Counterpoints to Kerry Baldwin’s Fetal Rights Framework

Although I am late to this debate, below I will offer some commentary regarding Kerry Baldwins views on abortion and fetal rights but from the vantage point of Blocks Eviction Theory as well as my own. Although I disagree with both Block and Baldwin I consider their contributions to be both positive and informative (The bulk of my criticism will come from the material Baldwin shared on the Bob Murphy Show as well as the Block-Baldwin debate).

Response To Fetus Trespass Theory:

Baldwins first premise is that, by definition, the fetus cannot be labeled as a trespasser since the fetus itself originated from the location in question. This would be true from either the vantage point of both tort or criminal law.

In tort law for example, trespass requires intent to enter or remain on another’s property—even if the trespasser is unaware of ownership. Origination alone does not confer indefinite immunity from such claims.https://www.law.cornell.edu/wex/trespass 

 Although I think that Baldwin is right to point out this definitional complication it is at best a short lived victory. It merely confirms that the fetus cannot incipiently be labeled as a trespasser i.e. at conception. This does not mean the fetus cannot become a trespasser. Origination may grant the fetus temporary reprieve from trespass but it does not provide indefinite immunity. I believe Baldwin anticipates this as well which is why she moves from fetus rights via legal definition into rights via homesteading before we turn to this argument I want to make a slightly cheeky counterpoint regarding her origination argument. It could be argued that at least half of the genetic makeup of the fetus originated outside the womb, specifically the 23 chromosomes contributed by the fetus biological father. Thus while admittedly tongue-in-cheek, one could argue the the pregnant mother may concede Baldwins point while still claiming that they are merely asking the non native genetic half of the fetus to leave.

     Using a Rothbardian/negative rights frame, Baldwin argues that the fetus should be granted all the homestead rights of personhood since the fetus has demonstrated the ability to control/modify its surroundings independently. Baldwin points to the maternal zygotic transition stage wherein the end result is a zygote that is autonomous, self-organizing which has the capacity to direct its development. The foremost problem I have with this line of argument is that I fail to see how it couldn't be applied to any cluster of cells. For example, dormant oncogene cancer cells originate within the body at birth (meaning they fall within Baldwins origination framework). Like the fetus they transition from passive to active states. Once activated they begin manipulating their environment; they remodel tissue, alter blood supply and override cellular governance.

Thus, I fail to see how absent of a special pleading fallacy how said oncogene cancer cells wouldn't qualify as both native and homesteaders under Baldwins arguments. Basing bodily autonomy on such loose epistemology is, at best, uncritical.

Invoking the case of special pleading.

As stated above, I believe the only way around this rebuttal is to invoke some case of special pleading for the fetus (for example, claiming the fetus has potential personhood which makes it different). Regardless, even if you were to find some non fallacious attribute or reason that applies only to the fetus such to grant the fetus ad hoc negative rights you still have the problem of dual-wills. Two wills cannot both claim ownership to the same article/location at the same point in time i.e. ownership presupposes both spatial and temporal deixis. Each party may make claim to said ownership, in this case the mother and the fetus, and thus each would take on the burden of proof for their claim. In Baldwins case we must presuppose there is a ownership dispute by presupposing the fetus is making a Lockean/Rothbardian homestead argument via interpretation of the zygotic transition stage. Under what possible legal interpretation would a court not side with original homesteader?

Fetus Force Argument

Another claim made during the Bob Murphy interview is that "you cannot say a woman is forced to carry a baby because the baby is in no position to force anything". This line of reasoning risks conflating agency with enforcement. The force compelling pregnancy is not fetal, but legal. I don't know of anyone who is claiming that the force involved in carrying a pregnancy to term is perpetuated by the fetus. The force is carried out by the arm of the state. It's like saying that someone cannot claim to be forced to pay taxes because TurboTax is in no position to force you to do anything. I hope that there is misunderstanding on my part regarding the above line of reasoning, otherwise this argument is traveling along a highway of irrelevancy.

Consequences Argument

Additionally in the interview Baldwin makes a few throw away statements that are worth a few sentences. One claim in regards to pregnancy as the potential costs/consequences of sexual activity was that "woman should not be free from the consequences of their actions". I completely understand how all encompassing statements (universal statements) can creep into conversations, this particular rhetorical device is misleading. No one is claiming that women should be free from the consequences of having sex. There is a subtle but crucial distinction here: pregnancy may be a consequence of sex, but its duration is a legal imposition

The claim is that pregnancy is the consequence the woman cannot be free from, not the term of pregnancy. There is a sleight of hand being made here by Baldwin. Potential pregnancy is the risk/cost of engaging in sexual activity but pregnancy is separate from the duration of pregnancy. The later is an imposed consequence and Baldwin has not justified this imposition.