A Libertarian Perspective on Abortion Policy with Jeffrey Miron

In 1973, the Supreme Court ruled in Roe v. Wade that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a right to privacy that protects a pregnant woman's right to choose whether to have an abortion. In 1992, the Court ruled in Planned Parenthood v. Casey that states could not impose an “undue burden” on women seeking abortions for a nonviable fetus; viability outside the womb begins around 24 weeks into gestation. However, a Supreme Court draft opinion leaked on May 2, 2022, suggests that the Court may soon overturn Roe and Casey. This would mean abortion would no longer be a federally protected right, leaving its regulation up to the states. Jeffrey Miron, a libertarian economist, argues that this is the least bad approach because it will likely reduce polarization in the country while preserving access to abortion services for most women.

Jeffrey Miron is vice president for research at the Cato Institute and director of graduate and undergraduate studies in the Department of Economics at Harvard University. He served as the chairman of the Department of Economics at Boston University from 1992 to 1998. His area of expertise is the economics of libertarianism, with emphasis on the economics of illegal drugs. He has advocated for many libertarian policies, including legalizing all drugs and allowing failing banks to go bankrupt. He has written three books, including Drug War Crimes: The Consequences of Prohibition and Libertarianism, from A to Z. He received a BA in economics from Swarthmore College in 1979 and a PhD in economics from MIT in 1984.

The interview below was conducted by Jacob Winter on May 24, 2022, and has been edited for brevity and clarity.

Harvard Undergraduate Law Review: I’d like to start by clearly defining libertarianism. When someone thinks of libertarianism in the United States, many different combinations of policy positions and moral beliefs may come to mind. You have distinguished between rights-based and consequential libertarianism. How do you define these two types, and which do you embrace?

Jeffrey Miron: Rights-based libertarianism can be summarized by the following ideas: rights-based libertarians think that individuals have basic rights, freedoms, [and] liberties often referred to as natural rights. They think that government policy should never infringe on any of these individual rights. They also think that most government policies do infringe on at least some people's individual rights, and that's why they conclude that almost all government interventions are undesirable. 

Consequential libertarianism, instead, takes the perspective that markets may be imperfect [and] other private arrangements may be imperfect. There's no reason to think that in the absence of government, everything will be perfect. But consequential libertarians note that government attempts to fix markets and other private arrangements have their own negatives. The assessment of consequentialists is that in a strong majority of cases — more than a majority — of the huge fraction of cases, the negatives from government attempts to fix problems are worse than the problems the government was trying to fix. So, we'd still be better off without government, or at least with substantially less government, over a very broad range of possible policies. 

I'm a consequentialist. A different way of describing consequentialism is it's a broad version of cost-benefit analysis, just taking an economic perspective, and looking at all the pros and cons and thinking about which set of circumstances one prefers. I should add that rights-based libertarianism and consequential libertarianism come to pretty much the same conclusions across a broad range of issues. Indeed, it's hard to think of examples where they would disagree. So, that means at some level they must be the same, and I think the reason they end up being the same is that the rights-based approach is a useful shorthand for knowing that government is going to have a lot of unintended and undesirable consequences, and so you get pretty much the same answers in either of the two approaches.

HULR: Turning to abortion policy in particular, do rights-based and consequential libertarianism lead to the same answer on what is the appropriate abortion policy? And is there any consensus at all among libertarians on the appropriate abortion policy?

JM: Let me start with your last question. I don't think there's a consensus amongst libertarians about abortion policy. You will find very strong pro-choice libertarians — Ayn Rand is a famous example — and you will find some very strong pro-life libertarians, so there is not just one libertarian position.

In terms of thinking about it from a rights or a consequentialist perspective, I think the rights-based approach does not yield an easy answer, because on the one hand, pro-life libertarians say the fetus is a person, or at least about to become a person, and it has individual rights to not be terminated, to not be killed, and abortion does that. So, some rights-based libertarians say that abortion should be outlawed, or at least heavily restricted. On the other hand, a rights-based libertarian could say that the mother has rights to not be interfered with — the language of the Supreme Court to privacy or just the right to live her life as she wishes, without any interference — so long as we're talking about, at a minimum, things happening within her own body. And then the rights-based approach ends up being pro-choice, rather than pro-life. So, without there being one absolutely correct or obvious view from a rights perspective about whether the fetus is a person, or when it becomes a person, or any of those issues, I don't think the rights-based approach gives you a clear answer. 

