Self-ownership, abortion and a Brave New World

October 22, 2009

"The idea of ownership," said W. P. Carey Economics Professor William Boyes, "is that we can do anything we want with what we own as long as it does not harm anyone else or violate anyone else's property rights."

Yet by that definition, our common concept of ownership might often be called into question. When we go to the pet store and buy a dog or a cat, for example, we think of ourselves as pet owners. But the law regulates how we can treat our pets. That, Boyes said, means either we don’t own them or that they have private property rights as well.

The law regulates how we treat ourselves, too. "Suicide, drug use, and prostitution are all illegal," Boyes said. So if we can't do anything we want with our own bodies -- even if our actions don't harm others, does that mean we don't really own ourselves?

That question, Boyes said, has far-reaching implications. The rationale for abortion rights, for example, is based largely on the idea that a woman "owns" her own body and has the right to decide for herself if she will abort a fetus growing inside that body or not. But if women don't really own their own bodies, how does that change the abortion debate?

Do we own our own bodies?

There is a long history of debate over the question of self-ownership. On one hand, many religious traditions suggest human beings as the "property" of God; on the other hand, many Enlightenment-era thinkers suggested that we are "property" only of ourselves.

In the Second Treatise on Civil Government, John Locke attempted to balance the idea of divine ownership with the idea of self ownership. In the end, writes Pepperdine University Political Science Professor Stephen Seagrave, Locke showed how "the notion of self-ownership need not imply a rejection of the natural law and God's ownership of His creatures."

Locke's ideas -- and the notion of a "right" of self-ownership -- are well represented in American capitalism and democracy, if not explicitly guaranteed by the Constitution.

Founding Father James Madison wrote that a person "has a property very dear to him in the safety and liberty of his person. . . Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions. Where there is an excess of liberty, the effect is the same, tho' from an opposite cause."

Yet even in the United States there is a checkered history of reverence to the notion of self-ownership. It wasn't until 1865, after all, that slavery was prohibited and the notion of Blacks as a slaveholder's property (rather than their own) was dispelled.

Abortion as an issue of ownership

The evolution of our concept of self-ownership is an important underpinning of American capitalism but it's reflected in social concerns, as well. "The abortion issue, for example, is an issue of ownership," Boyes said. "Very few people think of it that way, but we should look at that emotional social issue using the fundamental economic concepts of private property rights."

In Roe v. Wade, the 1973 Supreme Court case that set the precedent for states' non-interference in women's abortion decisions, it was assumed that a woman has the right to decide what to do with her own body (provided that no other persons might be harmed by her decision). The question of the case became: is the fetus also a person with self-ownership rights, a person who is harmed by the woman's decision to have an abortion?

Tackling the abortion debate as a matter of property rights is crucial, Boyes said. Do we own our own bodies? And if we do, is a fetus also a person with self-ownership rights? These are answerable questions, Boyes said, and "answering [them] is the most important thing in this debate."

Nancy Roberts, senior economics lecturer at the W. P. Carey School, does not think that abortion "fits neatly" as a property rights issue. "It doesn't work perfectly to say that a woman's right of self-ownership allows her to decide whether or not to have an abortion, because there's this externality -- this fetus," Roberts said. "Is the fetus property? Or is the fetus a person entitled to his own rights? Doesn't the father have certain property rights over the fetus too? It's simply not satisfying to say that this is exclusively a mother's property rights issue."

The question of whether the fetus is a person with his own property rights is at the heart of nearly every abortion debate. Roe v. Wade was largely decided on the basis of the idea that -- at least until the point of "viability" -- the fetus is not a person and is therefore not entitled to any self-ownership rights.

During oral arguments in the case, Justice Potter Stewart asked Roe's attorney, Sarah Weddington, "If it were established that an unborn fetus is a person, with the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?"

Weddington replied, "I would have a very difficult case."

"True, if it is denied that a fetus is fully human or a person, then the state would seem to have no grounds for interfering with the decision to abort," writes Loyola Marymount University Philosophy Professor Edward Feser. "However, if a fetus is a human being or a person, then it is plausible to regard it also as a self-owner, in which case there may arguably be at least some instances in which the state is required to stop an abortion (since an abortion would, on this view, be a violation of the self-owning fetus's right to life)."

What if fetuses have self-ownership rights?

Not everyone involved in the debate agrees that abortion violates private property rights, even if a fetus is deemed a self-owning person. Loyola University Economics Professor Walter Block and University of Central Arkansas Business Law Professor Roy Whitehead write that "Abortion is not, in and of itself, an act invasive of other people or their property rights, even when fetuses are considered persons."

