Tag Archives: property

Correcting the Terminology of Abortion: Parasites and Trespassers Defined, Part 2

[Editor’s Note: This is the second part of an article which was originally published in one piece. None of the content has been changed, except to facilitate the split. See here to view Part 1.

Section II: Trespassing

A Legal View of Trespass[i]

Murray Rothbard[ii], a major contributor to modern libertarian thought, stresses the “legality” of abortion in the quote shown below. He appeals to law to validate his claim that a woman has an absolute right to have an abortion.

“What we are trying to establish here is not the morality of abortion (which may or may not be moral on other grounds), but its legality, i.e., the absolute right of the mother to have an abortion”[iii]

Well, all right, then. Let’s look at this from a legal perspective. As you will see below, I argue that a fetus is not a trespasser based on the legal aspect of what it means to be a trespasser. I state firmly and unequivocally that a fetus CANNOT be a trespasser because there is no legal justification for the attribute. Trespassing is a criminal act, punishable by law! A fetus cannot be tried and convicted, by law, for the crime of trespass, therefore, a fetus is not a trespasser.

I will go further. Saddling a fetus with the pejorative label of “trespasser” or “parasite” is nothing more than an attempt to justify the pro-abortion position. It is in the same class as calling the fetus “a clump of cells”, “fetal tissue”, “product of conception”, “blob of protoplasm”, or “uterine content” and seeks to obfuscate the real meaning of what an abortion is–the deliberate killing of an innocent, unborn human being.

Dictionary definitions of ‘trespasser’ can be seen here.[iv]

“One who has committed trespass; one who unlawfully enters or intrudes upon another’s land, or unlawfully and forcibly takes another’s personal property.”

and here[v].

“In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the trespasser, so long as the trespass is intentional.”

In these descriptions, the emphasis is on unlawful entry, forceful taking, and intentional action. This is about as far from a newly conceived zygote or a four-month old fetus as anything could get.

Let’s break this down. Trespassing is a criminal act, prohibited by law and punishable under law. It is embedded into the legal code. Trespassing may be done willfully, ignorantly, or mistakenly, but it always involves the crossing of a previously established boundary. The trespasser always intrudes on someone else’s space (property) from some other location or position. If there is no transgression of boundaries, there is no trespass.

To intrude on someone’s property by mistake or out of ignorance should not be (and usually is not) considered criminal unless damage is done to the property. More likely than not, trespassers who are confronted will remove themselves promptly, with the knowledge that behavior of that sort will not be tolerated. Trespassers who offer a sincere apology will probably be allowed to vacate the property without any further trouble and that will be the end of it. “A soft answer turns away wrath, but grievous words stir up anger.” (Proverbs 15:1) An honest, contrite confession of a mistake or lack of knowledge will go a long way in defusing a potentially violent situation.

An example of this might be that a young woman from the city visits her uncle, who lives in a heavily forested part of the country. While there, she decides to venture out and explore the wilderness. Since there are no fences or signs, she has no idea that she has left her uncle’s property and is now walking through his neighbor’s forest. The neighbor sees her, confronts her, and warns her that she is trespassing and must remove herself from the property. In response to this, she confesses her mistake, asks for direction back to her uncle’s place, and leaves without further ado.

Under this scenario, the neighbor whose property boundary was violated would likely do nothing more, unless he called the uncle and asked him to inform the niece of the property lines. Legally, he probably would not be able to make a case for the arrest and trial of a young woman who had simply made a mistake.

Intentional trespass, on the other hand, requires deliberate action and knowledge. It is done with the understanding that a boundary has been placed around the property by the rightful owner. The trespasser would have to consciously violate that boundary without regard for the will of the owner. Such a violation could and might result in a penalty being assessed against the trespasser, if the property owner was inclined to push the issue.

Suppose that this same young woman, while walking through the forest, came to a place where there was a four strand, barbed wire fence, arrow-straight and fiddle-string tight. In addition, there was a “No Trespassing” sign fastened to a fence post at fifty-foot intervals. There could be no mistaking of the intent. This would be a clear indication that she was not allowed to go any further, under penalty of law. The choice then would be hers–to obey the injunction and turn back or to willfully climb over the fence in a deliberate act of trespass, which would be considered criminal if discovered and prosecuted.

