Pro-Life Libertarians Can Cautiously Cheer the End of Roe

Libertarianism's proponents have long held conflicting opinions when weighing the limits of unborn babies' rights to life against the limits of pregnant women's rights to bodily autonomy and self-determination.

It's such an unsettled topic that Reason devoted a whole magazine issue to abortion all the way back in 1978. One's capacity for reasoning cannot be held as the standard for personhood, argued the writer Karl Pflock, because "any attempt to classify human beings as 'persons' and 'others'—the former protected by the nonaggression principle and the latter fair game—is doomed to failure. Such distinction making is a Pandora's box of social and ethical ills."  

"The only safe bet," he concluded, "is to accord every member of our madcap race the status of 'person,' no matter what his stage of life and development." 

Pflock's moral reasoning was seemingly out of step with the Libertarian Party platform of the time, which advocated for "the repeal of all laws restricting voluntary birth control or the right of the woman to make a personal moral choice regarding the termination of pregnancy." 

In the years since, the L.P. has embraced a less sweeping stance: "Recognizing that abortion is a sensitive issue and that people can hold good-faith views on all sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration." Though less vociferous a defense of abortion rights, the newer plank might also be more reflective of libertarian sentiment. Survey data on libertarians is hard to come by, but a 2008 survey found that one-third of libertarians are pro-life. A 2013 Public Religion Research Institute report, meanwhile, found that 57 percent of libertarians opposed making abortion access more difficult. Libertarians who consider themselves pro-life tend to hold a wide array of public policy beliefs and views on how to best learn from the past evils of other types of prohibition.

For those pro-life libertarians—and I count myself among them—the repeal of Roe v. Wade and Planned Parenthood v. Casey would be worth celebrating. Such a decision would not end abortion, but it would almost certainly reduce the number of abortions performed annually in the United States. That's something pro-life libertarians can cautiously cheer. 

In Roe and Casey, the Court guaranteed a woman's right to abortion and sought to minimize the "undue burdens" that might obstruct them. Overturning those decisions would not result in national abortion prohibition; instead, it would return the issue to state legislatures. The result would be a state-by-state patchwork of abortion law. Restrictions passed in some places would likely result in fewer abortions overall, though the size of the effect would depend on the precise nature of the legal patchwork. Under the assumption that 22 states will ban abortion if Roe is overturned, for example, Middlebury College economist Caitlin Knowles Myers estimates that 14 percent fewer abortions would be performed each year. 

This reduction in abortions would stem from the overturning of a Supreme Court decision that many libertarian-leaning legal scholars, as well as some pro-choice liberal legal minds, have long argued was deeply flawed from the outset. And it would do so via an essentially federalist approach that libertarians have long advocated for contentious issues. 

"On a practical level, if not on a moral one, there is a case in favor of devolving decision making on an issue that has split the country for decades," Reason's Stephanie Slade argued this week, noting that even abortion-rights advocates like the late Justice Ruth Bader Ginsburg took issue with the legal reasoning and manner in which Roe was decided.

"Roe was egregiously wrong from the start," noted Justice Samuel Alito in the Dobbs draft ruling that was leaked to Politico this week, which signals that the Court is likely to overturn Roe this year. "Its reasoning was exceptionally weak, and the decision has had damaging consequences."

Libertarians can defensibly argue that striking down Roe would mean striking down bad jurisprudence and properly returning the issue to the states. Here's how this would play out in practice: Some state constitutions, like New York's and California's, provide or will soon provide explicit protections for abortion rights in the event of a Roe repeal. Other states, in contrast, have trigger laws on the books meaning that, if Roe is overturned, abortion will automatically be made illegal except in cases where the life of the mother is endangered. (Some of the states also have exceptions for babies conceived via rape and incest.)

Though many libertarians believe federalism is only desirable if it's also liberty-preserving, and that abortion rights being stripped away in some states flies in the face of that, many libertarians believe that a move toward federalism returns us to long-held constitutional principles that are too frequently trampled all over. The idea, as always, is that legislative decision-making is most reflective of the will of the people when made at as local a level as possible. The median voter in Paducah, Kentucky, where providing an abortion would become a felony, is going to have different preferences and moral intuitions than his or her counterpart in New York City, where abortions would remain legal and easy to obtain. Federalists believe those differences ought to be reflected by their states' laws.

But for pro-life libertarians, the most consequential result of overturning Roe and Casey is that some number of unborn babies' lives will be saved via a legal regime that is defensible on libertarian grounds. This consideration is frequently cast aside as if it's a mere distraction. But for people like me, it's the crux of the issue. 

Take Texas, where I live, as an instructive case study. In September 2021, abortion was outlawed after six weeks. Texas Health and Human Services Commission reported 5,400 abortions statewide in August of that year and 2,200 in September, once the new law went into effect—a 60 percent reduction. But it would be wrong to consider Texas' data without further analysis. 

The actual estimate for how many people were dissuaded from getting abortions is closer to 10 percent, according to University of Texas at Austin researchers, since many women procured abortion pills online or traveled to nearby states. (Oklahoma and New Mexico in particular reported significant upticks.) Texas is also unique in that many women in the southern part of the state can easily hop the border to Mexico, where misoprostol, one of the two drugs used in a typical first-trimester abortion, can be cheaply procured over the counter—though it's somewhat less successful at inducing an abortion than when coupled with the second drug, mifepristone. 

For pro-life libertarians who see unborn babies as innocent rights-bearing individuals, even modestly reducing the number of lives ended by abortion brings us closer to our credo that we will not harm nonaggressing beings. It is consistent with a belief that our laws ought to be few in number, carefully crafted to protect individual rights. 

There are, of course, many ways that abortion restrictions can go wrong: Criminalizing abortions for ectopic pregnancies has been floated by some GOP legislators in places like Missouri (but removed from the legislation since). States may wrongly prosecute innocent women for miscarriages or struggle to handle the cases of women who engage in behaviors meant to harm their fetuses so that they will miscarry. Poorly crafted laws may also discourage women who procure illegal abortions from seeking necessary treatment at hospitals for subsequent infections. Extending leniency to such women so they can get the care they need, free of fear of being locked up, would be one of the surefire ways to reduce maternal mortality in this new legal paradigm. 

These issues all involve weighty tradeoffs with harrowing consequences. But for those of us who view the pro-life outlook and libertarianism as compatible, it matters that some significant number of the more than 600,000 abortions performed in our country annually, down from a peak of more than double that in the '80s, won't happen. 

A 14 percent reduction would amount to roughly 84,000 individuals each year whose lives will be saved. Each of them may someday contribute to the pluralistic richness we all get to experience in this wild, enormous country. Taking even imperfect steps to reduce the number of abortions will restore some moral consistency to a nation that aspires, yet frequently fails, to treat each person with dignity.