They go on to say, "[The pregnant woman] owns her own body, and the unwanted fetus growing within it is in effect a trespasser or parasite. This may sound harsh, but when the property rights in question are thoroughly analyzed, it is the only possible conclusion that may be reached."

Block and Whitehead reach the same conclusion that former MIT Philosophy Professor Judith Jarvis Thomson did when she argued that the fetus's status as a person with rights should not preclude a woman's right to an abortion. Like Block and Whitehead, Thomson defends abortions that do not directly kill the fetus, even if the abortion results in the fetus's death (because it is not viable outside the womb).

Thomson compared a pregnant woman to a person who had, without her knowledge, been hooked up to a famous violinist with a rare kidney disease. The person who's been hooked up to the violinist, it turns out, is the only person in the world who can save the famous musician, but only by lying back-to-back with him, letting her kidneys filter his diseased blood as well as her own.

The person who's been unwittingly connected to the famous violinist has every right to unhook herself from him, even if doing so would surely result in his death, Thomson said. By unhooking herself -- which she is entitled to do as a self-owner -- she is not violating the violinist's self-ownership rights as long as she doesn't directly kill him.

Others reject Thomson's comparison and instead compare the mother's and fetus's situation to that of a person who has invited a guest onto his airplane for a ride but then, at 20,000 feet, decides that the guest should leave his private plane -- immediately. To make such a demand, Block and Whitehead suggest, would be to violate an implicit contract agreed upon before the flight -- that the guest would be allowed to remain on the plane until he could safely disembark.

Yet Block and Whitehead do not extend that rationale to an implicit contract between the pregnant woman and the fetus, which allows the fetus to remain in the woman's womb until the time when it can safely leave it (at birth). Instead, they say that while the airplane owner and guest do enter into an implicit pre-flight contract, "it is impossible to have a contract (implicit or otherwise) with a one-week old baby."

A brave new world

The issue of self-ownership -- whether in the context of abortion, the right of a terminally ill patient to euthanasia, or some other debate -- will likely remain an important one. And it will continue to arise in new areas, the center point of new social questions.

That's what happened earlier this year when Genae Girard, backed by the American Civil Liberties Union, sued Myriad Genetics and the U.S. Patent Office, challenging the decision to grant Myriad (and companies like it) patents on human genes.

 In 2006, Girard, who had been diagnosed with breast cancer, took a genetic test to see if she had an elevated risk for ovarian cancer as well. The test, by Myriad Genetics, showed that she did have a higher risk.

Before having her ovaries removed, though, Girard wanted a second test, but there was none. Myriad Genetics owns the patent on the gene that is associated with an increased risk for ovarian cancer (they also own the patent on the test to look for that gene).

Speaking on NBC's "Today" show, Dr. Nancy Snyderman noted that private companies hold patents on nearly 20 percent of the human genome. "I am going to predict that this is on its way to the Supreme Court," Snyderman told the show's host Matt Lauer. "Can you own someone's genes?"

That's not a question one can imagine John Locke or the Founding Fathers asking. Yet it is fundamentally the same as the question they debated: "Do we own ourselves?" It's an issue that has been at the heart of American discourse since John Hancock and fifty-five others put pen to paper on July 4, 1776 -- and one that will undoubtedly continue to shape the way we think about ourselves, our behavior, and our relationships to others.

Bottom Line:

  • "The idea of ownership is that we can do anything we want with what we own as long as it does not harm anyone else or violate anyone else's property rights."
  • "If we can't do anything we want with our own bodies -- even if our actions don't harm others, does that mean we don't really own ourselves?" That question has far-reaching implications: if women don't really own their own bodies, how does that change the abortion debate?
  • In Roe v. Wade, it was assumed that a woman has the right to decide what to do with her own body (provided that no other persons might be harmed by her decision). The question of the case became: is the fetus also a person with self-ownership rights, a person who is harmed by the woman's decision to have an abortion?
  • The conclusion in Roe v. Wade was that -- at least until the point of "viability" -- the fetus is not a person and is therefore not entitled to any self-ownership rights.
  • Not everyone involved in the debate agrees that abortion violates private property rights even if a fetus is deemed a self-owning person.
  • Some scholars defend abortions that do not directly kill the fetus, even if the abortion results in the fetus's death. Others argue that abortions are "unjust" because the mother has an implicit contract with the fetus to allow it to grow in her womb until it is born.
  • The issue of self-ownership -- whether in the context of abortion, the right of a terminally ill patient to euthanasia, the patenting of genes, or some other debate -- will likely remain an important one. And it will continue to arise in new areas, the center point of new social questions.