Evictionism: A Review Of A Morally Barren Doctrine

Compared to other schools of political thought, libertarians have a tendency to be far more intellectually honest. A republican is more likely to tell you they believe in individual and property rights before turning around and pushing for aggressive wars on broad, non-descript things such as drugs or convenient boogeymen such as “terrorism.” A democrat is more likely to tell you they are for social rights before turning around and regulating everything you do to death, right down to how much soda pop you can drink, how many gallons of water your toilet can use per flush, etc. Thankfully the vast majority of libertarians are pretty consistent in their intent to leave others alone. However, there is an area where many well known libertarian authors, philosophers, and teachers tend to fall grossly short of their own dogma, and that is when it comes to protecting the lives of infants in utero, particularly in advocating for the ethical doctrine of evictionism.

Thankfully, most libertarians will at least be scientifically honest, educated, and cognisant enough to recognize that an unborn child of two human parents in the womb is still human, and thus should be allowed the rights of a human being. However, there are many (primarily Walter Block, building off earlier work of Murray Rothbard) who still hold a pro-abortion stance under the tricky, sneaky mantle of “evictionism.” Evictionism views any unwanted infant in its mother’s womb as a parasite, a trespasser, or an unwanted guest in the mother’s property of her body. Evictionists then argue that because the child is an unwanted trespasser, it is aggressing against its mother, and the mother has the right to expel the child from her womb “in the gentlest manner possible” without regard to its viability, etc. While Block would argue that the woman must first publicly announce her intent to expel the fetus and ensure no one will adopt the child, this still amounts to the same thing when arguing for the expulsion of a non-viable infant from the womb, the murder of a human being. The idea that the announcement of the imminent killing of the child to offer an opportunity for someone to save it somehow removes moral culpability is, of course, ridiculous. Murder does not become less murderous simply by the murderer announcing that they are about to kill someone.

The crux of the argument for evictionism is that since the mother owns her own body, and since the unwanted child is occupying her property, she has the right to do away with the child in order to maintain her right to her property. Rothbard argues, in Ethics Of Liberty:

It has been objected that since the mother originally consented to the conception, the mother has therefore “contracted” its status with the fetus, and may not “violate” that “contract” by having an abortion. There are many problems with this doctrine, however. In the first place, as we shall see further below, a mere promise is not an enforceable contract: contracts are only properly enforceable if their violation involves implicit theft, and clearly no such consideration can apply here. Secondly, there is obviously no “contract” here, since the fetus (fertilized ovum?) can hardly be considered a voluntarily and consciously contracting entity. And thirdly as we have seen above, a crucial point in libertarian theory is the inalienability of the will, and therefore the impermissibility of enforcing voluntary slave contracts. Even if this had been a “contract,” then, it could not be enforced because a mother’s will is inalienable, and she cannot legitimately be enslaved into carrying and having a baby against her will.[1]

There are two main objections to this stance. The first is that the infant has insufficient capabilities of its own to alter the situation. Even if the child was conceived as the result of a sexual assault, it is neither morally culpable for its existence in the womb, nor is it capable of leaving of its own accord. By way of analogy, if a man is walking down the street, minding his own business, and is attacked, robbed, and beaten unconscious, and then dumped on a lot of private property thereby devaluing the property, the owner of that property does not have the right to walk up to the unconscious man and kill him or otherwise use force against him since he entirely lacks the mens rea to leave the property of his own accord. This creates multiple victims of the original crime, both the man who was beaten unconscious and the man on whose property he was placed, but it does not give the second victim the moral grounds to forcefully or even fatally expel the first victim. Of course, being the victim of rape is far worse than the analogy presented above, but the example shows that one cannot punish the second victim for the perpetrator’s crime. Additionally, Rothbard presents here a very low view of both promise and contract. While it is the case that the parties involved in a contract may leave it consensually, one cannot leave without consent of the other, even more so if it means the serious harm or ultimate demise of the second party. The inalienability of the will is an important doctrine, as Rothbard points out, however when one enters into a contract voluntarily without fraud or any other form of coercion coming into play, in order to leave the contract they must do so with the consent of the other party in the contract, and with an infant in utero lacking this ability (and lacking ability to be recompensed should it be killed by eviction), the child must be left to grow safely. Thankfully Block has a stronger grasp of this issue and remains critical of Rothbard’s lower view of contract, but unfortunately still holds to his own doctrine of evictionism.[2]

If one accepts the idea that if a non-active party of the first crime can be justly punished or otherwise harmed in pursuit of restoring the primary victim to his original estate, or otherwise avenging him, then they must also accept all manner of terrorist acts and other behaviors. If Stephen robs John with a gun he stole earlier from Jeffrey, John has no right to pursue vengeance against Jeffrey just because the goods stolen from him earlier were used in the second crime. The infant to be evicted from the mother’s womb is in the same position as Jeffrey in the analogy. He has been wronged by his father who forced him on a woman who did not consent, but just because he is used in the criminal act does not mean that he is an active party in the criminal behavior, and thus he should not be subject to any punishment, even if the goal is to restore the rape victim to her original estate.

The second objection deals with a case in which the child in question was conceived through consensual sexual activity. This is the area in particular where the theory of evictionism as the answer to the pro-choice and pro-life debate runs completely off the rails. In the case of a rape victim, although one cannot condone the mother killing the child produced by the crime, one of course should have a great deal of sympathy for her plight, from a physical, emotional, and even a financial standpoint. On the other hand, when the child is conceived in a consensual sexual encounter, there should never even be a discussion. Every adult in the world knows what leads to the conception of a child, and in participating, they knowingly, actively bind themselves to protect and care for any children which may be the product of their union. In this case, the existence of the unwanted child in its mother’s womb is the direct result of the behavior of two consenting, morally culpable adults, and as such the child cannot be called a trespasser.

