Departurism[1][2][3] is an anti-abortion libertarian approach to the reproductive rights controversy developed by American philosopher Sean Parr which argues, contrary to evictionism,[4] that the lethal removal of an unwanted fetus ought to be legally impermissible (except in cases where the pregnancy jeopardizes the life of the mother).[5]

Commonalities with evictionism

Both departurism and evictionism acknowledge that a fetus is a distinct, living human being and, further, admit their personhood.[6]

What makes these theories uniquely libertarian is twofold:

  1. They view the abortion issue through the lens of property rights,[7] allowing that an unwanted fetus is to a mother what a trespasser is to the owner of the property in question.
  2. They conceptually separate abortion into (a) the removal of the child from the womb and (b) the resultant death of the child. Abortion, thus, is understood as lethal eviction.[8] Both theories view the act of eviction, in isolation, as more or less broadly justifiable[9] while justification for the full act of abortion is (for differing reasons and to varying degrees) more narrowly conceived.

Moreover, each of these approaches argue that the fetus is without mens rea in his occupation of the mother's premises (her womb), and so his treatment at the hands of the mother must be in accord with gentleness.[10][11]

Gentleness

Gentleness is an ex ante element of law—akin to the ex post element, proportionality—which states that the victim of such an invasion, if he means to halt it while it is occurring, must use only the least severe measures necessary in order to do so. Failure to bring the non-criminal aggression to an end via the gentlest means possible places the victim "at risk of falling on the wrong side of the non-aggression principle (NAP),"[12] violating it "to a far greater extent than is the trespasser."[13] Because all fetuses "are equally innocent,"[14] this attempt to curtail property owners from dealing with such trespassers "more severely than libertarian punishment theory allows"[15] is applicable to unwanted fetuses who are the result of rape no less than those whom are consensually conceived.[16]

Conflict with evictionism

Where departurism and evictionism differ is in their understanding of what gentleness ought to look like when it is properly applied to situations of trespass within the womb.

The evictionist view is that the mother may not directly kill the unwanted child (e.g., initiate a medical abortion,[17] non-lethally evict the child and then kill him,[18] etc.), but she may indirectly do so by evicting him from her premises during a time in which he is non-viable outside the womb. This lethal eviction however, if it's to be in accord with gentleness, must proceed only after the relevant authorities[19] have been notified to see if they are able and willing to prevent this removal from becoming fatal.[20]

Departurism, likewise, holds that the mother may evict[21] but not directly kill the trespassing fetus, but, contrary to evictionism, neither may she kill him by eviction. The mother, if her actions are to conform to gentleness, must allow for the continued departure of the trespasser until such time that eviction no longer entails his death. That is, "it is only the lethal (or otherwise debilitating) eviction of a fetus during a normal pregnancy that departurism views as discordant with gentleness and, thus, a violation of the NAP."[22]

Because the requirements of both views (evictionism’s notification and departurism’s continued departure) are said to find their justification in gentleness, it is the view whose requirement best conforms to this principle that should be preferable on libertarian grounds.

The departurist argument

The departurist argument is an attempt to

First, the departurist argument compares two situations, S1 and S2.

S1 represents the situation of a trespasser who is (a) unable to engage in human action and (b) leaving the premises of the property owner, while (c) not endangering the life of the same, and where (d) the eviction of this trespasser will result in his death. S2 represents the situation of an unwanted fetus in the uterus of his mother.

Departurism claims that these situations are relevantly similar to each other and therefore cannot be treated differently. That is, the requirement of practical consistency dictates that the same course of action is appropriate in both situations.[24]

Second, the departurist argument describes a course of action, A.

A represents the course of action in which the property owner allows for the trespasser to continue his departure until such time that eviction will not necessitate his death.

Departurism claims that this course of action stops the trespass in a comparatively less harmful manner than does the course of action advanced by evictionism (e.g., it doesn’t entail that the inadvertent aggressor be subjected to unjustifiable life-taking or NAP-violating violence).[25] That is, the principle of gentleness dictates that this course of action is the correct, libertarian one in either case.

