Warren Albrecht | United States
I believe a good discussion may start in negative and positive rights. A negative right does not enforce the duty on someone else. Duty is usually thought of as an entitlement. A positive right has an entitlement owed. Everybody has a negative right to engage in commerce or trade. But everyone does not have the positive right to impose a duty or force someone else to engage in commerce with you and trade with you.
This is where most libertarians discuss the benefit of free trade. It must be consensual. People in free trade have a contract. I give you three apples and you give me a rope. To have a positive right, someone must have a duty to fulfill for you. The example most widely discussed is the public defender. If you do not have an attorney, one will be provided for you. This means it imposes a duty on someone else to provide and pay for that attorney. The universal agreement is required for a positive right.
Examples of the Ethical Dilemma
There’s been much written about the unborn child or fetus and its rights. Many refuse to discuss this when it comes to abortion. Listen clearly to the debates. There are many things that I read which try to develop the philosophy that the fetus is an intrusion on the woman. The examples are written as modern-day horror films.
A woman woke up one day and was connected by tubes to a famous dying violin player, blah, blah, blah. Can she disconnect herself and let the violin player die? In the discourse of property rights, the woman has the right to get rid of this fetus, baby, a blob of cells, growth or tumor. Should men stay out of reproductive rights? Then why is the conversation of individual body property rights as if women and men are the same and growth in the body are just like something that would be in a man. Women have a unique biologic power. Do they have a unique responsibility?
The unborn child has positive rights when it comes to the mother. The baby did not ask to be formed. It will go through a pregnancy, and if allowed without an external action, be born. Natural spontaneous abortions are bananas compared to the apples of abortions at Planned Parenthood. If you agree that the unborn child has an acceptable contract (positive right), and the mother has a responsibility, then you understand the Alabama abortion law is following this.
The problem I see in any abortion law is where is the responsibility of the mother placed? The abortion provider will go to jail for killing the unborn child. What about the contract that is broken by the mother? Why does the Alabama law not have a sentence for a mother who would go through an abortion without coercion? Is the abortion doctor a snake oil salesperson tricking the woman into having a procedure? Perhaps, if they are not willing to give informed consent including showing an ultrasound of the baby and allowing time to think about the choice. Why do we argue that showing an ultrasound is an undue burden? Women across the country travel long distances to participate in the doctor-patient relationship with pictures shown and elective surgery scheduled another day. Why are the Supreme Court justices not screaming for change?
I agree with the statement that generally libertarians do not recognize positive rights because positive rights always conflict with negative rights. The only true rights are negative rights because they do not force a duty on someone else.
We do not have the right to education, healthcare or abortion. If you read many of the articles about the Alabama abortion law, many are prescribing women positive rights. That is also the conflict of a positive right for contraception. Someone else will provide an entitlement or duty, so a woman does not get pregnant, no mention of the negative rights of the baby.
Voluntary Contracts Between Consenting Individuals
Is there a social contract between persons? If someone has a hot air balloon and invites another to ride it, then the owner of the hot air balloon has placed the guest into a positive right like a contract. The owner of the hot air balloon has the obligation or responsibility to take care of the guest. If owner and guest have an argument while they are in the air, that does not mean that the owner has property rights and can kick the guest out of the balloon while it is a hundred feet up in the air and death is probable. The fetus inside the woman is in a unique position. All attempts to rationalize abortion must compare apples to apples.
It is the normal practice in society to understand that the parents are under a contract to take care of this child and even perhaps train the child to be able to fend for oneself. If a woman gives birth in some bathroom and discards the child in the trash, is the woman in trouble? If one causes a pregnant woman to die, in many states the death is of two persons, not just one.
The parents may drop the child off at the shelter or place a baby up for adoption. They are under contract to make sure that the child is okay. The child or baby has a negative right to life and liberty as well as a positive right upon the parents not to die. The Affordable Healthcare Act confirms this contract by allowing children up to 26 years old to remain on family health insurance. Obamacare allows children to be protected by their parents until a certain age. The parental contract is accepted in society and by communities across the United States.
What Does the Law Say?
