Transcript: Rights and Obligations of Pregnancy and Child Support

Controversies in Libertarianism, Podcast 2

Date of recording: June 18, 2025, The Savvy Street Show

Host: Vinay Kolhatkar. Guests: Walter Block, Roger Bissell

 

For those who prefer to watch the video, it is here.

Editor’s Note: The Savvy Street Show’s AI-generated transcripts are edited for removal of repetitions and pause terms, and for grammar and clarity. Explanatory references are added in parentheses. Material edits are advised to the reader as edits [in square brackets].

Summary

In this episode of The Savvy Street Show, the panelists delve into the controversial topic of abortion within the framework of libertarianism. Walter Block presents his unique stance known as evictionism, which argues that while a fetus is a trespasser in the mother’s body, it is innocent and should not be killed. Roger Bissell offers a contrasting view, advocating for abortion on demand in the first two trimesters while imposing restrictions in the third trimester based on the viability of the fetus. The discussion also touches on the differing perspectives of prominent libertarian figures like Murray Rothbard and Ayn Rand, highlighting the complexities of the abortion debate in libertarian thought. In this conversation, the participants delve into philosophical discussions surrounding individual rights, the nature of personhood, and the ethical implications of parental obligations. They explore the viability of fetuses and the legal and moral responsibilities of parents. The dialogue also touches on the distinction between positive and negative rights, the concept of implicit contracts, and the responsibilities that arise from creating a helpless being. The conversation is rich with nuanced arguments and counterarguments, reflecting the depth of the topic at hand.

Takeaways

1. The conversation illustrates the diversity of thought within libertarianism.
2. The discussion reflects broader libertarian controversies.
3. Both Block and Bissell present principled arguments for their positions.
4. Walter Block believes the fetus is a trespasser in the mother’s body.
5. A right to life implies obligations that contradict libertarian principles.
6. Eviction arguments raise complex ethical questions.
7. Roger Bissell supports abortion on demand only in the first two trimesters.
8. Parents have obligations to care for their children.
9. Implicit contracts can arise in various situations.

Sound Bites

1. “Evictionism is neither pro-life nor pro-choice.”
2. “The baby is a trespasser.”
3. “Rights accrue with brain birth.”
4. “There is no such thing as a right to life.”
5. “I would not force her to do anything.”

 

Vinay Kolhatkar

Good evening and welcome back to The Savvy Street Show. We are continuing our series on controversies in libertarianism. Today’s is podcast two, and I have switched places with Roger. No, I’m not in Nashville, Tennessee. I’m still where I used to be, but Roger is now a panelist instead of a moderator.

So, first we have Walter Block, an eminent economist and libertarian theorist. Welcome to the show, Walter.

 

Walter Block

Thanks for having me.

 

Vinay Kolhatkar

And we also have Roger Bissell, who now is wearing a different hat, as you can see. It’s full of books and a bookcase. Welcome to the show, Roger.

 

Roger Bissell

Thanks, Vinay.

 

Vinay Kolhatkar

Okay, we’ll jump in with a fairly simple question. I wanted both of you to state your respective positions on abortion, starting with Walter.

 

Walter Block

I think both pro-life and pro-choice are contrary to libertarianism.

My position is called “evictionism,” and evictionism is neither pro-life nor pro-choice. I think both pro-life and pro-choice are contrary to libertarianism, and I predicate my view on the basis of libertarianism. My understanding of libertarianism is twofold or two basic foundations. One is the non-aggression axiom or the non-aggression principle. You can do whatever you want, just don’t invade or murder or rape or steal the persons or property of other people. And second, private property rights based on homesteading, who owns the property in question. I start off with a little bit of pro-life. That is, I think that human life begins with the fertilized egg or with conception. There are really only three choices. One, human life starts when the sperm hits the egg or gets into the egg, birth, [and] the third choice is some intermediate position, like when the heart beats or the brain waves are on or something like that. I reject the other two.

Birth is just a little change of address.

Why do I reject birth? Because birth is just a little change of address. Five minutes before birth, the fetus, the preborn baby, looks as much like the baby five minutes after birth as you and I look five minutes or 10 minutes apart. It’s just a change of address. First, the preborn baby is inside the mother, and then he’s outside the mother and she’s holding him on her chest. So, it’s a move from her stomach to her chest, and that’s a move of 10 inches or a foot. So, it’s insignificant and the time is insignificant, and the baby looks the same except the placenta is cut. I can’t see that that’s a gigantic change any more than I can see it’s a gigantic change when you and I are 10 minutes apart. Okay, the second option is some point in between. One possibility is the heart is beating, and that’s the usual determination. Certainly, that’s the determination made by the Jewish Talmud, and other people agree with that. When the heart starts beating, you’re a human being. Before you’re not, you’re just a bunch of cells. I think that that’s wrong because we do now have such a thing called heart transplants. So, I’m going to have a heart transplant. The first thing they do is, they give me a general anesthetic. But the first thing they do after that is they take my heart out of me. And they’re about to put a new heart in, and it takes a couple of minutes to take the one out and put the other in. You’ve got to sew it up, and God knows what they do, but it takes a little while. And then Roger comes along and shoots me. Yes, Roger, you shouldn’t do that. You rotten kid. He shoots me, and the question is, is he a murderer or is he just shooting bullets into a dead body? I don’t think he’s shooting bullets into a dead body. I’m not really dead. I’m still, the blood is flowing through me through some sort of artificial means, and I’m about to get a new heart, and I’m going to survive, and Roger is a rotten kid for shooting a live person.