Criminal trespass cannot happen in the case of pregnancy, because the (supposed, alleged) violator, the fetus, was conceived and has always existed in the womb[vi]. It originated from within the womb. It has never been anywhere else. It has never crossed any boundary. How can something, anything, be charged with trespassing if it began inside the boundaries and never crossed them? The fetus may be unwanted, but it is not a trespasser. Call it a noxious weed if you wish, but don’t call it a trespasser. Assert your right to remove weeds from your “lawn”, but don’t base your claim on trespass law.

Criminal prosecution usually takes the form of arrest, charge, hearing/trial, verdict, and penalty/release, or some variation of this process. Every person who is arrested for a crime should be advised of the charge(s) against him. Not only that, but he should be expected to understand why he has been charged and what the penalty might be if he is found guilty. Moreover, he should have a right to counsel and the opportunity to defend himself. In addition, he should be able to appeal his case to a higher authority. Or at least this is the way it’s supposed to work.

Trespass is a legal concept. It must be handled in a legal manner. In order to prove a case of trespass, these steps (at a minimum) must be followed:

1. Charge or accusation

2. Hearing or trial

3. Evidence presented

4. Verdict pronounced

5. Penalty imposed or case dismissed.

In a case of (supposed) fetal trespass against a woman, this will not be the course of action. Consider:

1. No charges or accusations have ever been (nor will ever be) brought against the “offender”.[vii] If they were, it would not be able to hear nor understand them.

2. There is no trial or hearing in which the fetus is given the opportunity to defend itself nor is anyone else appointed to act on its behalf. In fact, if someone else did make an attempt to speak for it, he could be charged[viii] with a crime himself.

3. The only evidence presented at all is that the woman is known to be pregnant. There is no evidence presented to prove that the fetus committed any “crime” of trespass.

4. The verdict is not based on objective proof beyond a shadow of doubt, but solely on the subjective decision of the woman and anyone around her who might benefit from the abortion, either financially or emotionally.

5. The penalty is carried out–execution–without any possibility of appeal.

This sort of proceeding reminds me of the poem, A Mouse’s Tale[ix] in Lewis Carroll’s tale, Alice in Wonderland[x].

“…I’ll be judge, I’ll be jury, said cunning old Fury. I’ll try the whole cause and condemn you to death.”

Fetal trespass is a misnomer. There is no law directly forbidding a fetus to reside in a womb or compelling it to vacate the premises. There is no law which orders a fetus to act in a certain manner regarding the violation of property boundaries. None. Nada. Nyet. Nein. There never will be. It would be the absolute height of foolishness to forbid a fetus from trespassing, at least as much as it would be to forbid a dog from pooping on a neighbor’s front lawn.

Identifying a fetus as a trespasser is dissembling. It is incorrect terminology. In today’s social and political environment, it would be equivalent to “fake news.” Calling something what it is not in order to justify a viewpoint is not only false and misleading, it is morally reprehensible. It is irresponsible at best, deadly at worst.

The counter-argument might be presented that, since the fetus is not a person[xi], legally correct criminal proceedings really don’t apply. Even in cases of non-persons becoming trespassers, however, the law still operates in the same way. Trespassing is a criminal act and must be treated that way.

Domestic animals, dogs, for instance, can and do leave their owner’s property and trespass on someone else’s. Sometimes they poop on front lawns, which is a nuisance. Sometimes they are more aggressive, e.g., killing a neighbor’s sheep. A tree can (and sometimes does) fall across a property boundary and cause damage, for example, if it crashes through a neighbor’s garage roof.

In the case of the tree falling, someone would cut it up, clean it up, and remove it from the site. If you wanted to imagine it this way, the tree would be “punished” for its trespass.

In the case of the sheep-killing dog, the dog might be shot by the shepherd, thus “paying” for its crime. It might be imprisoned (kenneled, chained) by its owner to keep it from running wild and causing more damage. Pre-crime[xii], so to speak.

However, no matter how much cases like these can be twisted and contorted, the owner of the dog or the tree is, legally speaking, ultimately the one who is “charged” with trespass and is forced (restitution, insurance, etc.) to make things right. Dogs and trees, while able to “trespass” and cause damage, are not held legally liable. Their owners are.

