A few notes: (1) SPL doesn’t take a stance on the rape exception and invites bloggers to discuss both sides of the issue. (2) Because I’m talking about rape and pregnancy, I use female pronouns to refer to rape survivors. However, please remember that not all rape survivors are women. (3) I reference Thomson’s Violinist a few times. If you don’t know what that is you can read a summary here. You can read more about my perspective on bodily rights arguments in general here.
I believe abortion should be legal in cases of rape. I find that many pro-life activists disagree very strongly with my stance. In the course of our discussions, they make assertions and ask questions that often reflect a misunderstanding of my position. In this post I am trying to clarify what I think the rape exception is—and isn’t—about.
The rape exception is about bodily integrity.
I should preface this point by saying, for me, the rape exception is about bodily integrity. There are many pro-lifers who believe abortion should be legal in cases of rape, and I expect they have a variety of reasons for their stance, including some reasons I am going to object to later in this post. So please understand I am not trying to speak for everyone who makes an exception; I’m only speaking for myself and the people who ground their stance in bodily integrity.
Our society pretty carefully guards people’s bodily integrity. We don’t have required blood, bone marrow, or organ donations, not even from the dead. Taking a non-voluntary blood sample from a drunk driver is controversial. We won’t legally require all citizens to get vaccinated. All of these situations involve risk to other people’s health and safety (people dying on organ waiting lists, people hit by drunk drivers, people getting what should be preventable diseases), but our society is generally willing to pay such a price; bodily integrity takes precedence.
Granted, none of those situations involves such a direct threat to another’s life as abortion. It’s hard to find a truly analogous situation. But I find most people agree that you should legally be allowed to unplug from Thomson’s violinist, even though that would allow the violinist to die.
As a baseline stance, we protect one person’s bodily integrity even at the expense of another person’s life. I think there are strong reasons to argue for an exception when it comes to most abortions.
But those reasons get a lot weaker when we are talking about pregnancy resulting from rape. It’s very difficult for me to imagine any other circumstance where we would tell someone she is legally required to give of her body that way when she did not cause the other person’s precarious position. (Justice For All has a great analogy to explore that concept in their De Facto Guardian paper. Everyone interested in the abortion debate should really read this paper.)
Because I don’t believe we should legally require people to give of their bodies in any situations analogous to pregnancies from rape, I can’t justify that legal requirement for pregnancies from rape either. My support for the rape exception is about my understanding of—and agreement with—how our society treats bodily integrity. And that’s all it’s about.
However, fellow pro-lifers (and, in fact, many pro-choicers) seem to think I believe abortion should be legal in cases of rape for a whole variety of other reasons—reasons that have little-to-nothing to do with my stance. I hope this post helps clarify a few issues.
1. The rape exception isn’t about valuing children conceived in rape less than other children.
When I tell other pro-lifers I think abortion should be legal in cases of rape, the most common response is “Why do you think children conceived in rape are worth less than other children?”
The answer: I don’t.
How we are conceived doesn’t change our worth. It is illogical and unfair to hold anyone responsible (especially children) for situations over which they have no control, and a child has no control over how she is conceived. This is why I hate the phrases (thankfully now rarely used) “illegitimate child” or “bastard child.” It’s why I also hate the phrases (unfortunately still often used) “rapist’s child” or “rape baby.” It’s wrong to assign a child negative qualities based on how she was created.
Rape doesn’t change the child’s worth, but it does change other factors that affect the morality of abortion. For example, as pro-lifers, we very strongly emphasize responsibility and consent to risks. How often have you heard any of the following?
The two parents consented to risking pregnancy, and they are responsible for putting the child in a position of dependence.
The real choice is the choice to have sex in the first place.
We aren’t talking about forced pregnancy because people choose to take that risk
We get frustrated when our opponents seem to suggest pregnancy happens in a vacuum, divorced from our choices and therefore wholly out of our control. So we respond with ideas like those listed above, and I get that. But when we’re talking about rape, those ideas are irrelevant. The child conceived in rape is worth just as much as any other, but a rape survivor is not responsible for the fact that the child is growing inside her. By definition, she did not consent to that risk.
So if responsibility and consent to risks are such important factors, it should be clear how cases of rape are fundamentally different even though the child’s value is the same. You would have to ignore the very nature of rape—the entire reason it’s so much worse and so controversial—to think fetal value is the only factor that could be different about a rape case.
2. The rape exception isn’t about the rape survivor’s emotional turmoil.
Because I think abortion should be legal in cases of rape, people have accused me of “caving under pressure.” They seem to think I just don’t have the nerve to tell women who are emotionally or psychologically traumatized that they should still carry unwanted pregnancies.