The real Jewish tradition is that life begins when you graduate medical school.

So, I reject the idea that the heartbeat would be a definitive distinction between life and not life. The real Jewish tradition is that life begins when you graduate medical school.

[Much laughter]

Vinay Kolhatkar

In that case, I am still a zombie.

 

Walter Block

Obviously, I’m just kidding about that.

So, now we have the situation that ’there’s a baby inside the mother. Who owns the mother’s body? She does. Who else is the owner? It’s like her house, and the unwanted baby, I say, is like a trespasser. Now, it’s easy to see in the case of rape. The 12-year-old girl is walking down the street. She gets grabbed, she gets raped, she gets impregnated, and now there’s a little person growing inside of her. Well, this person is a trespasser. This person is a squatter. This person doesn’t belong there. And if you believe in private property rights, you have a right maybe not to kill, obviously not to kill this person because this person is totally innocent. I mean, you can’t get more innocent than a two-celled baby. There’s no mens rea, there’s no crime. Well, there is a crime on the part of the father, but not on the part of the baby. So, it’s an innocent trespasser. But according to libertarian theory, you have a right to evict but not kill. Now, in the first two trimesters, if you evict, the baby will die, and therefore, evictionism sort of looks like pro-choice because the baby dies and the woman can get rid of the fetus or the preborn baby. On the other hand, in the third trimester, the baby is viable outside the womb, and now you can evict but you can’t kill, so now evictionism starts to look like pro-life. So, evictionism is really a compromise position between pro-life and pro-choice. I say it’s a principled compromise. What do I mean by principled compromise? Roger says two plus two is five. Vinay says two plus two is seven. I say two plus two is six. That’s a compromise. I mean, I’m halfway between Roger and Vinay on this mathematical equation, but it’s not a principled compromise because you can’t deduce two plus two is six from anything except that I want to compromise between these two guys. But evictionism, I say, is a principled compromise. It’s not just a compromise for the sake of compromising. It’s a principled compromise because it’s predicated on private property rights and homesteading. Now, it’s true that most babies happily are not the product of rape, I think very few, but even if no rape ever occurred, we can still visualize this and deal with that situation.

Now let’s take the case of voluntary sexual intercourse. Even if the mother uses birth control, she knows that birth control is not 100%, so the argument against evictionism is, well, she invited the baby in. And I say, no, that’s not true. The idea is she invited the baby in, and therefore she’s got to keep him for nine months. Well, look, if I invite you guys for dinner and then at around 10 o’clock I start hinting, you know, I got to get up early tomorrow, and you say, oh, I’m staying nine months, that’s not cricket. That’s not kosher. But worse for the invitation thesis is, in order for there to be an invitation, there has to be an inviter, a mother, and there has to be an invitee, the baby. But at the time of sexual intercourse, remember we said that the baby doesn’t exist until the sperm hits the egg? Well, it takes a little while for the sperm to go up the fallopian tubes and connect, so at the time of sexual intercourse, there couldn’t be an invitation because an invitation requires two people, an inviter and an invitee. There is only one case where the mother is obligated, and here it’s totally pro-life, where the mother is obligated to keep that baby for nine months, and that’s called the host-mother case. Me and my wife, we can’t conceive. We take a sperm and an egg from somewhere, who knows, and then we stick it into some woman who agrees, and we pay her $50,000 or $100,000 or whatever, and now she is obligated to not evict the baby, because she was paid not to do that and to keep the baby for the full term. So, that’s the evictionist theory, and I stand by evictionism. I think pro-life is very, very wrong because this 12-year-old girl, once she got raped and now she’s being punished again, she has to keep the baby for nine months, that doesn’t seem just. And the pro-choice seems even worse. They think of the baby as just a bunch of cells, sort of like your appendix. And look, you can take your appendix out if you need to, and you’re not violating any rights, but you kill a baby, a preborn baby, that’s not at all like an appendix. So, I rest my case in favor of evictionism.

