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Tuesday, September 29, 2015

Libertarians and Abortion Restrictions: Where's the Outrage?

            A group of small businesses are under relentless attack in this country. In virtually every state of the union, hostile legislatures pass increasingly demanding regulations, many so onerous that they threaten to drive them out of business. Of course, like many such restrictions on commercial entities, they are justified in the name of health and safety. But there is no evidence that these reams of regulations actually do advance any purported state interest in health or safety, nor have legislatures even attempted to find any such evidence. What’s more, these businesses are engaging in a constitutionally protected activity.

            That’s right—I’m talking about abortion restrictions. In particular, so-called TRAP laws (Targeted Regulations of Abortion Providers) that include requirements that abortion clinics meet certain health and safety standards that are either arbitrary or unnecessary for the sorts of procedures that they perform. One recent, and widespread, manifestation of TRAP laws are those that make abortion clinic licenses depend on the ability of their physicians to secure admitting privileges at local hospitals (discussed in these earlier posts: I and II). Courts have repeatedly found that these laws supply no safety benefits and that there is virtually no evidence to support states' claims that they protect women's health.

            This seems like precisely the sort of legislation that libertarian groups should be calling out.

For example, the Institute for Justice’s website decries “arbitrary licensing and permitting laws” that undermine the “right to earn a living.” Indeed, that organization has been working to get courts to scrutinize such economic and commercial legislation more carefully than they do under the current regime of ultra-lax rational basis review. Similarly, the Cato Institute, which is “dedicated to the principles of individual liberty, limited government, free markets and peace,” trumpets the importance of “[s]ocial and economic freedom.” Yet none of these organizations appears to have taken a stand or otherwise vocally criticized the sorts of pretextual “health and safety” regulations that are becoming extremely common and profoundly threatening the ability of clinics to stay in business in many parts of the country. I’ll note, as well, that based on my unscientific survey of the matter, very few libertarian academics have spent much ink or intellectual energy on this issue, either. (One exception is Richard Epstein, a libertarian academic who disagrees with Roe but explains in this podcast why these sorts of restrictions are unconstitutional under Casey and undesirable from a libertarian perspective.)

So what gives? I think there are a number of explanations (probably at least as many explanations as there are libertarians), but I’ll hazard a few possibilities. One is that some libertarians think abortion regulations have a more legitimate foundation than other sorts of licensing laws and regulations. I suppose that depends on an underlying belief that either 1) fetuses are constitutional persons, entitled to the protection of the 14th Amendment, and therefore their interests trump any interest in economic liberty; or 2) fetuses are not constitutional persons, but the state’s interest in them is still weighty enough to trump the interest in economic liberty. It’s possible that a number of folks who espouse libertarianism embrace one of these two beliefs, but there’s no reason to think there would be consensus on this front. In addition, it’s important to note that this explanation assumes that those libertarian supporters of abortion restrictions would support them because they limit abortion access (i.e., protect fetuses), and not because they protect women’s health. The legislatures that pass these laws claim that they are justified by the interest in protecting women’s health, however, since Planned Parenthood v. Casey clearly held that it is unconstitutional to pass laws solely for the purposes of obstructing access to abortion.

Another, more practical possibility is that the issue is simply too divisive, and libertarian organizations do not want to take an official position on it for fear of alienating a portion of their staff and supporters. This seems a likely explanation for why libertarian organizations have not criticized abortion restrictions, though it wouldn’t explain the relative silence on the academic side.

 Finally, we have to consider the possibility that this issue hasn’t really garnered much attention among libertarians because, well, it’s a “women’s issue” and libertarians are, last time I checked, mostly men. So, blunt though this explanation may seem, maybe it’s just not an issue that is on their radar screens or one that seems worth engaging with. 

Other possibilities?

Posted by Jessie Hill on September 29, 2015 at 09:32 AM | Permalink


So libertarian institutions with dozens and dozens of writers and commentators get a free pass because of "limited resources," but a single commentator on a single blog isn't taken seriously because "thousands of other situations" aren't brought up? Perhaps it is those institutions' pleas you shouldn't be taking seriously.

Posted by: Michael | Oct 2, 2015 8:46:34 PM

There are plenty of situations where regulations interfere with personal freedoms that neither IJ nor Cato focus on. It is a "pet" cause of Professor Hill because she is bringing a post about this and not any of the other hundreds or thousands of other situations where regulation limits economic liberty. So unless this is the first in a series of posts highlighting regulatory burdens on economic liberty I'll continue to have a hard time taking her plea for libertarian help seriously.