The consequentialist approach, of course, has lots of uncertainties as well. But it doesn't take as given that simply because an incipient life is terminated by abortion that that is the end of the story. There are many other things one might want to consider in analyzing the consequences of a ban on abortion. Those consequences include that many women will still have abortions in various ways, but they may put themselves more at risk in having those abortions by getting them from underground providers, by having to travel to a different state or a different country, by using medications like RU-486 and things like that. That by driving the abortion market partially into a gray or underground market, we are, in effect, rewarding those people — rewarding is not the right word — we're, in effect, letting those people who are willing to break the law still benefit from being able to access abortion, but people who decide they should obey the law are harmed if you impose prohibition.

Another consequence of prohibition is that there may be trafficking in things like RU-486. There may be all sorts of other unintended consequences, just as all sorts of prohibitions breed these unintended consequences. So, a consequentialist could look at the issue and say, “Yes, there is in most people's mind a negative that happens when a fetus is terminated, but it's not the only effect.” And taking account of all the effects, the right thing to do is to allow women to have the choice of whether to have an abortion. 

Perhaps most importantly amongst consequences, for consequential libertarians, is that it's very natural to want to say an individual's ability to be not interfered with by the government begins at their skin, at their body. And then, if you set the precedent saying government can interfere with what goes on inside someone's body, a woman's body, then you've opened the door for a huge range of other interventions that libertarians find unappealing on either rights-based or consequentialist-based perspectives, and so that argues in favor of legal abortion, taking into account all of these other issues as well.

HULR: This leads into my next question, and you did answer most of this, but I just want to be clear. What is your personal view on abortion? And if states are once again empowered to craft abortion policy, what policy do you believe states should adopt?

JM: My personal position is that abortion should be legal. Indeed, I'm comfortable with abortion being legal throughout pregnancy, that is, for nine months or until the time that the baby was otherwise being delivered. And I come to that view because I think — for the moment talking about the state level — that the unintended consequences of an abortion ban are worse than the consequences of allowing abortions. I completely understand why people are uncomfortable with the idea of abortion, why many people are uncomfortable. Indeed, many strong pro-choice advocates are not entirely comfortable with the idea of abortion, and certainly not with late-term abortions.

My view is that attempting to avoid those negatives by banning abortion is much worse because it sets the precedent that government can tell people what to do inside their own bodies, and that should be unappealing to any libertarian. At a minimum, the government's rights end where my skin begins.

HULR: In 1973, the Supreme Court ruled in Roe v. Wade that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a right to privacy that protects a pregnant woman's right to choose whether to have an abortion. In 1992, the Court ruled in Planned Parenthood v. Casey that states could not impose an “undue burden” on women seeking abortions for a nonviable fetus, and viability outside the womb is considered to begin around 24 weeks into gestation. Aside from your personal view on abortion, do you believe these were sound legal decisions?

JM: I don't take a stand on Roe or Casey or the constitutional issue of abortion more generally. Partially, I'm not a lawyer; it's not my area of expertise; it's not something I've studied in great detail. But from what I've read from both sides, and my own partially informed reading of the Constitution, it feels to me as though people can make reasoned arguments in either direction by looking at the Constitution. 

I can imagine that the Framers, even though they didn't use the word privacy, probably did have some respect for a right to privacy. They included explicitly the Ninth Amendment to the Constitution [which says the enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people].

On the other hand, the Constitution certainly does not use the word abortion, it does not use the word privacy. So, it doesn't feel to me as though there's a compelling case in either direction; I simply leave that to the lawyers and focus on what I think are the consequential implications of banning versus not banning abortion.

HULR: Aside from your personal view on abortion, again, what do you believe is the appropriate abortion policy on the federal level and why?

JM: My hunch — and I'm happy to say that it's a hunch, it's not an adamant conclusion, not nearly as strong a conclusion as I might have on some other things — but my hunch is that we'd be best off if the policy were that the federal government took no stand on abortion and left the legality of abortion up to each individual state, which was the policy in the U.S. until the Roe decision in 1973. And so, under that approach, the federal government would not outlaw abortion, it would not dictate that states had to offer legal abortion; [there] would simply be no federal policy or no Supreme Court decision that applies. Each state would make a decision on its own.