 

Vinay Kolhatkar

Thank you. I might just add a couple of things here. The actual pro-lifers, so to speak, do sometimes apply exceptions—one where the mother’s life is at physical risk of death, and many others apply the rape and incest exception as well. Everything other than zero days I call pro-choice, whether the choice ends in 12 weeks, 24 weeks, 35 weeks, or anything before the moment of birth, effectively, is pro-choice as well, because there is a decision window. Anyway, let’s turn to Roger for his view.

 

Roger Bissell

My view may sound suspiciously like Walter’s in some respects and maybe alarmingly different from his [in some others]. It’s got elements of the pro-choice viewpoint and of the pro-life one, and it’s got some Ayn Rand in it, and it’s got some libertarianism in it, and maybe just a little bit of Aquinas and some modern science, modern medicine. So, it’s sounds like, my goodness, what kind of patchwork quilt is he going to give us? Well, here it comes.

My position is that abortion on demand should be legal without restrictions during the first two trimesters, but third trimester abortions should only be permitted if (1) the unborn child does not yet have a functioning rational brain, and I will explain that, or (2) abortion is the only way to save the life of the mother. In other words, if you can evict the child without jeopardizing the mother, and without killing the baby, then that would be required instead of the very ghastly kinds of late abortions.

This has been part of medical knowledge for about 50 years, and they even had a term for it called “brain birth.”

So, I’m going to unpack this third trimester restriction a little bit, because I think everybody understands what pro-choice is all about. The second criterion is pretty clear. Destruction of the unborn child must be the only way to save the mother if continuing the pregnancy puts her life in danger. The first criterion is kind of a bright line that we have thanks to modern medicine. Prior to about 1975 or so, it was kind of a rule of thumb that babies, that’s kind of the earliest, where their heart and lung setup was good enough to put them in an incubator and they’ll be okay. But one thing that was discovered around 1975. There was a doctor in New York City called Dominic Purpura, P U R P U R A, and he found that the EEG patterns, the neural patterns of babies right about that time start looking essentially like those of a newborn baby or a child or an adult and essentially different from those of embryos and fetuses from the first and second trimester. They have different levels of brain activity for the first time. They show waking and sleeping. They show patterned perceptual awareness so that they recognize their mother’s voice, et cetera. This has been, like I said, part of medical knowledge for about 50 years, and they even had a term for it called “brain birth.” I know you’re familiar with cases of brain death, like when to pull the plug on coma victims and people who have had a severe brain injury, at what point is there a medical criterion for not having any more life support? They say, well, once the brain activity has shut down and can’t be restored. Okay, well, that’s “brain death” and brain birth was when that brain activity, this characteristically human appears for the first time. So, you’ve got around the 26th to the 28th week, the third trimester as Roe v. Wade referred to it. Ayn Rand based rights on having the faculty of reason, and in this respect, I borrow from her. She based rights on reason, and it’s the capacity to perceive and then to conceptually identify the world, and it’s distinctively human. Animals perceive, but they don’t form ideas and converse and have science and have careers and all this other stuff. So, unlike the animals, we do this, and we spend six months in the womb without that capacity. But once we get it, that’s a tipping point. It’s a whole new ball game.

Now, I first stated this back in 1981 in an article in Reason magazine called “A Calm Look at Abortion Arguments,” and boy, you don’t hear those [calm abortion arguments] too often, but I think tonight we can do that. I thought back then it was very moderate, “half a loaf” for everybody. But I did look at the statistics that Vinay sent me a few days ago, and it’s really a different story. After the 26th week, abortions are just two hundreds of 1%. In other words, that’s 2% of 1% of the total number of abortions. So basically, to be honest, my view is essentially pro-choice. It permits about 99.8% of all abortions, and there’s only a small carve-out of pro-life for fully viable babies with healthy mothers. Now, that’s obviously not the middle of the road, right? It’s a compromise, but it seems like a compromise with a very small percentage, maybe several hundred cases. And yet, I’ve had people on both sides of the aisle or both sides of the trimester, not only right radical pro-lifers, but also radical pro-choice people just revile this position, and I’ve been hearing this for over four decades in print, in emails, in online discussions, so maybe it is kind of a moderate position, anyway.

 

Vinay Kolhatkar

Some of those third trimester procedures have a late discovery rather than a late decision.

May I just add that, in some cases, I believe the risk to the mother’s health is discovered very, very late in the third trimester that she possibly may not survive. Perhaps some of those third trimester procedures have a late discovery rather than a late decision. So, they [the procedures] may be triggered by late decision because her partner suddenly left her or risk to mother, in which case, even pro-lifers give that exception. So, it is virtually the same as a pro-choice position. I know Roger mentioned Ayn Rand, and Walter, you didn’t mention Murray Rothbard. To your knowledge, [Walter], was Murray Rothbard’s position the same as yours?

