It’s hard to make nuanced arguments in the abortion debate because folks on both sides tend to see a debate primarily as a chance to prove their commitment to their cause to themselves and their friends. This is where you get the concept of symbolic beliefs, which are extreme beliefs people claim solely as a way of demonstrating their passion.
Secular Pro-Life does a very good job of raising the bar when it comes to the debate, and so I want to take a shot at making an argument about abortion and rape that hinges on the kind of fine distinction that wouldn’t survive most ordinary arguments.
The distinction I want to make is between active and passive abortion. The vast majority of abortions performed today are active. They use surgical instruments or drugs to actively and directly kill the developing human being. But at least one kind of theoretical abortion is passive. According to some pro-life arguments, the emergency contraceptive Plan B can act to block a fertilized egg from implanting into the uterus without doing it any direct harm. This is a passive abortion, and I called it “theoretical” because there’s not a lot of clear evidence that it actually works this way. For the purpose of my argument, however, what matters is that it could.
To see how this distinction matters in the case of rape–and why I support legal access to abortion in the case of rape (sort of)–I’m gong to dredge up the (in)famous 1971 article by Judith Thompson: A Defense of Abortion (full text). Thompson assumes for the sake of argument that the unborn human being has full ethical and legal status as a person, and so will I. (If you think that the unborn human doesn’t have human rights, then obviously abortion should be legal not only in cases of rape but in all cases, and so I’m setting that aside.)
One of the central thought-experiments in the paper is to imagine that a woman wakes up one morning to find that during the night someone has surgically attached her to a concert violinist to save him from being poisoned. No one asked the woman for her opinion on this decision, she was simply kidnapped and the violinist was attached. This makes the thought-experiment incredibly poor for talking about abortion generally (unless you think pregnancy happens by kidnapping, I guess), but it’s clearly relevant in cases of rape.
So the question Thompson asks is–starting with this scenario–does the woman have a legal right to refuse to donate her body to support the innocent concert violinist? Thompson argues that she does, and therefore abortion ought to be legal in cases like this. But wait: does Thompson mean active abortion, or passive abortion?
Here’s why it matters. Suppose that the woman says “I don’t have a legal obligation to be attached to this concert violinist, so I’m cutting the cord”, and with that she takes scissors and severs the connection between the two of them, leaving the concert violinist to die. This, Thompson argues, is permissible. Maybe so, but would it also be permissible for the woman to say “I don’t have a legal obligation to be attached to this concert violinist, so I’m killing him.” and then take her scissors and stab the violinist in the throat? I don’t think so.
There’s a serious disconnect between the philosophical abstraction of abortion, in which a woman merely says “I refuse to donate my body”, and the specific reality of abortion, in which a doctor carries out that wish by first ending a life, and then only afterwards removing the unborn human being from the woman. The ordering might not be so clear-cut because the fetus is removed in pieces and it’s not clear when death occurs vs. the first limb being extracted, but you get the picture–there are clearly two activities here: killing and removing/withdrawing support. Thompson’s argument supports the latter, but not the former.
The end result of all this is that, in the case of rape, it is arguably permissible to end a pregnancy by passive abortion (which, for all intents and practices, does not presently exist) but not through active abortion. This is why I support a rape exception… sort of.
The practical problem is that if we start changing the way we do abortions–for example, carefully snipping the umbilical cord rather than dismembering the fetus–then we’ve made the fatal mistake (from the pro-choice standpoint) of acknowledging that the unborn human being deserves some consideration. Once we start that kind of deliberation abortion as it currently exists in the United States simply cannot survive, because any genuine consideration of the interests of the unborn human being kickstarts our sense of empathy, and it’s all downhill from there for abortion-as-birth-control. This is a reason why I suspect that virtually no pro-choicer would ever agree that we ought to restrict abortion to passive abortions, even in theory and even if they are the kind of pro-choicer who can agree that the unborn human being is, in fact, a person. It’s a Pandora’s box that they do not wish to open.
