Libertarian Perspectives on Abortion Policy

Before the mid-​nineteenth century, the legal status of abortion rested on the common law. Post-​quickening abortions (after fifteen to eighteen weeks) were felonies.¹ Pre-​quickening abortions were “tolerated,” meaning not prosecuted. In the mid-​nineteenth century, state governments criminalized all abortions. These statutory laws persisted for about a century.

During the 1960s, twelve states legalized abortion under rape, incest, or to protect the life/​health of the mother. In 1970, five states legalized abortion on demand (Alaska, California, Hawaii, New York, Washington); then, in 1973, the Supreme Court ruled in Roe v. Wade that all state bans on abortion were unconstitutional. After Roe, Planned Parenthood v. Casey modified the Roe framework, allowing states to regulate mid- and late-​term abortions, subject to an “undue burden” criterion.

Thus, until June 2022, all states were required to allow abortion on demand during the first trimester. Many states imposed restrictions on second and third trimester abortions, and a few implemented tighter restrictions, such as fetal heartbeat limits, parental notification rules, viability cutoffs, waiting periods, spousal consent restrictions, partial-​birth abortion bans, licensed physician requirements, mandatory ultrasounds, and more.

In June 2022, in Dobbs v. Jackson, the Supreme Court reversed Roe/Casey, leaving abortion policy to each state. Some have continued or strengthened the legality of abortion, while others have, or are in the process of, restricting or banning abortion.

The typical argument against abortion holds that an unborn embryo or fetus is a person, which suggests that terminating the embryo or fetus is murder. Since protecting life is a basic function of a legal system engaged in protecting individual rights, it follows that government should ban abortion. That was the reasoning in the common law, although that approach exempted early-​term abortions in practice.

While libertarians believe in freedom from government coercion and meddling in personal matters—including issues related to body autonomy—they also believe that freedom ends once it impinges on another’s rights. As Oliver Wendell Holmes or John Stuart Mill is quoted as saying² “my right to swing my fist ends where the other man’s nose begins.” In the context of abortion, the harm or non-​aggression principle suggests abortion must be prohibited, at least at some stage of fetal development.

Inflicting pain is widely considered a “harm.” Medical groups like the American College of Obstetricians and Gynecologists believe that a fetus can feel pain in the late second trimester, and other scientists suggest the fetus can feel pain much earlier. From the second trimester onward, doctors recommend that fetuses be treated with pain medication or anesthesia for in utero surgeries, which suggests that both medical professionals and patients have reasonable concerns that the fetus experiences pain at this stage. Further, some philosophical frameworks suggest that abortion produces harm even before pain can be felt: prior to sentience or viability, abortion deprives the embryo or fetus of existence without its (future) consent.

At the heart of the pro-​life view is the idea that it is worth expanding an individual’s circle of moral concern to those who lack the same advantages, intellect, or capabilities. In that sense, libertarians are arguably natural allies of the cause. They regularly advocate for the rights of marginalized or disadvantaged groups, including religious minorities’ ability to worship in the way that they wish, same sex individuals’ ability to marry whom they wish, or immigrants’ and refugees’ ability to move to where they wish.

Life is the most basic individual right, as without it, none of the others are possible. While the ability to marry or worship in the manner an individual desires is more closely related to self-​realization, the basic survival and protection required to sustain human life is a prerequisite. Advocating for human life seems a natural antecedent to libertarians’ other rights-​related interests.

Still, one sticking point is whether the embryo or fetus is a person in the classical Western legal-​philosophical sense. If not, the attendant rationales for banning abortion begin to break down. Indeed, it is difficult to say precisely when an embryo or fetus becomes a person or sentient. Realistically, depending on the stage of development, an embryo, at least, may be more easily described as nascent human life.

If the embryo or fetus is not reasonably considered a person, destroying an embryo or fetus at an early stage of development would not constitute murder. But it may still constitute a grave offense, suggesting limiting abortion is the ethical choice. This offense may be made more serious by power imbalances between the actor and acted-​upon, the rationale for action (e.g. personal convenience rather than a fatal diagnosis), and the intrinsic harm of terminating a nascent being’s ability to exist. Both an embryo and fetus in utero have the capacity to become a person and are actively on their way to becoming one.

As renowned economist Julian Simon once said, “Humans, through ingenuity, innovation, and creativity, are the greatest resource the world has.” If human life is the greatest resource, then surely nascent human life, the precursor to personhood, is also of high value.

The assertion that a fetus is a person is just that: an assertion. No law of nature or scientific principle dictates precisely what constitutes a person; instead, any perspective is partially subjective, reflecting moral, emotional, ethical, and religious views. Thus, people can and do disagree. Some believe the critical point is conception and therefore regard terminating a pregnancy, or even using contraception, as murder. Others believe the critical point is when birth occurs “naturally” and would therefore allow abortion through the third trimester.

Moreover, neither existing government policy, nor widely held ethical perspectives, treat all “killings” as something society should ban. Exceptions include self-​defense, police killings in the line of duty, capital punishment, civilian deaths ancillary to war, and assisted suicide. That is, most people implicitly regard the value of a life as finite and therefore decide when killing is acceptable through a cost-​benefit approach, even while differing about specifics.

Abortion restrictions also violate the libertarian rule of thumb that the government’s power to interfere with individual decisions should end, at a minimum, “where my skin begins.” Although this perspective is not decisive when applied to abortion, since one can view abortion as affecting another “person,” the fetus, it is relevant for libertarians and, at least, leans against outlawing all abortions. This guideline is consistent with libertarian opposition to laws that restrict drug or alcohol use, gun ownership, prostitution or other consensual sexual activity, assisted suicide, organ sales, pornography, access to non-​approved medications, and so on.