 

Walter Block

No, he was pro-choice, and it’s interesting that Ron Paul was pro-life. You can’t get two greater leaders. I think no one would disagree with me when we say of the libertarian movement, who are our godfathers or who are our leaders? Certainly, Murray Rothbard and Ron Paul are mentioned, maybe Ayn Rand, but certainly those two. Which shows the complexity of the issue, because here are two theoreticians, and they come up with the exact opposite points of view. They can’t both be right. And by the way, neither of them got excommunicated from the libertarian movement for being wrong, for not deducing correctly from libertarian principles. One of them has got to be wrong. I say both are wrong, but at least one of them has got to be wrong. And this contrasts with my experience over Israel, which is a little off the subject, but I can’t resist mentioning that.

But I wanted to comment on one or two things that Roger said. First of all, I disagree with Ayn Rand on this rationality business. As far as I’m concerned, no socialist is rational. And therefore, we should kill the socialists. They have no rights. I mean, that’s obviously problematic, let me put it that way. Although some of us might be tempted, we have to hold back on that. And I don’t know, I have two children. They’re now 47 and 45. But when they were a year old, they weren’t rational. It was a long time before they got rational. Little kids are not rational. So, the idea that you have to have rationality in order to have rights, I think, is . . .

 

Vinay Kolhatkar

I think he meant the capacity for rational thinking.

 

Walter Block

Well, those socialists don’t have the capacity for rational thinking. Don’t tell me that they have that capacity.

 

Roger Bissell

Yes, they do. They don’t exercise it consistently. They’re very inconsistent, woefully so.

 

Walter Block

I don’t think they have the capacity for rationality . . .

 

Vinay Kolhatkar

Michael Rectenwald was a Marxist professor and became the Mises [Caucus Libertarian Party nominee for president] . . .

 

Walter Block

. . . and I don’t think two-year-olds have the capacity for rationality. Now, maybe in the future the two-year-olds will, but right now socialists and two-year-olds don’t have the capacity for rationality.

Now, with regard to the brain waves, I gave you the example of the heart, but I could also give an example of brain waves. Let’s say my brain is troubled, and now they’re going to do something, and they shut my brain down for a couple of minutes, and Roger, rotten kid, shoots me again, and I say he is guilty of murder, not just of putting a bullet in a dead body. So, I reject the Randian argument.

According to the pro-life situation, you have two human beings. Why pick the mother?

I also think that this business of the mother’s life versus the baby’s life—now, this is supposedly an exception for the pro-lifers. The pro-lifers say, okay, look, the baby’s got to go nine months, fine. However, if the mother is in danger, then we should take the side of the mother. Why? According to the pro-life situation, you have two human beings. Why pick the mother? Who the hell is she? That baby is just as much human as she is, according to pro-life, and in my view also, so why are we picking her? I mean, it seems arbitrary and capricious to pick the mother over the baby, because the baby is just as much a human being. So, now we have to resort to Rothbardian property rights theory.

Namely, the reason we picked the mother is because the baby is a trespasser, and trespassers are people who shouldn’t be there in the first place. Again, it’s true that very few abortions are required due to rape, and also the statistics are that very few abortions occur in the last three months. But that’s irrelevant. We’re not looking at statistics here. We’re not looking at numbers. We’re looking at justice. And the only reason that you can favor the mother, when it’s the mother versus the baby, I favor the mother because she’s the owner of that property, and the baby is a trespasser. Now, the idea that the baby is a trespasser is alien to both groups. One of the contributions of evictionism is trespassing. And therefore, I say that evictionism is a principled compromise. Look, there are many cases where the court will say, in the first two months or the first two trimesters, roughly, you can kill the baby, and you can’t in the third. But that’s just a political compromise. We’re libertarians. We’re going to do better than making a political compromise. And I think evictionism is solid and not vulnerable to any criticism.

 

Vinay Kolhatkar

Thank you, Walter. Can I just add, I read Rothbard’s The Ethics of Liberty, and he presents the evictionism argument, but you said you’re different. I mean, what he doesn’t mention is viability. Unfortunately he passed away in 1995, and viability outside the womb was probably very difficult back then, in some cases like 25-30 weeks, which may be different now due to medical advances. So, I was intrigued by why you said your position is different from Rothbard’s which is the same as evictionism, save the difference in scientific advances.

 

Walter Block

Murray is pro-choice. Murray says life doesn’t begin until birth. Well, if life doesn’t begin until birth, the eight-month-old pre-born baby is just a bunch of cells like the appendix. You can kill your appendix if you want. Well, you can kill the baby. So, Murray is not evictionist. He is pro-choice.

 

Vinay Kolhatkar

Roger, any views on what Walter said or what you perceived Ayn Rand’s position to be and how you disagree, if you do, with Ayn Rand?