  1. The course of action that libertarian legal theory ought to endorse in S1 is A.
  2. S2 is relevantly similar to S1.
  3. Therefore, the course of action that libertarian legal theory ought to endorse in S2 is A.[26]

Premise one

Departurism illustrates a potential expression of S1 which includes all of its relevant conditions (a-d). This illustration posits a property, owned by M and on which F is trespassing, which abuts a cliff on its southern border. F, whose mental state or capacity is such that he is incapable of knowing that he is trespassing,[27] is travelling along this cliffside from west to east and off of M’s property (that is, unwitting F happens to be vacating the premises). Importantly, there is nothing about F's trespass which is seriously endangering M's life.[28] M knows that should F be pushed off the cliff while on the western end of the premises (the black area), F will certainly die due to the severe height of the fall. Further, M is aware that a fall from the eastern end of the premises (the white area) will not prove fatal for F due to the negligible distance from the cliffside to ground below. A fall from in between these ends (the gray area) may or may not be deadly. According to departurism,

whether or not a fall from the gray area is fatal depends on the technology available at the time to prevent it from becoming so. To wit, 1000 years ago the gray area would have been all black; 1000 years from now, with technological advances, the gray area will be all white. Currently, falls from the gray area are more likely to result in death and serious injury the closer they are to the black area, and less likely to result in the same the closer they are to the white area.[29]

Departurism makes the case that the evictionist-proposed course of action (that M may legally shove F headlong off the cliff and unto the black or western gray areas) is not transformed into a less harsh means of ending the trespass simply because the evictionist notification requirement has first been satisfied (e.g., someone was told about this fatal cliff-tossing beforehand). The departurist indictment goes on to state that this evictionist position represents “nothing if not a textbook example of the very response on the part of the victim that gentleness was placed into libertarian law so as to preclude.”[30] Moreover, the supposed gentleness of evictionism falls short when compared to the departurist-proposed course of action (that M be prohibited from evicting F unto the black or western gray areas when so doing constitutes a degree of severity inappropriate for bringing an end to this particular trespass).

Premise two

Evictionism concedes that the following conditions of S1 are present in S2:

(a) The trespasser is incapable of purposeful behavior.[31]

(b) The trespasser is in the process of departing the property owner’s premises.[32]

Although the evictionist has made no quarrel with either of these points, departurism has elucidated how the latter condition relates to S2 in the following way:

It can be assumed that every pregnancy begins at the western end of M’s premises. From fertilization to parturition, the process of gestation takes the fetus from the western to the eastern end (and off) of M’s premises. The fetus, as a matter of fact, is departing the premises of the property owner and he is so doing from the moment that he first arrives there—regardless of the point at which he is deemed a trespasser.[33]

Furthermore, evictionism does not dispute the presence in S2 of the remaining conditions of S1—as these conditions represent, respectively, the most prevalent and the most relevant instances of uterine trespass:

(c) The trespasser is not jeopardizing the proprietor’s life via aggression against property rights in the person.

(d) The trespasser's eviction from said premises would necessitate his death.

Premise three

Practical consistency prohibits the trespasser in S2 from being treated differently from the trespasser in S1 because all of the relevant conditions of the latter situation are found also in the former. It is for this reason that departurism holds that

just as it ought to be illicit for M to send F fatally off into the wild blue yonder, it ought also to be illicit for a mother to kill, or otherwise unjustifiably maim, the unwanted fetus in her womb by eviction.[34]

Criticism of evictionism

From gentleness

Departurism charges evictionism with radically conceiving of the gentleness principle not as the least harmful manner possible consistent with stopping the aggression, but as the most expedient manner possible consistent with stopping the aggressor. The departurist claim is that this comprehension destroys the spirit or intended purpose of the gentleness principle by twisting it in order to permit victims of non-criminal aggression to engage in severe reactions and over-responses—the very things which are the principle’s purpose to prohibit.[35]

From positive obligation

Both evictionism and departurism contain requirements that the mother withhold the eviction of the unwanted child for some amount of time. For the former, that amount of time is the duration required for the mother's notification of the authorities; for the latter, it is the duration required for the child's continued departure to reach the point at which his eviction no longer necessitates a NAP-violation. The departurist claim is that the evictionist notification requirement constitutes a positive obligation, and so is anathema to libertarianism. Evictionism's requirement, unlike departurism's, is a positive one because it neither derives from nor constitutes the gentlest manner possible of bringing the fetal trespass to an end.[36]

From duration

It is the departurist view that evictionism transforms libertarianism into an ideology of squatters by means of its positive obligation that the mother notify the authorities prior to her lethal eviction of the fetus. The departurist claim is that this permits the fetus to occupy the mother's premises, without her permission, for the duration of that notification.