Imagining again the man beaten unconscious, if someone took pity on him, and took him back to their home, that would be a good and charitable thing to do, but it would be a thing done by the choice of the property owner. If the property owner realized as the man healed from his beating that being a good Samaritan costs a great deal of time, money, and effort, and decided they no longer wished to host and care for the man, that would be acceptable. However, if the homeowner said to the man crippled in their home “get up and leave, now” and the unconscious man did not respond, the owner of the property, having brought him to that place of his own choice, would not then have the right to kill the unconscious man and dispose of his body. If a good Samaritan were to turn bad in this way, we would rightly recognize this act as murder, whereas Block would claim that the man has no positive obligation to be a good Samaritan, and so if he chose to end his charity at any time, he may do so, even if it means the death of the person he knowingly took in.[3]

Adding further condemnation to the theory of evictionism when understood in the context of a child conceived through consensual sex is the fact that the man and the woman who conceived the child did so by participating in an action which they viewed as profitable to them. If someone enters into a binding agreement, they cannot leave that agreement to the detriment of another without the other’s consent. If our friend who was beaten and robbed temporarily regained consciousness and offered to pay the homeowner to take him in, and the homeowner consented to do so, expecting to benefit from the transaction, how much more would it be wrong for the homeowner to terminate the agreement without the permission of the victim of the robbery, even to the point of killing him? This is effectively what happens in evictionist doctrine. Even if the “most gentle means possible” are used by the homeowner to expel the victim of the robbery, the homeowner is still doing unjustifiable violence to the robbery victim. This analogy is helpful, but it doesn’t quite get at the fullness of the issue, either. Using “the most gentle means possible” sounds nice in theory, but when considering the fact that in the vast majority of cases the victim of the eviction would not survive, no matter how gently he or she is removed from the womb, he or she would die (assuming of course that in the vast majority of eviction cases the action would take place sooner in the course of the pregnancy rather than later). Actions leading to the almost certain death of an individual are no less murderous if you do them so as to inflict minimal pain. James A. Sadowsky says:

Does the mere fact that a man is a stowaway justify our throwing him out of the aircraft? Ought we not in the absence of overriding reasons to wait until the aircraft lands? Both traditional natural law theory and the common law have it that our response to aggression should be proportionate to our need to resist and the nature of the attack. Suppose that the inflicting of a lethal wound is the only way to recover a stolen nickel. Is that enough to justify such act? Of course, one might say: “So much the worse for traditional natural law theory and the common law.” But I should think that the burden of proof rests on him that would depart so far from what seems a commonsensical intuition.[4]

Sadowsky is right of course, if one is so intent on maintaining property rights that they are willing to act in such a way as to kill the offending party (this is assuming the offending party knowingly committed the offense) without first attempting any alternate means to deal with the situation, the burden of proof remains on them to justify something which is so contrary to common-sense and man’s natural conscience, however hardened it may be.

This common sense point is perhaps the greatest of all when considering the legitimacy of the evictionist doctrine. If one accepts (like Block and Rothbard do) the humanity of the child in utero, there is no way that you can slice evictionism as a sound ethical doctrine as it touches on parent and child relational rights and responsibilities. It fails both the deontological ethic of non-aggression, as well as the utilitarian ethic in the school of J.S. Mill. From the standpoint of those committed to non-aggression, a human life which has no means by which to exercise power of will (and thus no means to act aggressively) is taken, making the mother (and any accomplices) the violent and morally culpable aggressor. No matter how far one may attempt to obfuscate the issue, when looked at from a plain and simple common sense perspective, this becomes clear. Even if one adopts Mill’s ethic of the greatest good for the most people, the only conclusion can be that evictionism is a wash at best, since it leads to the death of one, and although the mother lives, the death of the infant in no way ensures the greatest good for the mother. There is no justification for evictionism, either from a deontological ethic or from a utilitarian ethic.

Libertarian ethicists and philosophers Murray Rothbard and Walter Block have done the world a great deal of good in their efforts to help people grow in their commitment to the protection of life, liberty, and property. However, when it comes to protecting the lives of infants in utero, they have failed miserably, particularly in advocating for the ethical doctrine of evictionism. Their open acceptance of the humanity of the child is a step in the right direction, however their faulty reasoning and lack of concern for the most vulnerable in society shows an area in which both are lacking. If libertarians wish to be consistent, and if they wish to be taken seriously by the general public, this illogical and unethical doctrine must be rejected from the corpus of libertarian thought. All the efforts to further man’s commitment to the protection of life, liberty, and property are worthless if they do not further our commitment to maintaining these same rights for the weakest and defenseless among us.

This is not an area in which Christians should or can rightly compromise, but instead is a place in which we must take an unflinching position. It is of course certainly true that within a fallen world, the right to life and the rights which flow from that right will be violated, this is something we will never be able to fully stop this side of eternity. However, this does not mean that we must accept such immoral uses of violence in the process. As we seek to make known the reign of Christ over all things, we must reject any and all attempts to justify the initiation of violence, and in so doing protect our brothers and sisters in Christ. In this work, we glorify Christ, and that which we do for the least of these, we also do unto him.

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

[2] Walter Block, “Toward a Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Smith, Kinsella, Gordon, and Epstein,”Journal of Libertarian Studies 17, no. 2 (2003).

[3] Walter Block, “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy,”Appalachian Journal of Law 4, no. 1 (2005): 6.

[4] James A. Sadowksy, The Libertarian Forum, July-August 1978, 2.

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