Dogs and trees can trespass on a person’s property, but they do not understand that they do so. To them, it is a completely natural act. They know nothing else. It is futile to legally charge them with trespass, so we take the more rational step of charging their owner, requiring that he make the situation right and compensating the victim for damages caused.

Some might claim that I have blown my case. If dogs and trees can trespass unknowingly, then so too can a fetus. This assertion collapses, however, under the same point that I made earlier–trespass cannot occur without the violation of a boundary. While dogs and trees can and do violate property boundaries, the fetus never has. Dogs and trees came across the line from some other place. The fetus arrived from nowhere and, from the very beginning, has always existed on the property.

The whole process from sexual intercourse to the realization that a woman is pregnant can be roughly compared to the appearance of alien spaceships from (seemingly) nowhere into Earth’s space without warning.

  1. We broadcast and blast radio waves into the universe non-stop, sometimes with the express purpose of catching the attention of other-worldly entities—sexual intercourse.
  2. We know that “intercourse” of this nature might result in the appearance of a spaceship into Earth’s space and time–possibility of conception and pregnancy.
  3. We understand that this appearance might have repercussions and possibly even prove fatal—pregnancy which adversely affects the health and well-being of the woman.
  4. We also understand that the appearance might produce future benefits which we can only imagine at the time—interaction with the new-born baby.
  5. In the event that an alien spaceship does appear, we have to make a decision either to live with it, cooperate with it, and benefit from its presence, or to use violence to blast it out of the sky and justify that violence in an attempt to maintain the life we prefer and have become accustomed to, regardless of the death and damage that might ensue–to abort or not to abort.

The one discrepancy in this comparison is that alien spaceships, regardless of where they originate, come from another place within the universe, or for those who are really into it, from some other parallel universe. Consequently, they can, according to our code of justice, legally be charged with criminal trespass, found guilty, and “punished”. After all, it is our space! How well that might work out remains to be seen.

Unborn fetuses (and this is the pivot of my argument) do not and never have come from another location. They appear out of nowhere. They do not exist before they arrive. They spring from nothing. They are “created” within the womb by the simple joining of an egg cell and a sperm cell. Before this union, there is nothing but two individual cells. After that, there is a new human being, who has committed no crime and is completely innocent of any charge or accusation against it.

Conclusion

If the unborn fetus is not a parasite nor a trespasser, then what is it? There is only one answer left–a unique, personal, human being which has been placed, through no action, will, or desire of its own, in a vulnerable, dangerous position. It deserves all the protection that we can give it, if we are so inclined. Unfortunately, quite often, we are so NOT inclined, consequently, it ends up dead.

Greg Koukl has written what I consider to be the perfect sentiment to end this article. I couldn’t have said it any better.

“A child is not an invader, though, a parasite living off his mother. A mother’s womb is the baby’s natural environment…One trespasses when he’s not in his rightful place, but a baby developing in the womb belongs there.” [xiii]


[i] I am not a legal scholar, judge, nor lawyer. I could be entirely wrong about this whole train of thought, however, I am willing to stick my neck out and stand according to what I do know and believe to be true. In this sense, I am relying on common sense and moral justice as my guides.

[ii] https://mises.org/profile/murray-n-rothbard

[iii] Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, ©1998), 98.

[iv] https://thelawdictionary.org/trespasser/

[v] https://en.wikipedia.org/wiki/Trespasser

[vi] I use the term “womb” to include the entire reproductive system of the female body.

[vii] Martin Armstrong writes this which closely parallels what I have outlined above. “In law school, they teach you that the Due Process of Law comes from the Bible. God already knew what happened between Cain and Able. He still granted him the Due Process of Law to (1) summon him providing notice and (2) the right to be heard. We no longer allow Due Process of Law. We presume guilt and condemn people without trial.”

[viii] https://www.lifenews.com/2017/05/15/pro-lifers-arrested-for-blocking-entrance-to-the-last-abortion-clinic-in-kentucky/

[ix] I hadn’t read this poem in close to fifty years until I started researching this article, but I still remembered most of it. “Fury said to a mouse that he met in the house…” I wish I could have met Lewis Carroll.

https://en.wikipedia.org/wiki/Mouse_(Alice%27s_Adventures_in_Wonderland)

[x] https://en.wikipedia.org/wiki/Alice’s_Adventures_in_Wonderland#Publication_history

[xi] For my view on this, see here and here.

