In their article, “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy”[i],  Walter Block[ii] and Roy Whitehead[iii] make the following argument.

“However, just because aborting the fetus is abominable, it does not follow that it should be prohibited by law. Under a just e.g., libertarian law code,¹³⁶ there are numerous despicable acts, which are not legally pro­scribed, since they do not constitute “invasions” or “border crossings.” Abortion falls into this category. It is a failure to come to the aid of or an unwillingness to become a “good Samaritan.” The woman who refuses to carry her fetus to term is in exactly the same position as a person who refuses to rescue a drowning swimmer. Abortion is not, in and of itself, an act invasive of other people or their property rights, even when fetuses are considered persons.”

My paraphrased version of this: Just because abortion is abominable, we should not prohibit it. After all, there are other despicable [abominable] acts which would not be proscribed under libertarian law.

I agree completely with this statement, as it is written. We should not prohibit abortion because it is abominable. Instead, we should prohibit it because it is the deliberate killing of an unborn human being, who has done nothing wrong, nothing deserving the punishment of execution. It is the murder of an unborn, personal, human being; therefore, it should be prohibited. It is a sad commentary on our modern way of life that it is not.

The numerous despicable acts (unnamed in the quote) are not legally proscribed because they do not constitute “invasions” or “border crossings.” Ah, yes, trespass again. In all the imagined acts, however, there is a common thread–all the parties involved MUST be willing participants. If there is even one unwilling participant in any one of these “despicable” acts, then someone’s borders have been crossed. Ask an unborn fetus if she is willing to have her space (the placental sac) invaded. I daresay that, from her point of view, abortion does not, absolutely does not fall into the “despicable action” category which will be allowed under Block and Whitehead’s “just” libertarian code of law.

The woman who refuses to carry her baby to term is NOT the same as someone who refuses to rescue a drowning swimmer. Refusal to act in order to save a person’s life is not equivalent to deliberate action in order to take a person’s life. Not at all, not even close. There may not be any criminal intent in refusing to save a drowning swimmer, e.g., overloaded lifeboats at the sinking of the Titanic, where taking on one more drowning swimmer would have sunk the lifeboat, killing them all. An action such as this could be considered self-defense. Emotionally excruciating, perhaps, but not criminal. Aborting a fetus, though, is not just morally repugnant, but a deliberate act of homicide.

A more appropriate analogy would have been to compare the woman who aborts her unborn fetus with someone who holds a swimmer’s head under water, refusing to allow him to breathe, thus drowning him. Comparing the fetus with a drowning swimmer is ludicrous. A drowning swimmer is in mortal danger, while there is nothing more alive than a healthy and growing fetus. Really now, if you wanted to see it like this, the fetus is swimming laps (no pun intended), preparing herself to become an Olympic champion and is in no danger at all except from the person who “owns the pool.”

Abortion IS, in and of itself, invasive of other people and their property rights, especially and particularly unborn children who are (or ought to be) considered persons with their own set of rights. It is plain to be seen that, in order to maintain the cohesiveness and integrity of the theory of property rights, “rights” MUST be more important than what IS right.

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[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] Walter Block, an Austrian school economist and anarcho-libertarian philosopher, is Harold E. Wirth Eminent Scholar Chair in Economics and Professor of Economics at Loyola University New Orleans and Senior Fellow with the Ludwig von Mises Institute.

[iii] Roy Whitehead, JD, LLM, Associate Professor of Business Law, University of Central Arkansas.