The following article appeared in the March 1996 issue of Colorado Liberty, the monthly publication of the Libertarian Party of Colorado.
Abortion and the Tenth Amendment
The issue of abortion has been discussed over the past several issues in letters by Libertarians Christine Shock, Harry Browne, and Jan Duncan. Particular concern was directed at the precise role the federal government should play versus that which should be left to state governments. While I am under no illusion that this matter is easily settled, I'd nevertheless like to offer a few observations.
The first point I believe we need to recognize is that Libertarians of good conscience can come down on either side of the abortion issue. On the one hand, any attempt to prevent a woman from exercising control over her own reproductive functions can be clearly seen as an initiation of force against her right to control her most fundamental article of property, her body.
Alternatively if one concedes that the fetus is a human being in its own right, with the same rights to life, liberty, and property enjoyed by its mother, then her act to terminate her pregnancy can be seen as an initiation of force against the unborn child. Since any Libertarian moral analysis ultimately hinges on a determination of where force is being initiated, one can clearly go either way here, depending on whether or not one accepts, for whatever personal reasons (religious or secular), the basic proposition that an unborn fetus is, in fact, an actual human being.
Considerably less ambiguity exists on the question of whether government should attempt to prohibit the practice. Let us imagine for a moment that abortion were outlawed, on the grounds that it constitutes murder. The implications for enforcement of such laws are grimly clear: females of childbearing age would have to be regarded as possible murder suspects at all times. Their fertility and sexual activities would require monitoring, and no doubt there would be random pregnancy tests for all federal workers. (Whether in the name of gender equality such tests would also be given to men I leave to the reader's imagination.) Miscarriages would be investigated as potential homicides. Abortion-inducing substances, from RU-486 to common celery, would have to be strictly prohibited. Medical censorship would make that practiced by the FDA appear mild. Border controls would be instituted to ensure that pregnant women who left the country returned with child, in one sense or another. Women and their doctors who performed abortions would be given lengthy (probably mandatory) prison sentences.
In short, the result would be to take whatever percentage of our population is represented by women of childbearing age, and brand them with the scarlet letter 'A' -- which in this case would stand for "abortionist" -- much as blacks and hispanics have been branded with 'D' for "drug-user." And yet these efforts would surely be of no better efficacy than those directed at the eradication of drugs, guns, pornography, or poverty.
Which brings me to the issue of the Tenth Amendment. It is abundantly clear that attempts to enforce abortion laws would seriously violate rights guaranteed in the First, Fourth, Fifth, Eighth, and Ninth Amendments, which should be ample evidence that the federal government lacks authority to even contemplate such prohibitions. But what about the state governments? Shouldn't the same argument apply to them?
This question, and its obvious gut-level answer, illustrate that even Libertarians are not immune to the desire to exercise the power of the federal government in a just cause. We must recall, however, that in its original context the Bill of Rights did not establish rights, but listed limitations on the actions of the new federal government. As a moral manifesto, it has no peer, and remains an inspiration to champions of of human freedom all over the world. But as a legal document, it had no force outside the sphere of enumerated federal powers until the later Fourteenth Amendment, with its supremacy clause, was added to it.
This addition was prompted by the need to give teeth to another Civil War Amendment, the Thirteenth, which prohibited slavery. And can anyone deny that the eradication of slavery was a noble goal?
Unfortunately this victory came at a high price. While the Fourteenth Amendment may have forced recalcitrant Southern states to eliminate slavery -- at least in the legal sense -- it also implicitly negated the Tenth Amendment and legitimized the principle of federal supremacy, thereby laying the legal foundations for a central government powerful enough to make us all slaves.
No government can be given power for good without an equal power for evil. Indeed, as if by some law of political entropy, the evil comes inevitably to outweigh the good. We Libertarians must consider carefully whenever we advocate the use of federal power to right or prevent some wrong done by state or local governments, that the existence of that same power will oneday -- inevitably -- be turned against us. We must ask ourselves whether we seek to lay hands on the hilt of the sword of state to wield it, or to sheathe it. If we choose to wield it, we must remember that it has two edges, and that hands other than our own will hold it after us.
I would love to dictate to all fifty state governments that they cannot ban abortion, or firearms, or drugs, or any act or item that does not represent a clear initiation of force against individuals. But I have come to believe that this desire misleads, and contains the seeds of its own undoing. So now only federal impotence will satisfy me. State and even local governments can be rapacious destroyers of liberty. But I can no longer credit the argument that to defend ourselves we must deliver our fates into the hands of an even greater destroyer, and then grapple for control of that dangerous leviathan with all of our various opponents.
And so while I disagree with his personal convictions on abortion, I commend Harry Browne for his consistency in standing by his principles. He tells us that government doesn't work, and never could, because its power springs from coercion. He does not then pretend that as President he could abolish oppression at all levels of government through exercise of federal supremacy. This is to his credit.
Like Middle-Earth's One Ring to Rule Them All, the power of the federal government must not be used, but unmade.