 

Roger Bissell

Well, do you have all night? I agree with evictionism until you get to the point where you have invited a person in. I think that once the mother has carried the baby to where it’s viable, then the issue is, you have invited the baby to stay in there, until now (say, at 7 months), it’s viable. I would maintain that’s when its rights begin—when it’s viable. Now, I maintain [that] it’s brain viability [that is crucial], but other people [argue for] heart-lung viability. But premature babies, once they’re born, they are recognized as having the right to life. And as Walter said earlier, once they get near the moment of natural birth, there’s virtually no difference between the baby that’s not yet born and the one that is just born. And, since that’s the case, then you’ve got a guest. You don’t just have an embryo, you have a guest with rights, and then you’ve got two or three months or several weeks. It’s just as if, suppose you invited a person to your cabin in the mountains in October and my gosh, it was a dreadful winter. We had snow. We were snowbound for three months, and you can evict an unwanted guest only if it doesn’t cause them to die. You can’t just throw somebody out in the blizzard that you have invited to your home unless they are threatening your life, and then you can do that. So, that’s how I would modify evictionism. I would say you have to be very careful once you have invited someone in. Now, sure, the newly conceived baby is not invited unless it was deliberately intended. But the point is, we’re talking about viable babies that have rights, not one that is like one day or two days conceived.

I did want to compare my view to Ayn Rand’s because you had asked Walter about his comparison to Rothbard, and so, here it goes. I would say Rand was not consistent. On the one hand, she said that the facts of medicine and biology are important, but all that really matters legally is whether the baby is separate from the mother’s body. So, she came down as being ultimately a radical pro-choice person. There’s all kinds of evidence from her statements and her written stuff between 1967 and 1975 that she considered a moderate position like mine or Walter’s. [In Ayn Rand Answers: The Best of Her Q & A, Rand expressly says “first trimester.”]

Rand said we can debate that a child might become conscious before birth, maybe around three months, but science should decide that.

She said we can debate that a child might become conscious before birth, maybe around three months, but science should decide that. We might argue, she said, that an embryo or fetus is medically alive at six to eight months. She said abortion at the last minute when the baby is formed is a different issue than an unformed embryo. And she said, you can argue about the latter stages of pregnancy. But on the other hand, she also said very strictly that only individual human beings have rights. Only living human beings that are born and no longer part of the mother’s body are individuals. Therefore, a child cannot acquire rights until it is born separate from the mother’s body. So, she did have two minds on the subject. It was very troubling and probably not morally justifiable in her mind to abort a well-formed fetus unless the mother’s life was in jeopardy. But she also held babies don’t acquire rights until they’re born. That last part is what many, many Randians hang their hats on, and that’s the part I object to. The logic is okay, but there’s a problem with that premise. It says human beings are not living human beings until they’re physically born [i.e., separated from the mother’s body], and human beings are not individuals until they’re separate from the mother’s body.

At the seventh month in the womb, a normally developed unborn baby has had brain birth.

Well, first of all, I stated that at the seventh month in the womb, a normally developed unborn baby has had brain birth. And if rights accrue to you, once you are born, once your brain is born, and that’s the organ on which rights depend, once the brain is essentially functioning like a baby or an adult or a child, then your right to life begins then and there, not two or three months later after the doctor pulls you out into the world. Now, secondly, if your body can be safely removed, if you can be safely evicted, then even if you don’t actually yet exist as a separate individual, you are capable of doing so and actually will after a pretty brief procedure, like a few minutes, and you have the “change of address” that Walter referred to—you know, you just move a couple of feet, a few inches away from where you were, lo and behold. So, your rights accrue not with full term delivery, if it requires you to be an individual because you can be an individual, not in the sense that a newly conceived embryo can be an individual, but the baby that’s viable, that can be removed safely and securely. Now, that’s an important point that I think orthodox Randians sometimes forget. Actual separate existence isn’t fundamental to being an individual any more than an actual process of reason is fundamental to being a rational being. If I’m asleep, and being recognized as a rational being requires that I’m doing a geometry problem, I’m in trouble. You know, around some Objectivists, you maybe want to be careful where you take your nap, because if your rights and your rational faculty, your reason, goes away when you’re asleep, you might be in serious trouble.

 

Vinay Kolhatkar

It’s always been potential rationality that gets you over the line, and that’s what gets you over the line in the case of a baby, a one-year-old, two-year-old, three-year-old. They don’t reason, they don’t get the full level of self-awareness, and they have rights under Objectivism and libertarianism, for their potential to become complete human beings with a rational faculty. So, since you have already commented on each other’s position, I wanted to bring one issue which has been personally plaguing me: this viability question. Under the eviction argument, if it’s viable, evict it, and even if it’s unviable, evict it. Not sure whether Roger wants to evict it or force the mother [to carry to term]. If it is too late, if it’s the third trimester, would you evict it or force the mother to keep the baby in the womb by law? What would you do, Roger?

