Voluntary Assumption of Risk and Rights Negation: Toward a New Libertarian Theory of Abortion.

Libertarian debates on abortion have not advanced beyond the seminal theory of evictionism developed by Walter Block. Indeed, despite being subject to waves of intralibertarian critique, evictionism has managed to remain the leading libertarian theory of abortion. Part of the reason for this lies in the unsatisfactoriness of alternative libertarian accounts of abortion such as the implicit contract framework. This paper moves the libertarian debate on abortion beyond evictionism by proposing a novel assumption-of-risk model which holds that, by engaging in consensual intercourse, a woman voluntarily assumes the foreseeable risk of generating a dependent self-owner. This assumption of risk transforms a mother's juridical position such that her antecedent moral power to enforce her secondary remedial claim-right to terminate bodily interference is disabled. The Hohfeldian disabilities generated on the part of the mother correlate with immunities, on the part of the fetus, from being liable to the enforcement of its mother's moral power to enforce her secondary remedial claim-right to remove it.