There are a couple of additional perspectives I want to consider, however. The first is the perspective of the woman herself. If the critical flaw of the pro-choice perspective is to refuse to acknowledge the humanity of the unborn human being at all, the corresponding flaw of the pro-life perspective (though perhaps not as widespread) is to refuse to think seriously about the costs of unwanted pregnancies on women. Too many pro-lifers just don’t want to talk about it because to acknowledge the pain and sacrifice is to introduce ambiguity into the discussion. No activist likes ambiguity.
In Thompsons’s article the violinist is just attached in the middle of the night in an apparently painless procedure. That’s not a very good description of rape. (I can’t overstate how different they are, so I’m not going to try.) The legal health exception as defined in Doe v. Bolton is a joke, but there is a real self-defense argument to be made on health grounds. You are authorized to use deadly force to protect yourself not only from a threat to your life, but also from serous injury (including rape). If a pregnant rape victim’s suffering is severe enough and if an abortion will alleviate that suffering–or if the pregnancy is seen as a continuation of the rape, for example–then there is an argument to support even active abortion. Since I don’t know the answer to whether or not abortion can help rape victims in the long run, I don’t feel qualified to weigh in on the issue one way or the other, but it’s certainly a reasonable position.
On the other hand, there is the concept of necessity as a justification for otherwise criminal acts. To give credit, I first read this argument in a post by Rebecca Kiessling–who was conceived by rape herself. This is how she explains it:
In tort (personal injury) law, we have the long-standing “necessity doctrine.” This doctrine allows, for example, a boat in a storm to dock in someone else’s “safe harbor.” The right of the individuals on the boat need not be granted or bestowed by the dock owner — it exists independently, regardless of whether or not a sailor in peril has permission to be in the private harbor. The reasoning here makes sense: the lives of those on board are valued more than the right of the dock owner to have his property free from intrusion. That right, along with any inconvenience the dock owner suffers (even to the extent that the private dock is thereby destroyed) is subsidiary to the right to life at stake here. This remains true even if those on board the boat were in such a predicament because they had themselves been incredibly irresponsible in ending up out on the water in a treacherous storm in the first place. Likewise, an unborn child cannot ever be found to have been irresponsible in any capacity for ending up in such a vulnerable position and should, therefore, be granted at least the same consideration nd should be afforded his or her right to life.
Of course property isn’t the same thing as a person’s body, but this is a philosophical basis for the idea that even passive abortions ought to be banned in cases of rape, because the unborn human being’s life is in danger (they can’t survive outside the womb), and that danger will pass once they are born. How solid is this legal/philosophical basis? As with the question of the mental health of rape victims the honest answer is that I’m just not an expert and so I don’t really know.
So what’s the final verdict? Is abortion permissible during rape? The answer is still just “sort of”. I’d say that passive abortions should be legally permissible, but I can also see good arguments that active abortions should also be allowed or that not even passive abortions should be allowed. Here’s the thing: I don’t really care that much.
In terms of scale, the vast majority of abortions have nothing to do with rape, incest, life of the mother, fetal abnormality, or any of the other edge cases. 95% or more of abortions are done on healthy women who have healthy pregnancies with a healthy unborn human being developing normally. In terms of both the scale of the problem (lives lost) and also the moral and ethical outrage: that’s where the problem lies and that’s where I think the pro-life side needs to focus, rather than becoming distracted with infighting or leaving our case vulnerable to soundbites by taking a hard line on cases like rape or incest or fetal abnormality.
The other thing to keep in mind is what I alluded to earlier: abortion can’t survive as it currently exists in the US (on demand and endemic and used as birth control) in a context where we as a society have started to genuinely consider the perspective of the unborn human being. I’m not sure what the right answer to the rape question, but I actually have a lot of confidence that our society will reach a good conclusion once we can move past the ideological logjam caused by the Roe v. Wade regime. Everything changed when Roe v. Wade was implemented, and everything can change again once it is overturned.
Until then? I support a rape exception. Sort of.