 

Roger Bissell

I think Walter wants to talk.

 

Walter Block

I have a few comments on what Roger just said. I congratulate him for the sleep business. I think the sleep [example] is a beautiful refutation of the Ayn Rand view. You’d better not go to sleep, otherwise who knows what will happen to you. I have several criticisms though. One, both of you refer to the baby as “it,” and I can’t be too harsh on you because I’ve done that myself, and I still think of it that way. Even nowadays, I’ll write and I’ll put “it,” and then I have to change it, because that is not an “it.” That is a person. And so, I refer to “he” or “he or she” or something like that. Minor point, sort of a typographical error. It’s a person.

 

Roger Bissell

It’s a third person—a third-person person.

 

Walter Block

It is a person. So, we shouldn’t refer to it . . . to him as an “it.” See, I just did it. We shouldn’t refer to it.

 

Vinay Kolhatkar

Yes, in the English language, the child [infant] of unknown gender is referred to as that. {It was common practice, but nowadays frowned upon}.

 

Walter Block

I don’t think in proper English language, if you don’t know the gender of a two-year-old, you refer to him or her as “it.” I think it is very important.

Now, the second point that I wanted to make is this inviting and guesting. I did talk about an invitee, and I don’t think that it could be an invitee because at the time of sexual intercourse, there was no “it” or no preborn baby to invite. And I insist that for there to be an invitation, there has to be an inviter and an invitee. There was no invitee.

Now, I also disagree when you say “right to life.” There is no such thing as a right to life. A right to life is a positive right. If I have a right to life, then you guys have an obligation to feed me if I’m starving. This is anathema to libertarianism. I think that if we have a right to life—look, there are starving people in Africa somewhere right now. If they have a right to life, we are murderers. Rather, I think this is also a typographical error. Namely, the right way to say this is, we all have a right not to be murdered because libertarianism is predicated on negative liberty. There is no positive liberty. If you have a right to life, then other people have an obligation to feed you. And now we’re into egalitarianism and welfare systems.

The third point is this business of the brain waves. Again, I’m now having an operation on my brain, and my brain stops having brain waves, and I no longer have the capacity for rationality unless the doctors pick up my brain, which they’re going to do. So, I don’t think that brain waves are relevant. And I don’t think that birth is relevant. And I think that the only thing that is relevant is conception. So, Roger and I disagree. Your turn, Roger.

 

Roger Bissell

I would say this whole thing about positive rights is a fallacy because, for instance, suppose I ran over Walter with my car and turned him into a helpless paraplegic. Now I’m legally and morally liable because here was a human being, and I transformed him into a helpless human being. Now, maybe he might say, well, I can still do stuff. So, just go on your way. Or he might say, I want your house—or do you have good insurance, Roger? Now, Walter would not be a parasite or a looter, but simply somebody that I had incurred a just legal obligation to. And that’s not a positive right. It’s not like a welfare right that everybody in sundry, 300 million people in the United States have a legal obligation to provide him sustenance. It’s on me because I committed the action, and when a woman invites a baby to stay in her womb until the baby is viable and can be evicted, delivered safely as an individual that is recognized by the law as having rights, she either has the obligation—with her husband, hopefully—to support the baby or to find somebody else. You don’t invite somebody [who can’t swim] out on your boat and then throw them in the water, and that’s what it would be doing if you don’t take care of this helpless human being’s needs. So, that’s why I don’t regard it as a welfare right. I think that that is just not a sound argument.

Now, you wondered, would I force the woman [with a serious health condition] to carry the baby to term? No. The idea is, she goes to a doctor, they confer. He says, you’re going to die if you carry the baby to term. And she says, oh, then, I have a choice to make. I really have a serious choice to make. And some women choose to hold the baby in there as long as they possibly can and even to give up their life for the baby. I would not interfere with that choice. I would not interfere with her choice to remove the baby, if safely, or take the baby’s life, if that’s what was necessary to save her life. It’s entirely her choice, if there are no options for safely removing the baby. If there are, then by the principle of eviction, she would have to exercise that with a caesarian or an induced labor or something. But I would not force her to do to do anything, I would force her to refrain from unnecessarily killing the baby. Basically, that would be my position.

 

Vinay Kolhatkar

Okay, this is directed at both of you. One or two observations and my discomfort, Walter, with viability. The brain explodes in the third trimester. It triples in size from four ounces to 11 ounces. And viability is a difficult situation as is, because some doctors might say it’s a 50-50 chance the baby may survive, and some might say 80-20. And if the abortion was done without the classic evictionism, which means the fetus is dead on arrival on so-called birth, then some prosecutor might prosecute the woman later on under your law. That’s the first problem.