My guess is that under that approach, we would have 20 to 25 states, at least, that would have abortion, more or less as accessible as it is now in those states. We'd have a few or maybe a number of other states that would have some degree of restrictions on access to abortion, but not outright bans. And we would indeed have a number of states that had outright bans on abortion. 

For women living in the legalized states, access would probably not be much different. For many women living near the legalized states, access would be more difficult, but not dramatically different. I believe that in the non-legalizing states, the states that outlawed abortion, many women would access RU-486, the abortion pill, and obtain abortions that way, or they would travel farther distances to legalized states, or possibly to other countries. There, of course, might be a black market in surgical abortions as well, and of course a black market in RU-486. 

So, under the approach that I’m suggesting — my hunch is it’s the best policy, the least bad policy — many women, maybe a strong majority of women, would not suffer significant decreases in their access to abortion. But indeed, some would, especially women of lower income and lesser socio-economic circumstances, because they would not easily have the money or the time to be able to pursue these other avenues for a legal abortion.

HULR: What legal justifications, including constitutional justifications and/or precedent, can be used to support the view that abortion policy should be left at the states?

JM: Well, the first fact is that it was left in the states for a long time, for close to the first 200 years of the existence of the Republic. And that is grounded in the common law that the U.S. inherited from England in which courts had ruled that abortion was indeed a crime, but a crime that was not enforced essentially through the first trimester, to the point of quickening, which is when the mother can first feel the baby moving around, and typically happens around three to three and a half months. So, there was a long precedent, there was a long history of abortion being left in the states.

Secondly, the Tenth Amendment to the Constitution says that all powers not allocated to the federal government or the states — excuse me, that all powers not allocated to the federal government — are left to the states. And the states always had the power to regulate what constitutes a homicide. They mainly regulated it, defined it, enforced it in very, very similar ways, but there were some differences, in particular with respect to abortion. And I think that says that this regulation of the murder laws is a state issue — most laws in the U.S. are still state issues, not federal laws — and so that also is consistent with saying the Constitution is comfortable with it being left to the states, or implicitly was saying that states have the right to regulate homicide and therefore abortion.

HULR: Given your view that states should permit abortion through nine months, some people may question how you can advocate for a policy that will likely lead to abortion prohibitions in some areas of the country. How do you reconcile this?

JM: I agree that my position, my personal position on abortion, and what I would like to be true in my state — and ideally I would hope to be true in every state — appears inconsistent with saying that we should nevertheless leave abortion policy to the states. My reason is the polarization that's generated by imposing one policy on the entire country. It's clear that there is a huge range of views and deeply held views, very emotionally charged views about abortion. Some of the people may have reasons for their views that I would not find especially sympathetic, but I think lots of people on both sides have concerns with which most people have some sympathy. And yet, if we impose one policy — if the federal government says every state has to be the same — you're going to force a lot of people, depending on which way it goes, to live under a policy that they find deeply problematic. 

My hope is that the balance would be better if this is left to the individual states. People who feel strongly can, over some horizon, move to states whose policies they prefer. There will be competitive pressures across states to adjust policies. The technology of smuggling RU-486 will provide access to a large fraction of women in outlawing states. I think that, over time, there will be less acrimony, there will be less bitterness, and a very large fraction of women who seek abortions will still have reasonable access even under the policy where we leave it to the states, and we won't have the political polarization that we have now.

HULR: A Supreme Court draft opinion leaked on May 2, 2022, suggests that the Court may soon overturn Roe and Casey. This would implement your favored approach — abortion would no longer be a federally protected right, leaving its regulation up to the states. If this happens, how does the fact that Roe was the law of the land for nearly 50 years impact how the new approach will be received by the public?

JM: I think that's a question we don't know the answer to at this point. On the one hand, you would say we should all go back to the way it was in 1972 before Roe, but sometimes political reactions are path dependent — they depend on the way in which we got to where we are. So, I think there will be a huge amount of debate and controversy in many states. Some states clearly initially fall in the pro-choice or the pro-life camp, but there will be states where it's much more contentious. There will be states that probably change their policies because states that are red and states that are blue is not fixed in stone, it changes from time to time, so abortion laws may change in some of those states in either direction. But it's hard to know what's going to happen until we see what happens.

