The Case For Damages For Abortion

At a town hall on March 30, Republican presidential candidate Donald Trump said that if abortion is outlawed, then women who still have abortions should face “some form of punishment”, though he did not elaborate upon what that might be. Outcry from both anti-abortion and pro-abortion activists led him to walk back his statement, saying,

“If Congress were to pass legislation making abortion illegal and the federal courts upheld this legislation, or any state were permitted to ban abortion under state and federal law, the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman. The woman is a victim in this case as is the life in her womb. My position has not changed — like Ronald Reagan, I am pro-life with exceptions.”

But is there a form of punishment for the woman that is compatible with libertarian principles? Let us examine this from both a criminal and a civil perspective.

The act of abortion involves removing a fetus from a woman’s uterus and killing it. The reason that most people have difficulty in figuring out the morality of this is that it weighs fundamental rights against each other: the woman’s right to liberty and property in her body versus the fetus’ right to liberty and property in its body. But before the point at which the fetus is viable outside the uterus, the only way the fetus can keep itself alive is to rely upon the woman for sustenance. The rights to liberty and property cannot be exercised without exercising the right to life, and that which is dependent cannot supersede that upon which it is dependent. Thus, the fetus’ right to life overrules the woman’s rights to liberty and property. Therefore, the logical position is to be pro-life until the fetus is viable. After the fetus is viable, the woman may choose to evict it but not to kill it.

Of course, there are some special cases where this calculus is altered and an abortion is clearly justifiable. If a woman’s life is in imminent danger and the fetus is not yet viable, then there may be a choice between aborting a fetus to save the mother and letting both die. In such a case, the fetus is out of luck and the abortion should proceed to preserve what life can be preserved. A birth defect or other illness which causes the fetus not to have the potential to become a sentient being (e.g. anencephaly) also legitimizes an abortion, as carrying the pregnancy to term will accomplish nothing and fail to produce a being with self-ownership. But aside from these circumstances, a fertilized egg which implants into the uterus has the potential to become a sentient being. (Implantation is a better starting point for when life begins than conception because at least half of fertilized eggs do not implant in the uterus, but instead leave the uterus as menstruation does.)

When none of the above special cases apply, killing a fetus is unjustifiable. Therefore, stopping someone from killing a fetus is justifiable, as is applying some sanction to someone who has killed a fetus. If an abortion is performed against the woman’s wishes, then the performer is clearly a criminal against both the mother’s body and the fetus’ life. But if an abortion is performed at the woman’s request, then she bears some vicarious responsibility for hiring the abortion provider to act as her agent. But how may someone be stopped from killing a fetus? To whom are the people complicit in the abortion responsible? What kind of criminal sanction or civil restitution is just? These are not easy questions, but let us attempt to answer them.

Using force to protect a fetus from being aborted must be done carefully; otherwise, such an effort may cause the very problem it is intended to prevent, as well as aggress against innocent bystanders. Such an effort would have to be directed solely against those who perform abortions and never against the women receiving abortions. This will probably always be difficult, if not impossible, so let us consider the matters of responsibility and restitution once an abortion is performed.

In all cases where killing a fetus is unjustifiable, the criminal liability for destroying a potential sentient being is upon the abortion provider. While there is some vicarious responsibility on the person who hires the abortion provider (usually the mother), the general rule is that there is no vicarious liability in criminal law. This is because a crime is composed of both an actus reus and a mens rea, and the mother has the latter but not the former. As such, the mother’s responsibility is best handled civilly.

The responsibility for restitution depends upon what was negotiated between the mother and father of the fetus. The default condition, which should apply when no other explicit agreement was made between the couple, is that agreeing to engage in an act which may result in pregnancy creates an obligation to be responsible for the new potential sentient being which may be created. One may assert a preference that a pregnancy not occur, and one may act upon that preference by using contraceptive measures, but the only guaranteed method of contraception is abstinence. If an abortion is performed, then the responsibility for the new potential sentient being has been shirked, and its heirs, if any, are due restitution. A fetus has only its parents for heirs, and restitution for an act of aggression cannot be due to a person who is complicit in the act. Thus, the restitution must be due to the father of the fetus, and only in a case where he did not consent to the abortion, as this would make him just as culpable as the mother. If the couple did make an explicit agreement to terminate any pregnancy resulting from their sexual activity, then there is an injustice against the fetus, but no restitution for it because there is no one who can receive said restitution.

Finally, let us discuss what sort of restitution may be appropriate. If a mother aborts a fetus against the father’s wishes, then he is deprived of offspring that he would otherwise enjoy. But to compel specific performance in terms of forcing the woman to bear the aborted fetus’ father a child would legitimize both rape and slavery. This makes specific performance inappropriate in the circumstances of the case. While damages cannot adequately compensate a father for the deprivation of offspring, a monetary judgment would have to suffice, in an amount which is best determined by specialists in such cases.

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