There are only a few reasons murder can be a federal crime mentioned in the Constitution, mostly pertaining to federal employees. Rape, child molestation and sexual exploitation of children are federal crimes. Are children a subset of protected persons? Are they vulnerable? In about 2016, the Republicans tried to pass the Pain-Capable Unborn Child Protection Act making it a federal crime to perform an abortion after 20 weeks. Assuming someone will be around actually to test, verify, and report the pregnancy is at 20 weeks. Does anyone see a loophole? The state would not prosecute the woman.
Roe V Wade
SCOTUS may look at pregnancy and set a definition of when the pregnancy can be terminated by viability. Those educated justices do not see the rabbit hole they have sunk into. You will have to define viability. Then if life is defined by viability, does that mean if I have a bigger gun than you I am viable and you are not. War is always based on viability. Why is viable only defined during pregnancy, if the thing being viable is not a person?
There are several Democratic candidates for the presidency who stated that abortion should be legal up to the time of birth or beyond the third trimester. There may be states in our union that as a community says that is acceptable. We must accept this.
Many people forget that there were states with legal abortion before Roe v Wade. Many describe state laws today which are strict on abortion as “trigger laws”. That means they may trigger a review by the Supreme Court on the viability of Roe vs Wade or elements of it. Many forget that Roe herself was caught in a lawsuit meant to be a “trigger” hoping that the Supreme Court would overrule the supremacy of state law. Roe (Norma McCorvey) had her child and was later vocal about being used as a pawn in a chess game.
You can review some of the SCOTUS decisions about abortion here.
In Harris v. McRae, SCOTUS held that states can regulate Medicaid funds when it comes to abortion as supported by the Hyde Amendment. Women do not have a positive right to tax money and abortion. That does not mean that many wealthy people in the United States would not create a charitable organization to support Planned Parenthood so the abortion procedure would be free or a very low cost to women. I would have no right to use force to stop them.
Let us start there. The state of Alabama can not regulate any medical facility as long as it does not accept any tax dollars in any form. Planned Parenthood could be free to hand out contraception and perform any procedure it likes. But the issue of the fetus is still swirling out there. That is the issue Alabama is dealing with. Maybe New York and California ignore the fetus.
Abortion is Horrifying
If one considers themselves pro-abortion and wants to defend this, then you must work around the issue of negative and positive rights. When does life begin? Who is viable? Does public or private money give your business liberty? You must draw a line in the sand somewhere for negative rights for a preborn blob, fetus, infant, person. Do that and you are home free. Create those self-sustaining charities to provide these procedures without imposing a duty or tax on someone else.
am ready to see different states enact different laws on abortion again.n The constitution does not grant it and the Supreme Court never should have accepted to hear Roe v Wade but to support states rights. The more local decisions are made and accepted, the fewer people have to be involved in hating someone else. Or will that stop the hate? If the Amish vote their conscience as a block on topics, there would be dead horses and burning carts in the streets of Pennsylvania and Ohio. But since they do not vote, nobody cares what they think or do. I do not see studies comparing the health of Amish women (relatively low income) to the low-income women in Philadelphia and Cincinnati. If women’s health was truly important, that would be an enlightening study.
Why not more studies on the causation of the violence of rape? Why are we so forceful in the federal government about taxation to fund extraneous entitlements which are not persons right when we will not be more forceful on the contract a father has with his child? If we have a 20 trillion dollar deficit, then why doesn’t most of it goes to cure Down’s Syndrome, Cerebral Palsy, Autism and other diseases which would lead a woman to kill a child? What study looks at how many women would go through with abortion if they saw an ultrasound? 20 trillion dollars would give every woman in the United States almost $135,000 to start her own business or for college. If this was truly about women’s health, we could have done much better than Roe V Wade.
I am trying to open cans of worms and expose elephants in courtrooms around the country. I tip my hat to Jason Stapleton and his podcast for leading me to think about this issue from the aspect of negative or positive rights. The dial is at seething on the hate meter and if you do not look at this from a liberty perspective, the dark side will consume you. The human race has proven it is not mature enough to handle the morality discussion of killing one another either in war or abortion, nor taking care of the women and children caught up in the issues of war or abortion. I think starting with issues locally in individual communities and then comparing these outcomes is a start. The Supreme Court needs to overturn Roe on the grounds of the Tenth Amendment and send it back to the states and leave this matter to the People. SCOTUS has done enough damage.
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