(Posted with permission from the author)
Some people claim that abortion is legitimate because (i) a woman has a right to control her own reproduction, or (ii) a woman's body is her own property, and is therefore, rightfully subject to her exclusive control. Neither of these claims squarely supports the pro-abortionists.
I. First, a woman can control her own reproduction in three ways: viz., (i) by abstinence from sexual activity; (ii) by contraception; and (iii) by abortion. (She can also control it by destroying her offspring after birth; but very few pro-abortionists argue that infanticide is legitimate.) Now, no one doubts that a woman has a right to sexual abstinence and to contraception. But her "right to abortion" is in issue. Therefore, to say that abortion is legitimate because a woman has a right to control her own reproduction merely begs the question: it merely says "a woman has a right to abortion because a woman has a right to abortion". This is not an argument, merely a fiat statement. And mere fiat is not enough.
II. Second, even if a woman's body is her own property (which no libertarian would deny), the question still remains whether the body of the unborn child is also the woman's property.
A. As a matter of biology, an unborn child is not "part of a woman's body" in the same sense that her liver, heart, or other organs are. It is a separate entity involved in a special symbiotic relationship with the woman, but not part of her. Therefore, the unborn child cannot be the woman's property in that sense.
B. To be sure, the unborn child lives inside the woman's body. But an entity does not necessarily become the property of an individual because it is in or on that individual's property. (Even a trespasser on someone else's land does not thereby become the landowner's property, in the sense that the landowner may do whatever he will with the trespasser.) The question remains whether the unborn child has a right or privilege to live within the woman until its birth. If it does, it cannot be the woman's property to dispose of as she sees fit.
C. Of course, the woman always has the physical power to abort, and thereby destroy the unborn child; and, in the sense that the child is always subject to that sort of physical control, one could say metaphorically that the child is the woman's "property" in a physical sense. But the question is whether the unborn child is the woman's property in a moral or legal sense: that is, whether it is right or just for her to exercise whatever physical power she possesses. (The murderer always has physical power over his victim. That may make the victim metaphorically his "property" in a physical sense; but it does not make murder moral. Mere temporary might does not make right -- at least not to libertarians.) Therefore, the mere physical power of the woman over the unborn child does not make the child the woman's property in any sense meaningful to the ethical debate over abortion.
III. In sum, the argument that abortion is legitimate because a woman has a right to control her own body simply misses the point: which is, what right does a woman have when certain of her actions endanger the body, and therefore the life, of another person, the unborn child? Every person has a right to control his own body; but this gives no one a right to use his body to injure another person's body through aggression. It is not enough, therefore, to talk about the woman's property right. What must be considered is (i) whether the unborn child, an entity separate from the woman, is a person entitled to its own rights; and, if so, (ii) what its rights are as against the woman. If the child is not a person, or is a person without rights, then (by logical necessity) it will be the woman's property. But if the child is a person with rights, then (by logical necessity) to the extent of those rights it cannot be the woman's property. To invoke a woman's "property rights" in support of abortion before these two questions are answered against the unborn child is not to support abortion with arguments -- but instead to avoid rational argument entirely.
(Dr. Vieira is an attorney practicing constitutional law.)