HULR: You've mentioned this several times, but I want to put a finer point on it. Mifepristone, also known as RU-486, and misoprostol are collectively known as the “abortion pill.” They are medications used to induce an early-term abortion, usually within the first 9 weeks of gestation. How does this medication have the potential to change the nature of the abortion debate? And how does the Food and Drug Administration, an organization you are very critical of, play into the story of this medication in the United States?

JM: There are two main mechanisms by which RU-486, the abortion pill, will play a role. [The] first is that, under current FDA regulation, doctors can legally prescribe it via telemedicine. So that means that someone residing in a state that has outlawed abortion can seek a telemedicine appointment with a doctor in a state that has not outlawed abortion, get a prescription for RU-486, get it delivered from out of state, and be able to obtain what's known as a medical, as opposed to a surgical, abortion. I should note that's only relevant up through approximately the first three or so months of pregnancy. RU-486 is not meant to be used at any time through pregnancy, so it does not address the issue of legal access to abortion for all women, but it will certainly provide it for a large fraction of them. Many states may try to prevent this cross-border prescribing. Indeed, they may pass laws that say you've committed a crime if you travel to another state to get an abortion, or if you get a telemedicine appointment from another state for a medical abortion. They may try to get the FDA to change its policy on legally prescribing via telemedicine. That’s all, sort of, still to be seen. 

The second mechanism by which RU-486 plays a huge role is [that] there will almost certainly be a significant black market in RU-486. People who deal in marijuana, heroin, cocaine, methamphetamine, and so on are able to supply those drugs widely, more or less in every downtown, street corner, in inner cities, behind high schools, across the land. So, RU-486 is just a couple of little pills, there's no reason there won't be an underground market in that as well. Indeed, there have been underground markets in other countries, such as Ireland, that had had bans on abortion, and there was detection of a substantial amount of illegal importation [of abortion pills] by customs officials in that country. So undoubtedly, there will be some of that depending on exactly how easy it is for people to use telemedicine, the legal approach.

HULR: The abortion debate often centers on whether abortion should be banned. But some states have instead imposed less restrictive regulations, such as parental notification requirements, spousal consent requirements, waiting periods, licensed physician rules, and mandatory ultrasounds. What is your view on the merits of implementing regulations such as these?

JM: From a strictly consequential perspective — for the moment, setting aside the political economy of the situation — I think that those kinds of restrictions are, sort of, irrelevant. They're silly. They don't reduce very many abortions. They just make extra work, extra cost for the people involved. Most people have ways to get around them. For example, parental notification laws, states that have had those laws have also had a mechanism where a minor could go with an advocate, lawyer, and appeal to a judge and explain why it would have been an undue burden on a young person to have got parental consent, maybe it would have generated significant turmoil within the family, and the judge says, “Okay you don't have to get the parental consent.” So, at one level, I think that stuff is kind of irrelevant. It will be circumvented much of the time.

If you take a more political economy perspective, it may well be that it's a reasonable compromise to have modest regulation of that form. Similarly, to perhaps limit abortions to, say, the first two trimesters, because if you limit it in some way, if you have this veneer of regulation and of moderating the number of abortions via these regulations, then more people will accept having it be legal, and there will be a less acrimonious compromise between pro-choice and pro-life perspectives. So, if you were to tell me that my state would maintain legal abortion as long as we're willing to go along with the modest amount of regulation, that's probably a compromise that pro-choice people should accept, even if it's not their optimum.

There is no policy that is everybody's optimum in this area. Somebody's going to have to be at least somewhat unhappy, and maybe the ideal is that everybody's a little bit unhappy, but nobody is grotesquely unhappy.

HULR: Okay, thank you very much.

JM: Thank you. There was one other thing that we discussed that I would throw in if you're interested.

HULR: Yes, please.

JM: Various people have already started discussing whether the federal government should outlaw abortion in every state. And to me that would be a horrific, horrible policy, the worst possible policy. But I also think that would be unambiguously an unconstitutional policy because it would violate the Tenth Amendment, which says the powers not given to the federal government are reserved to the states. States have always had the power to define what constitutes a murder, and therefore they should retain that power and not have it circumvented by a federal law that says this particular kind of action is a murder. So, I would hope that the same Supreme Court justices who claim to be so faithful to the Constitution would have the same reaction if there were ever a federal law that tried to outlaw abortion federally. But we'll see if that ever comes up.

HULR: Okay, thank you!
JM: Thank you.