[xii] https://en.wikipedia.org/wiki/Pre-crime

[xiii] https://www.str.org/articles/unstringing-the-violinist#.XEp7os1lBPZ

Whose Body is it Anyway? A Property Question of Abortion Rights

One of the most widely used arguments to defend a woman’s “right” to kill her unborn child is that she owns her own body and can do what she wants with it. No one has any authority to impose restrictions on her behavior, so long as she is not harming any other person.

Yes, yes, I know. An unborn baby is a person and women who abort their unborn babies ARE harming other people, but it is not my intention to discuss the person-hood of an unborn child in this article. Rather, I want to explore the philosophical question of the ownership of the human body—irrespective of sex. Male or female is irrelevant. To whom do I belong? That is a question everyone must answer.

“…how can we defend the mother’s right to kill the fetus?

Simple. She owns her own body, and the unwanted fetus growing within it is in effect a trespasser or parasite. This may sound harsh, but when the property rights in question are thoroughly analyzed, it is the only possible conclusion that may be reached.”[i]–Walter Block and Roy Whitehead

If I was asked (I wasn’t) to paraphrase and rewrite the above quote, this is the way it would turn out.

“We can defend a woman’s (mothers don’t act that way) right to kill her unborn child because she owns her body and the unwanted fetus is a trespasser and a parasite. Dastardly things, anyway! Besides, property rights are sacrosanct [ii] so we can reach no other conclusion.”

All I can say about this manner of thinking is that it is abominable and despicable. When “property rights” are the only thing in question, then the end justifies the means and any moral rectitude simply flies out the window.

Who am I? Why am I here? What will happen to me when I die? These are questions which have vexed and perplexed philosophers since people started thinking about things other than how to get and keep their next meal. There are probably just about as many answers as there are philosophers. We ought to also be asking one other question: To whom or to what do I belong? This is a valid question and there are only two possible answers: we belong to ourselves OR we belong to someone/something outside of and beyond ourselves.

If we conclude that a woman belongs to herself, then she also owns herself, every part of herself, including her body and everything in it, over which she exercises full and complete control. No one and nothing can dictate to her what she may or may not do with her body. If a woman owns her body, then there should be no restraints placed on her, so long as she does not initiate aggression against other people who also own their bodies [iii]. If this is true, then the whole argument about abortion is moot, null, void, and utterly useless, deserving to be scrapped. It is a waste of time, energy, and resources–if this is true!

But, is it? Or is there another way of looking at the question? Michael Rozeff puts it this way.

” 3. Property is what belongs to you. It’s circular to say that a person belongs to himself or owns himself. You only seem to become property when you become a slave, partly or wholly, and belong to someone else. Even in that case, they have property in your body, in the product of your labor, but not in YOU. In other words, to resolve this problem of definition and starting point philosophically or religiously, we need to specify what a human being or person IS. What IS this “I”? What is the BEING that “I” am, and that you are? That BEING exists outside the domain of human notions of property. That’s my unprovable assumption or postulate about life and existence.” [iv]

I agree. I brought this up to make the point that no one owns themselves. No one owns their own body. No man, no woman, no exceptions. With nothing more than pure logic, I can make my case using a common libertarian argument.

You and your family live in a nice house on a piece of land which you own. You borrowed money to pay for it, scrimped and saved, did without, and worked side jobs to pay the mortgage, eventually receiving the deed free and clear. It is yours. At least that’s what you think.

One day, while in a discussion with your friend, he points out that you really don’t own the property, you only rent it. He explains that if you don’t pay the taxes which the county determines you should, you will find out within the space of a few years who the real owner is. You will be looking for another place to live and all the effort you have put into this property will accrue to someone else’s benefit.

You will lose your property if you don’t pay the declared property tax, but the fact of the matter is, you can live in the house and control the property, even profit from it, without (much) interference from the county–so long as you pay the tax! Libertarians everywhere understand this argument immediately.