Departurism further holds that evictionism transforms libertarianism into an ideology of corpses. The evictionist view is that because the trespasser in this case cannot engage in purposeful behavior, the phenomenon of implicit contracts is impotent to prevent his lethal eviction from the mother’s uterus (even if the duration of his trespass is not onerous). But womb-aged children are not the only category of persons to whom it can be argued that implicit contracts are not applicable. The departurist claim is that, under evictionism, any guest who is mentally or developmentally incapable of entering into a contract may have his invitation rescinded by his host at any time, and this newly-designated "trespasser" can then be lethally and lawfully removed from the premises.[37] The evictionist has not balked at this characterization of his view, stating that the departurist makes a "not totally unreasonable point."[38] The evictionist has even gone on to concede that this "of course sounds horrible,"[39] before attempting to justify it on consequentialist grounds.

Detractors

Walter Block has made counter-arguments to departurism.[40][41]

See also

Notes

  1. ^ Parr 2011.
  2. ^ Parr 2013.
  3. ^ Parr 2020.
  4. ^ Cesario 2019.
  5. ^ See Parr 2020, 67:"The degree of severity necessary in the treatment of a fetus (wanted or unwanted) whose occupation of the womb seriously endangers the life of the mother would be more than is appropriate, nay, more than is compatible with libertarianism, in dealing with a fetus whose occupation represents a mere trespass."
  6. ^ Block & Whitehead 2005, 17: "The fetus is an alive human being from day one onward, with all the rights pertaining to any other member of the species."
  7. ^ Block & Whitehead 2005, 1: "We advocate a liberty and private property rights approach to the issue of abortion."
  8. ^ Block 2010, 1-2.
  9. ^ Parr 2020, 65-66: "[Departurism] will permit the non-lethal eviction of a fetus for the purpose of the reasonable upholding of the mother's property rights."
  10. ^ Block, Kinsella & Whitehead 2006, 945: "The woman who no longer wishes to 'house' the fetus within her body is under no obligation to do so. She may evict this interloper from her 'premises.' She must do so in the gentlest manner possible, for the trespasser in this case is certainly not guilty of mens rea."
  11. ^ Block 2010, 3: [Gentleness is] "a basic axiom of libertarianism."
  12. ^ Parr 2020, 60-61.
  13. ^ Block 2011A, 3.
  14. ^ Block 2011A, 8.
  15. ^ Block 2013, 132.
  16. ^ See Parr 2020, 67: "There seems to be no warrant for the proposition that, depending on how they come to find themselves in situations of aggression, only particular non-criminals should be subject to gentleness while others should not."
  17. ^ Block & Whitehead 2005, 25: "RU 486… which kills and then flushes out the fetus, [should not] be legal."
  18. ^ Block & Whitehead 2005, 27: “The pregnant mother... may evict, but not evict and then murder.”
  19. ^ Block 2011A, 2: “E.g, the hospital, the church or synagogue, the orphanage.”
  20. ^ Block 2011A, 2: "The 'gentlest manner possible' in this case requires that the mother notify the authorities to see if they will take over responsibilities for keeping alive this very young human being. However, if the 'gentlest manner possible' implies the death of this very young human being, then so be it: the mother still has that right."
  21. ^ Parr 2011, 14: “The notion of eviction as the gentlest means possible is not, per se, incongruous with libertarianism.”
  22. ^ Parr 2020, 65.
  23. ^ Block 2011B, 5: "From whence, then, does [gentleness] spring? I contend that it stems from the [NAP]."
  24. ^ See Walton 2008, 306.
  25. ^ See Parr 2020, 73-74.
  26. ^ See Parr 2020, 68.
  27. ^ Parr 2020, 68: “We can add, also, that [M] knows (or... can be reasonably expected to know) that [F] is incapable of purposeful behavior.”
  28. ^ Parr 2020, 72: “We might... posit that F is further aggressing against M’s property by instinctively eating some of the garden vegetables as he proceeds eastward. An aggravating aggression.... [b]ut, like his current trespass, an inadvertent, property-directed one that is in the process of ending and is not justly ended sooner by the quashing of F’s innocent life.“
  29. ^ Parr 2020, 70.
  30. ^ Parr 2020, 74.
  31. ^ Block 2013, 127: "Of course, this baby human being lacks mens rea, and thus cannot be considered a criminal…. It cannot be denied that the fetus is totally devoid of any intention to trespass…. The same can be said for the unconscious adult."
  32. ^ Block 2013, 131: "I agree… that ‘gestation constitutes a process that works to affect the cessation of property-directed aggression.’"
  33. ^ Parr 2020, 95.
  34. ^ Parr 2020, 100.
  35. ^ Parr 2011, 6-7.
  36. ^ Parr 2020, 77-89.
  37. ^ Parr 2020, 89-94.
  38. ^ Block 2013, 134.
  39. ^ Block 2013, 134.
  40. ^ Block 2011B.
  41. ^ Block 2013.

References