Posted by: The Establishment | Sep 30, 2015 7:11:50 PM

There's nothing inconsistent about it. The split that Joe references is reasonable given differing opinions on the concept of life and personhood. All but the most absurd libertarians (or progressives) would argue that no one has a right to kill a month old baby. It's just line drawing back from there, with some libertarians drawing the line at birth, some at some moment between conception and birth, some at implantation in the uterus, and some at conception. For those libertarians who view it as an interference with another's rights to purposefully abort a baby, they are more than happy to tolerate regulation of abortion the same way they tolerate murder laws as an inhibition on liberty.

Posted by: A Non-E Mous | Sep 30, 2015 5:58:07 PM

Institute for Justice's website discusses the various causes they support & seems to include some that other major organizations address including being against campaign finance laws & for school choice.

It is not just that "a couple" of libertarian publications are not covering it either. Libertarians themselves have expressed abortion splits the movement. Legislators who state they are libertarian (or use some synonym) also make an exception. Perhaps, the author might want to add teeth to the personal survey alluded to and show Reason is something of an outlier.

Finally, per the other response, why is this merely a "pet" cause as compared to a telling exception that interferes in a basic way in respect to personal freedom. If it is a great wrong to require some people to purchase health insurance to avoid a tax, why is this not merely a "pet cause"? Singling out one medical procedure like this, one involving basic control of one's body, seems a bit less trivial.

Posted by: Joe | Sep 30, 2015 2:53:36 PM

I question the premise. Reason Magazine is a leading libertarian organization, and it has five articles about TRAP laws going back to 2012 (as can be shown by typing "Targeted Regulation of Abortion Providers" into their search function). That a couple libertarian publications are not covering TRAP laws does not mean all are ignoring it.

Moreover, particularly for IJ, they do have limited resources and presumably feel they should spend them where they can go the most good in their view, which means bringing litigation and focusing attention on issues that no one else will. Since larger, better-funded organizations like the ACLU, NARAL, and so forth already will challenge TRAP laws, but will not challenge the economic regulations that IJ does, IJ spending resources on TRAP laws does not make much sense from its perspective.

Posted by: CalderonX | Sep 30, 2015 2:40:08 PM

Perhaps its just that the named libertarian institutions have limited resources and choose to allocate them according to a certain set of preferences. Or maybe they haven't been solicited to work on this issue. Just because this is the original poster's pet cause doesn't make it everyone's pet cause. IJ and Cato spend plenty of time and money fighting regulations in several arenas. Maybe they will get to this one, maybe they won't but to suggest that they should replace one of their current issues with this one simply because you view it important is ridiculous.

Posted by: The Establishment | Sep 30, 2015 2:03:58 PM

We live in a constitutional system and libertarians logically have used constitutional terminology. Natural law can easily fit in, including when applying the Ninth Amendment or due process of law.

Posted by: Joe | Sep 30, 2015 10:11:11 AM

Why do you put the argument in terms of "constitutional persons" or "the state's interest" in the fetus? I would expect those libertarians who are opposed to abortion to oppose it on grounds of natural rights not constitutional law, to believe that the fetus is a person with a right not to be killed.

Posted by: David Friedman | Sep 30, 2015 3:27:05 AM

up to par?

Abortion is singled out here as is Planned Parenthood, putting aside the dubious nature of the factual claims being made. An argument is made that they should be singled out, particularly given concerns of human life (citing argument, not making it), but that's different from evenhandness.

The Cato Institute each year puts out an analysis of the Supreme Court term (the last one can be found online) and when the second Carhart case was up, there was an article written in the collection holding that the federal law should have been struck down on federalism grounds. I recall a National Review op-ed suggesting the same.

So, a small nod for consistency. But, libertarians as well as those who use that term do often tend to be somewhat selective. The same applies to use of executive power overseas. Often we are merely dealing with conservatives, the libertarian or "less government" label fiction.

Sometimes, the libertarian will argue that abortion is different though even there the whole PP controversy now seems a bit off (if abortion already occurs, the pure libertarian should be okay EVEN IF they sold fetal tissue ... coercion is alleged in some fashion, but I doubt PP opponents are willing to grant fetal tissue sales are okay w/o it).

But, if something as open to debate in society like abortion, involving a person giving up control of their body can be open to government regulation, why not a range of things such as merely requiring public businesses to serve all comers? Taking control of one's body away from a woman to help third parties seems much worse than forcing people to buy health insurance, again using rhetoric without necessarily signing on to it.

Posted by: Joe | Sep 29, 2015 12:42:05 PM

One way I think it is seen is that a loophole is being closed. This merely beings PP up to par as far as regulatory burdens other businesses face. The reasoning behind the regulation, safety in PP's case, is no more or less dubious than in other cases of business regulation.

Posted by: Patrick | Sep 29, 2015 12:01:46 PM

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