The second problem in the viability thesis is the cerebral cortex does not begin to develop until the third trimester. Neural activity is as early as 10 or 11 weeks, but the cerebral cortex, which fundamentally distinguishes human beings from any other in the animal kingdom, does not develop [till the third trimester]. So, you might have, Walter, a viable baby that is intellectually severely disabled, and you have forced the woman to be a parent of someone who is intellectually disabled, whereas at least the pro-life people might have said, okay, you keep carrying it in the womb, and you have a normal delivery of a normal child. How do you respond to that?

 

Walter Block

Well, I think that I go back to evictionism, and the woman has no obligation to keep the baby in her property. She didn’t invite the baby because there was no invitee at the time of intercourse. Certainly, in the case of rape, there was no invitation, no invitation, and yet all babies have equal rights. So, I reject that idea, and I think she can evict at any time but never kill, whereas the pro-life people say she can never evict, and the pro-choice people say she can kill at time, and I think both are wrong.

I wanted to return to one thing that Roger said when he ran me over with his car, and now he owes me something. I still don’t have a right to life, but I have a right to get him to keep me fed, but not because I have a right to life but because he has an obligation that he took on by himself. There is such a thing as an implicit contract. When I go into a restaurant and I order food, I have an implicit contract to pay, even though it doesn’t say anywhere that I have to pay. And now they give me the bill, and I say, huh, I thought this was free. No, there’s an implicit contract. And there’s also an implicit contract in the case of the restaurant owner not to poison me, even though there was no contract made, but there are implicit contracts. And I agree with Roger that I invite him to my cabin and the weather was fine, and now the weather turns very bad and it’s icy and he’ll die if I kick him out. Okay, I can see a case where I have an implicit contract not to do that. But I don’t have any implicit contract with a baby because I never invited the baby. I invited Roger to dinner in my cabin. So, it’s very different. I can’t stress enough that there was no invitation, [then] there are [no] implicit contracts. But I think that the analogy of the cabin and the invitee is very disanalogous to what’s going on with the mother and the baby.

 

Vinay Kolhatkar

Okay, before we let Roger answer your question, Walter, who is to look after this intellectually disabled, viable baby in your world of viability if you have evicted a fetus that’s 24 weeks old with no cerebral cortex developed at all? And it may develop in vivo, as they say, or in the lab, but what if it doesn’t [in vitro, in the lab]?

 

Walter Block

Well, nobody has an obligation to take care of anybody, because there are no positive rights. Hopefully the mother, the father, or the orphanage, or the charity, or the church will take care of babies. But again, I insist that in libertarianism there are no positive rights, only negative rights. I think that with positive rights, you’re moving toward egalitarianism and socialism, but there are negative rights. There are rights not to be murdered, rights not to be stolen from, rights not to be kidnapped, rights not to be raped. There are lot of negative rights, and that’s all that libertarianism consists of. But there are no positive rights, and Roger now has an obligation, maybe because he ran me down. But if we’re total strangers and I’m starving, he has no obligation. It would be nice if he helped me, but he’s not a murderer if he refuses.

 

Vinay Kolhatkar

Over to you, Roger.

 

Roger Bissell

Totally disagree. I do have a responsibility, not just moral, but a legal responsibility. And I don’t just mean a United States legal code responsibility. I mean a natural-rights responsibility. When I have impaired you, put you in a position of not being able to take care of yourself, I’ve rendered you helpless. You are now a helpless human being, and now what am I going to do about it? Refrain from killing you? No, I have to support you, and I have to support you until and unless your helplessness is remedied. And it wasn’t an invitation, and I didn’t say, hey, here, let me sign a contract to support you. No, I incurred this obligation because I put you in a position of being a helpless human being. And that is what a woman who carries a baby to viability does. She creates a situation where there is a helpless, viable human being who can exist outside her body as an individual but cannot exist without support. And if you put someone into the world who is helpless, if I may borrow Leonard Peikoff’s verbiage, you are jolly well obligated to take care of them until they don’t need your support anymore. And it’s not a positive right. It’s a legal obligation. And if that’s what a positive right is, it’s totally different from a welfare right. They package-deal welfare-right positive rights with the kind of support rights that are brought into being when you put somebody in a position of helplessness. That’s the best I can do. And I say the analogy is very strong, and I’m firm in disagreement with you, Walter, and I will have to agree to disagree because I can’t understand why that’s not an invitation, and why it’s not a legal obligation.

 

Walter Block

I’d like to try to respond to that. What Roger is saying, in effect, if I can put words in his mouth, is that there’s an analogy between him hitting me with a car and now he owes me something and a mother having a helpless baby. And I say that this analogy is wrong because what he did to me was he injured me. What the mother did to the baby is she did the opposite of injuring. She brought him to life. Namely, she improved the situation. I’m assuming that existence is better than non-existence. And when she gave birth to this baby or had before the birth, when she was pregnant with the baby, she was doing a boon to the baby. She was helping the baby. The very opposite of what Roger did to me when he ran me over with his car. So, I think the analogy fails. But I do think we’re now repeating ourselves, so I’ll turn it over to you now.