Abortion restrictions might also generate costs to society if it were more likely for persons who could have resulted from terminated pregnancies to commit crime or take up social welfare programs. Claims that abortion legalizations in the late 1960s and early 1970s caused a substantial crime reduction twenty years later have not withstood statistical scrutiny, but other research suggests the “marginal” children would be more likely to collect welfare or Medicaid. Also, some pregnancies terminate because the fetus has costly and often fatal medical conditions, often imposing a social cost through taxpayer funded health insurance.

As with the arguments for abortion restrictions, the arguments for legal abortion are not decisive. Many abortion opponents find this argument unconvincing, regardless of the evidence. Some might point out that one could make similar arguments for killing a one-​year-​old or a twelve-​year-​old, yet hardly anyone would endorse such an argument. Still, limiting abortion plausibly generates negative externalities in some cases.

An additional issue is that abortion restrictions do not eliminate abortion but instead drive it underground. Bans therefore have undesired consequences, such as making abortions riskier for women who pursue underground access or rewarding doctors who perform illegal abortions or provide RU-486 in violation of the law, which contribute to disrespect for the law broadly.³ This is a key part of why libertarians oppose most prohibitions, whether of drugs, guns, prostitution, immigration, gambling, and so on.

Abortion may be a special case because, as described above, some view abortion as affecting a third party. But there are cases such as rape, incest, or life of the mother where the vast majority of Americans are in favor of allowing abortion as a practical matter: even if abortion harms a third party, the complexity of the situation makes the ethical calculus less certain. Even when people agree that abortion is harmful and should be limited, they may reasonably disagree on the right answer in extreme cases.

The arguments above explain why libertarians can readily argue for both restricting or legalizing abortion. Regardless of whether the standard argument is compelling about the costs of abortion, that argument does not address the potential costs of government restrictions on abortion.

Although there are libertarian arguments on both sides of the abortion debate, public policy is not merely theoretical, and any laws must wrestle with the pragmatic specifics of design and implementation. In the case of abortion, laws must also navigate the enduring divide between opinions for and against, which vary dramatically by region and political constituency.

Neither the pro- or anti- perspective, by itself, addresses a key issue about abortion policy, which is whether that policy should be set at the state or federal level. And a different libertarian principle—federalism—argues strongly against imposing any abortion policy nationwide, regardless of one’s position on abortion per se.

Federalism is the view that the federal government should intervene in only the tiny handful of policy areas that are inherently federal—national defense, and not much else—while allowing states to intervene broadly, even when such intervention seems misguided from a libertarian perspective.

A plausible approach is therefore to leave abortion policy to state governments, with no federal intervention in either direction. This approach has the following features.

Most laws in the United States are state laws: murder, assault, rape, robbery, larceny, auto theft, and related. Federal laws address inherently federal issues like treason, evasion of federal income taxes, counterfeiting, patent infringement, and the like. The distinction between state and federal law has blurred in recent decades, in areas like drug laws, violence against women, hate crimes, discrimination, terrorism, white collar crime, and more. Overall, however, criminal law is historically and still primarily state rather than federal.

Consistent with this, federal law has never prohibited abortion; instead, each state prohibited or regulated abortion as it saw fit. Roe, however, said that the federal Constitution prohibited states from banning abortion, thereby inserting federal control in an area previously left to the states. Analogously, Dobbs does not ban abortion. Instead, it restores the pre-​1973 standard in which states regulate abortion.

We set aside whether Roe or Dobbs was correct from a constitutional perspective. Our point is that leaving abortion policy to states is natural from the perspective of continuing the centuries-​long presumption that states define and enforce laws against murder. Thus, each state gets to address this in the context of abortion.

This approach is consistent with a strong preference to leave essentially all policies to states, i.e., extreme federalism.

The state-​by-​state approach does not appeal to those with strong views at either end of the spectrum. If one is positive about the right policy, it might seem natural to impose this on all states; otherwise, some states might not adopt. But other considerations matter: abortion is an emotional topic that lacks definitive answers. Thus, imposing one view is polarizing and detrimental, since it forces everyone to accept the same policy.

An implicit assumption behind our endorsement of leaving abortion policy to each state is the assumption that RU-486 is legal, either because the US Food and Drug Administration and any related laws do not exist, or because the FDA has authorized the drug. Also, doctors can prescribe RU-486 for patients in “other states,” RU-486 can be shipped across states, women can travel across state lines to purchase RU-486, and so on. This is the current situation, and the availability of RU-486 has allowed a large fraction of abortions to continue, even in states with the most restrictive laws.

The legality of early term abortions is thus close to irrelevant, regardless of one’s views, since policy can do almost nothing to prevent the use of RU-486. Even if policy restricts or bans RU-486, underground markets will supply it to a degree similar to when it is legal. The interesting implication is that, from a purely practical perspective, technology has returned the abortion debate to its common law roots.

And even if the use of RU-486 is far from ideal, it is a better option than the alternative—later legal or illegal abortions—for all involved. Protecting access to RU-486 is advantageous under both a more and less restrictive regime: RU-486’s availability will make more restrictive abortion policy somewhat more politically tenable in restrictive states and should reduce the number of later abortions in liberal states. Moreover, RU-486 has important clinical utility, as it is used off-​label as a less-​invasive alternative to surgery to manage early miscarriage and associated conditions.⁴

While libertarian opinions differ sharply on abortion policy, libertarians ought to agree on the value of applying federalist principles to deeply divisive issues. Federalism excels precisely where national consensus is hard to reach, as it avoids a one-​size-​fits-​all, top-​down mandate that inflames polarization and ignores cultural diversity. In the case of abortion, a federalist approach allows more individuals to live under laws that reflect their personal values, which is a meaningful good in itself.