In the case of a woman’s (or man’s) body, there will come a time when your “property” will be taken away from you. There will be no grace period, no time to pay the back taxes, plus costs, plus interest. There will be no extensions. Begging, refusing to consent, and getting angry will not help. Trying to make a deal is an exercise in futility. (Daniel Webster [v], I need help!) As the rock band Kansas [vi] put it, “…all your money won’t another minute buy.” When the Grim Reaper crooks his finger, you will go, with or without warning. Willing or unwilling, it doesn’t matter. Off you go. You are going to die.

If we grasp the point that we don’t own our real estate because it CAN be taken away from us, then we should also understand that we don’t own our bodies because they WILL be taken away. In fact, ownership of real property is a far more feasible concept than ownership of body because the rules concerning taxation can always be changed for the better. At least it’s theoretically possible to change them. People may someday live in a society in which there are no property taxes. About the end of life, however, there is nothing to do except to understand that it is coming and to be ready for it.

We are conceived, we live, we die. Everything that we accumulate in this world will belong to someone else after our death. “Naked I came from my mother’s womb, and naked I will leave this life.” (Job 1:21) “We didn’t bring anything into this world, and we won’t take anything with us when we leave.” (1 Timothy 6:7)

If immortality becomes practicable in this world, I will have to eat my words. Until then, they stand. This side of Heaven (or whatever you believe lies on the other side of death), everyone will die. That is an absolute certainty. I am absolutely certain that I am going to die. And so are you.

Since you are going to die and your body is going to be taken away from you, then you do not own it. If you do not own the body you live in, then it belongs to someone or something else: God, a higher power, the Great Spirit, cosmic truth, weird space aliens who seeded our planet, et al, any one of which might actually have something to say about the way that we are abusing, destroying, and killing those “properties” entrusted, but not belonging, to us. [vii]

Let’s bring Michael Rozeff back into the conversation.

“I contend that libertarian theory is too narrow. I make the following statements of where I stand.
1. Property is too narrow a basis to build an entire law and society on. The moral principle of no physical aggression is too narrow a basis. They are good as far as they go, but taken too far, they run into problems by ignoring the non-physical. Libertarianism has an impoverished social theory by this restriction to property and physical aggression. It gains by definiteness, but it loses by restrictiveness. In some cases, as in defamation, it leads to conclusions that go against thousands of years of law and history. “
[viii]

Rozeff is correct. Libertarianism with a fixated view on property rights will not work. It has no soul. It needs to incorporate what he calls “the non-physical”, which I don’t mind referring to as spiritual and moral. When spirituality (the understanding that we are more than just body) enters the picture, it brings with it a sense of morality: what is right and what is wrong. When right and wrong come into play, it becomes evident that a monstrous crime has been perpetrated on the weakest, most vulnerable members of our society for a long, long time.

Women do NOT own their bodies and they certainly do not own the unborn children who are temporarily residing within their wombs. Any law which allows a woman to kill her unborn child, based on ownership claims, is flawed. Any society which relies solely on property rights to determine what is allowable is building a house on unstable soil. [ix] A civilization which elevates property rights over and above all things will be a civilization which is cold and heartless.

Where is the love?


[i] Block, Walter E. and Roy Whitehead. 2005. “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,” Appalachian Law Review, 4 (2) 1-45

[ii] It seems to me that, in many quarters, rights have taken on the attributes of religion, complete with high priests, a “gospel” message, worship services, and dedicated followers who will die before they change their beliefs.

[iii] Excluding unborn children, of course.

[iv] https://www.lewrockwell.com/lrc-blog/harm-to-the-person/

[v] Just one of the stories I read a long, long time ago and have never forgotten. https://en.wikipedia.org/wiki/The_Devil_and_Daniel_Webster

[vi] Not one of my favorite bands, but they made a hit out of this melancholy tune. https://www.youtube.com/watch?v=tH2w6Oxx0kQ

[vii] An example of this can be seen in the Holy Bible, Psalms, Chapter 2.

[viii] https://www.lewrockwell.com/lrc-blog/harm-to-the-person/

[ix] https://en.wikipedia.org/wiki/Parable_of_the_Wise_and_the_Foolish_Builders