Is ‘evictionism’ the principled compromise that could solve America’s bitter divisions over abortions?

The principle of using private property rights to determine whether or not a termination may take place could be the key to solving the rows that bedevil our nation.

Various jurisdictions have enacted new laws concerning abortion. Some states take an extreme pro-life position, others the very opposite. There are even some which fall somewhere in the middle.

It is difficult to tell the ball players apart from each other, even with a scorecard, since numerous state legislatures are in the process of altering their laws on this matter, but here is a rough depiction of the perspectives as they stand at the moment.

On the pro-choice side, New York has enacted a law permitting abortions right up to the time of birth. A bill was introduced in New Mexico nearly criminalizing physicians who refuse to perform this operation, but did not garner majority support. 

At the other end of the spectrum, Alabama’s law provides that no abortions will be allowed at all, except to save the life or health of the pregnant woman

And then there are some whose provisions lie somewhere in the middle. Ohio, Kentucky, Mississippi, Georgia have passed fetal heart beat laws (in effect a ban on abortions after more than six weeks of pregnancy). Utah and Arkansas have enacted legislation mandating criminal charges for abortions that take place after “the middle of the second trimester.” Texas, too, is a moderate in these sweepstakes.

All of these compromises are to be welcomed. Our society has not been riven by such substantial disagreement, perhaps, since 1861, and we certainly do not want any return to those antagonistic days. 

However, it would be even more desirable to have a compromise based on principle. If I say that 2+2=6, and you say 2+2=4, then 2+2=5 is a compromise alright, but not one we can deduce from any major premise, apart from the need to split our disagreement down the middle. This is precisely what “the middle of the second trimester” does: it divides the nine months of pregnancy neatly in half. 

The fetal heartbeat criterion does a bit better in this regard; death is often defined as the cessation of blood flow, so, why not define human life at its beginning? The difficulty, here, is that the unborn baby, a moment before and after minute electronic impulses can be discerned, is not in any relevant way changed.

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There are two other criteria which may be employed to define the beginning of human life. One of them is actual birth. But again, in terms of alterations of the pre-born child, an hour before and after delivery, this amounts to no more than a change in address. The other possibility is at the very beginning, the fertilized egg stage. Let us employ this definition, by stipulation, in an effort to find a philosophically relevant compromise.

According to the property rights theory of libertarianism, the unwanted baby is, in effect, a(n innocent) trespasser. This is easy to see in the case of rape. But even for voluntary intercourse, this applies. If I invite you to my home, this does not mean you are welcome to stay for nine months. Yes, if I invite you to take a trip on my airplane, I have an implicit contract to land you safely, if at all possible, and if not, to give you a parachute, to share with me if need be. But, for an invitation to be given, there must be both an invitor and an invitee. At the time of coitus, the latter did not yet exist. (The sperm can take an hour or more to arrive at its destination).

Who is the owner of the woman’s body? Why, her, of course, not the baby. She was “there,” in effect “homesteading” (a la John Locke) the premises, long before the latter arrived. Trespassers, particularly innocent ones, are to be removed from the premises of the owner in the gentlest manner possible – but consistent with their ejection. This gives rise to the libertarian theory of evictionism: the mother may evict the young human being at any time she wishes, but may not gratuitously kill him (except in self-defense, in order to protect her health or life). According to the pro-life position, she may neither remove him (before the nine months have passed) and certainly not ever kill him. Based on pro-choice, she may legally do both. In the view of evictionism, the law must allow her to engage in the first act, but not the second. Thus, it constitutes a compromise, and a principled one, too, based on private property rights.

If evictionism were enacted into law, all babies in the third trimester would have their lives guaranteed. If evicted during the third trimester, they are viable on their own, with the help of adoptive parents. Those in the first two semesters could be evicted, not aborted (eviction plus killing) but would perish, since medical technology has not yet advanced to that extent. But as time goes on, viability will occur earlier and earlier, and more and more pre-born infants will be saved.

The pro-choice and pro-life positions would each be granted half of their goals. For the former, the mother would be able to evict the fetus at any time of her choosing; she would not be able to pass a death sentence on him. For the latter, one third of babies would be immediately safeguarded, with more and more to come, as medical technology improves.

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