  Despite the best efforts of gun grabbers, technology may soon render any firearm law irrelevant and push firearms construction and ownership well outside the reach of the state.  The right to bear arms may well wind up guaranteed by entrepreneurs and hackers rather than laws, even if both is ideal.

What about abortion though?  What’s the connection with guns?  The first is a simple question of natural rights.  For those of us that are pro-choice (and I understand that not everyone is), the right to abortion is about bodily autonomy.  Even if you’re pro-life I don’t think the idea of bodily autonomy as a natural right should be in question, contra Alito and company.  You either own yourself or you don’t-and the right of self defense, the right to bear arms is how you guarantee the right of bodily autonomy.  Much as with the other natural rights, it is the insurance policy, and the last check and balance. 

While armed protests, like jury and state nullification, absolutely have a mixed record in history, they have been used to be positive ends.  The penny auctions of the 1930s and the armed aspects of the civil rights movement, along with the Black Panthers immediately come to mind.  The fact that the Portland protests, which while they didn’t have guns, but did feature a lot more fighting back, were able to keep the cops bottled up and effectively useless for weeks.  Why not have armed supporters standing, Black Panther style, outside of abortion clinics to guard patients and staff?  Lefties, if you believe in bodily autonomy then it’s worth defending-not just with words, but with force.  And if the Supreme Court gets guns as right as they got abortion wrong, which is likely, then suddenly that’s going to be much more possible. 

There’s also another possible connection.  In addition to being a small scale pundit, I’m also a geek, and as such I think a lot about the future, and what could come to pass.  3D printed guns represent a decentralization of technology, as well as a resulting decentralization of power.  Similar efforts have been underway for a long time, in computing (such as Linux and just assembling one’s own system), in farming, especially the urban farming movement, and even in other industries as people rediscover old skills and the joy or necessity of making one’s own stuff. 

Medical technology has also been starting to decentralize over the past 20ish years as well.

Obviously since things are much more complicated the pace has been a lot slower. But you’ve seen groups like the 4 Thieves Vinegar Collective emerge. Genome@home and Folding@home have used distributed computing to help with genetics research.  3D printing has made some inroads in prosthetics and other medical devices.  Which leads to the question that, admittedly sans enough surrounding context, greatly bothered many of my friends:  we’ve had abortion recipes going back to the ancient Greeks (and Ben Franklin!).  Even before Roe v. Wade abortion was widely available, whether legally or illegally, especially if you had money.  Given this fact and technological trends, I wonder if enterprising young biohackers will figure out and publish how to make medical grade recipes, or how to 3d print an easy and safe abortion device that will make any laws moot. Can the medical equivalent of Defense Distributed or the gatalog be made?  And if so, why not envision a world where abortion becomes a truly private decision, not because of the return of the coat hanger, but because what can be done at home is just as safe and effective as any Planned Parenthood visit?

Let me once again be 100% clear:  a world that requires armed protestors at abortion clinics, or diy solutions that hide from the state is NOT my first choice.  Women and trans folk with uteri already face a difficult enough decision when considering an abortion, they sure as hell shouldn’t have the state bearing down on them as well  Abortion should be safe and legal as a function of respecting bodily autonomy, and I believe that we should continue fighting through the political process to make sure that continues.  BUT…a world where the edicts of the state didn’t matter because the private citizenry had found a way around them, more or less guaranteeing access for anyone that needed the service…it’s a poor second choice, but it does seem to be the next best thing.  And history has shown that people, over time, are often remarkably good about getting around bad ideas, especially bad ideas turned into bad laws.

 

Part 3 of an ongoing series of inside baseball stuff about the Libertarian Party.  I’m not happy about things.  See part 1 and part 2.

So. 

After much gnashing of teeth, accusations and counter accusations, (see, for example, here and here), and long trips to Reno for many people, it’s over.  The Libertarian Party Mises Caucus made essentially a clean sweep of party officers and platform revisions.  What all happened?

Well, simply put, they had the numbers.  Thomas Knapp alleges parliamentary shenanigans and an illegitimate convention; he’s got a lot more credibility as a longtime member of national committees to comment on such things.  From my perspective it is a fiat acompli, and so the question then becomes what does this all mean for the future of the LP? 

Here is a pdf of the MC’s action plan, which seems to have been followed almost to the letter.

Honestly…most of the proposed changes either were good, or not terrible, with a few exceptions.  Most of the parliamentary reforms proposed were fine, and LP conventions are legendary for their inefficiency, so making them go faster is not a bad goal in and of itself.  I do take issue with raising the delegate count for presidential and vice presidential nominees; it seems to be targeted directly at people like Vermin Supreme, and quite frankly reeks of the kind of exclusionary ballot access restrictions we’re perpetually railing against.  Yes, we have some oddball candidates, but part of what makes us special as a party is allowing for a lot of different voices.  To say nothing of the fact that you never know where the next Spike Cohen is going to come from-the joke candidate that quickly became the best serious public speaker the libertarian movement has had in decades.