 

Vinay Kolhatkar

Okay, just to go back, Walter, there are two issues here. One is the issue of implicit contract. And this is my personal belief that if you get a second choice at pro-choice, if you get a new decision window to not have the baby, and you refuse it, you take the baby and the baby is fully formed, healthy or not, it has a proper birth, the parents, not just the woman, the biological parents do have a positive obligation to bring children to a level where they can be self-supporting. The issue of reasonable care is a positive contractual obligation by refusing two choices. First, they should have used contraception. Okay, it didn’t work. Second, you have a pro-choice situation up to 26 weeks or something. You’ve not done that either. Now it’s a deliberative choice. You’ve got to carry on now till you at least find new adoptive parents. And that’s a positive obligation even in libertarianism, to me, it has to be that way because otherwise you have Murray Rothbard saying at the bottom of page 100 in The Ethics of Liberty, “Parents should have no legal obligation to feed their children even if that results in starvation to death.” And that makes me very uncomfortable.

 

Walter Block

Let me respond to that. The story I wrote about was, the mother and father have birth, they come back from the hospital, they put the baby in a crib, and they refuse to feed the baby, and the baby dies. Are they criminals? I say yes, they are criminals. Why? And now I invented what I call Bagel Theory or the Blockian Proviso. So, what’s the Bagel Theory? Here’s a bagel. And a bagel has got three parts, a hole in the middle, the bagel itself, and then outside, and the question is, are you entitled to homestead in the format of a bagel? And the answer is no, you’re not entitled to homestead in the form of a bagel, and I’m assuming no helicopters and no bridges and no tunnels. Why are you not entitled to homestead land in the form of a bagel? Because then you will be controlling this area without having homesteaded it. And if you do that, you are a criminal.

We can’t own babies, but we can own the guardianship rights to the baby. How do we homestead the guardianship rights to the baby?

Okay, second part of this example: We can’t own babies, but we can own the guardianship rights to the baby. How do we homestead the guardianship rights to the baby? Well, first we give birth to the baby, and now we care and feed the baby. And I say that if you don’t want to keep feeding the baby, you don’t have to, because there are no positive rights. However, you now have an obligation, not a positive obligation, but you now have an obligation: if you don’t want to feed the baby, don’t just leave them in the crib starving them. Rather, go take them to an orphanage or to a church or police station somewhere. And why do you have to do this? Not because it’s a positive obligation, but because if you don’t do it, you’re a criminal. Why are you a criminal? Because you’re precluding other people from guardianship over the babies, just as you can’t homestead in this bagel theory, because if you do, you’re precluding or forestalling other people from getting that area inside the bagel.

So, that would be my answer to the question of, if parents don’t want to feed their baby or take care of the baby, diaper the baby. That’s fine. They don’t have an obligation to do it. And the only way they can keep the baby—look, Bill Gates could give my babies a better shot at life than I can. Let’s stipulate that that’s true. Does he have a right to take my babies from me? My babies are now 45 and 47 years old. No, he doesn’t because I and my wife have the right of being the guardian of the baby because we homesteaded the guardianship of the babies because we took care of them. But if we stop, then we must take them to an orphanage or some place of safety. And it’s not because we have positive rights, positive obligations that we didn’t incur, it’s because we want to not be a criminal. So, that would be my answer to your question.

 

Vinay Kolhatkar

Okay, Roger, you want to have the last word on this?

 

Roger Bissell

Sure, absolutely. We can’t be legally obligated to do the impossible. I certainly agree that if we don’t want to exercise guardianship rights over our child, then we should be legally obligated to find somebody who would, or at least leave them at the orphanage door, etc.

Now, back to the cabin in the mountains, and there’s this horrible blizzard, snowbound for three months. The baby’s born and the couple decides they don’t want to exercise their guardianship rights. What’s the status of the baby? I pose that because it seems like, well, they don’t have to, if they don’t want to, unless there’s no other option. And unless you want to give it to the wolves or something, maybe they’d raise the baby. I know that’s contrived, but a lot of this discussion [like] when I talk about running over somebody with my car and making them helpless, that’s contrived, too. So, this is a thought question, you know, and I’d like to know if they don’t have a positive obligation to take care of the baby, then what becomes of it when they don’t have the orphanage option?

 

Walter Block

Well, I’m looking forward to the next episode, and this was just a marvelous discussion, and I’m happy to be part of it.

 

Vinay Kolhatkar

Thank you, both. And to the viewers and listeners, good night and good luck.

 

Roger Bissell

Bye-bye.

 

Walter Block

Thank you.

 

Vinay Kolhatkar

Stay safe.