Now…on to the platform change recommendations.  The good?  Aggression, foreign policy, migration, free movement of goods, firearms accessories, electoral reform, “if you’re the age of majority you get all your rights”, etc.  I’ll gladly admit that a lot of the language is better, and makes for nice updates.  I do, however, take significant issue with three recommendations:

  • Deleting the abortion plank:  yes, abortion is absolutely a contentious as hell issue among libertarians.  But you know what?  It’s an issue that matters to a lot of people, including libertarians, and new voters will absolutely be looking for some kind of official statement on the matter.  And the old language as written represented probably the best, and maybe even only possible compromise on the issue.  While some commentators have pointed to 4.0, “Our silence about any other particular government law, regulation, ordinance, directive, edict, control, regulatory agency, activity, or machination, should not be construed to imply approval” or the plank on medical freedom as still covering things, it’s still weak tea on a subject that should be addressed by a national political party.
  • Deletion of “We condemn bigotry as irrational and repugnant”.  Yeah…the stated rationale for this, “One of the major goals of the Mises Caucus is to make the LP appealing to the wider liberty movement that is largely not currently here with us. That movement strongly rejects wokism and the word games associated with it. This along with the deletion of the abortion plank will display that there are serious cultural changes in the party that are more representative of that movement” is gross, and flat out ignorant.  MC people, along with conservatives generally (who are not libertarians!), are so suspicious of anything “woke” that a)it regularly blinds them to wisdom from any camp other than their own (maybe read this, or my takes on similar ideas?), and b)it blinds them to terrible behavior in their own camp.  To elaborate a bit from my twitter post, we can defend someone’s right to hold & express horrible, idiotic, repugnant views while still choosing to condemn those views as horrible, idiotic, & repugnant, & refusing to have anything to do with the holders of said views. And really, who the hell are you trying to appeal to that wouldn’t think bigotry is irrational and repugnant?  Where are you trying to pull people from, MC?  This REALLY shouldn’t be a difficult concept.  But in certain quarters there’s such a fear of anything labeled “woke” that a lot of you forgot to discriminate against assholes, and somehow forgot that doing so (such as in this story that floats around the internet regularly), as long as you don’t use the force of the state, does NOT make you anti-liberty.  Instead, the fear of the woke has let a holocaust denier and an actual groomer into high esteem in the MC’s ranks.  Likewise,
  • Recommending against the amendment to plank 1.4 that explicitly recognizes individuals’ right to determine their own issue of gender expression.  Everything I said above applies, with the rational for no being “an issue of biology” and more anti-woke rambling.  This is both completely ignorant of biology and science, as well in direct conflict of the LP’s long history with LGBTQ rights.  Spoiler alert:  we were always in favor, we ran an out gay man as our first presidential candidate in 1972, and while we of course would much rather see the originally racist government marriage licensing regimes abolished altogether, we were in favor of marriage equality LONG before it was cool.  Furthermore, it would be one thing if trans people were simply not liked by some people.  But even though things are better now than they were, trans people are still under considerable assault from the state, in the form of bathroom bills, bans on care for trans youth, bans on trans athletes, and continued allowance of “trans panic” defenses.  People are facing the full face of state oppression and even being killed for expressing their individuality, and a party that claims to be founded on the sanctity of the individual damn well should be speaking up for them.

I’ve already renounced my support for the Libertarian Party until things change, and announced myself as politically homeless for the first time in my adult life.  Was it worth it over three bad proposals and some terrible people?  Absolutely.  The three bad proposals are very bad, and represent rejection of core libertarian values and core support for individuality.  And the terrible people?  Wouldn’t we-haven’t we-jumped down the throats of major party politicians for the exact same things Borysenko and Woods have done?  Wouldn’t we be furious if a Kennedy had said it was ok to get a woman drunk to sleep with her?  And wouldn’t we-haven’t we-brought up that thing at every opportunity to our major party supporting friends, acquaintances, and audiences?  How dare we not hold ourselves to the same standards?

So, Mises Caucus, the ship is yours.  Maybe I’m wrong.  Maybe you’ll nominate Spike Cohen for president, get a bunch of city council members elected that repeal zoning laws, business licenses, and deprioritize the drug war, fully audit the LP books, come to your senses about trans people, and keep the David Duke types out.  Maybe.

But I’m not holding my breath.

 

 

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.