I do think it’s important to understand the gravity of rape and how it affects people. And I worry that some pro-lifers, eager to show the consistency of their pro-life stances, end up speaking callously or dismissively about rape. I think, as a movement, we should acknowledge that, yes, many rape survivors want to carry resulting pregnancies and need more social support. But we should also acknowledge that, no, not all rape survivors want to carry resulting pregnancies; some really, really do not want to. I often feel as if my fellow pro-lifers prefer to pretend those women don’t exist.
So yes, the rape survivor’s emotional turmoil is important and we need to strive to understand where she’s coming from. But actually, no, I don’t think her emotional turmoil justifies the rape exception (though some think maybe it could).
As a pro-lifer, when I think about the morality of abortion in a given case I try to imagine how I would view that case if we were talking about a born child rather than an unborn one. And we would not say killing a born child should be legal if the parent is too emotionally traumatized to care for that child. If we wouldn’t say that for a born child, I don’t believe the reasoning works to justify abortion either.
However, if we look at the issue in terms of bodily integrity, it gets more complicated. It’s hard to think of equivalent situations where born children are using their parents’ bodies the way unborn children do. To me, this is why grounding the rape exception in bodily integrity is so different, and more compelling, than grounding the exception in the woman’s emotional turmoil.
3. The rape exception isn’t about political expediency.
Some people assume I grant the rape exception because I believe that’s the only way we can get pro-life legislation passed.
I expect there are many people who grant the rape exception for this reason. After all, only about 1% of abortions are for cases of rape. Given that the debate over the rape exception is especially emotional, controversial, and entrenched, I expect many pro-lifers would rather focus on the majority of abortions which seem clearer cut—that is, abortions performed on a healthy fetus carried by a healthy mother for pregnancies resulting from consensual sex. I think some pro-lifers grant the rape exception to simplify the conversation. They believe it’s more effective to focus our finite political power elsewhere.
But even if we had the political power to do so, I would not support outlawing abortion in cases of rape. This is because I don’t argue for the rape exception to be politically practical; I argue for the rape exception because I believe it’s the right and consistent stance to take. Our society already guards bodily integrity even in cases where doing so can hurt other people, and to my view supporting the rape exception is consistent with that approach.
4a. The rape exception isn’t about punishing the child.
I’ve talked about this point before. People who make this claim usually try to assert that if you advocate for an effect that harms people, you are punishing those people regardless of your motivation. So even if I don’t want to punish anyone for being conceived in rape, they assert that, effectively, I am still punishing the children.
But all we have to do is apply this line of thinking to a myriad of other topics and we see the assertion is disingenuous. If you believe marriage should be between a man and a woman, does that mean you want to punish people for being gay? If you support social welfare of any kind, does that mean you want to punish taxpayers? If you believe we shouldn’t be legally obligated to donate our extra kidneys, does that mean you want to punish people dying while they wait on organ donor lists? Why do you think people waiting on organ donor lists are worth less than everyone else? Why don’t you care about their lives??
See what I did there?
You can apply this punishment accusation to almost anything. If we’re saying that motivation is irrelevant and only effect matters, then when you support any sort of law or regulation or principle that narrows the options of any group at all, people can accuse you of wanting to punish that group. In fact this is the exact mentality that leads so many of our opponents to accuse pro-lifers of wanting to punish women for having sex. If you think that accusation is unfair, maybe keep that unfairness in mind before accusing those of us who support the rape exception of wanting to punish the child.
4b. The rape exception isn’t about avoiding punishment for the rapist!
How many of you have heard (or said) “punish the rapist, not the child”? Is there a rule I don’t know about that says if I support a rape exception, I am not allowed to also support punishing rapists? Are the rape exception and punishments for rape mutually exclusive? Does anyone actually believe that people who support the rape exception have some desire to take the focus away from rapists?
I mean, seriously, where do people get this phrase? What is the logic behind this idea? People who advocate for the rape exception often do so from a place of particular empathy for rape survivors and particular concern over the continued violation of their bodily integrity. There’s really no reason to tell us—of all people—to “punish the rapist.” I’m not sure I can overemphasize how baffling this phrase sounds.
And the phrase isn’t just baffling because it implies we don’t care about punishing rapists. It’s also ignorant because it makes it sound as if punishing rapists is a simple thing to do. Do you know how many rapists ever even get accused of their rapes? And of those who get accused, how many have formal charges brought against them? And of those who get charged, how many go to trial? And of those who go to trial, how many get convicted? Seriously, do you know? Because it’s not many. It’s an appallingly small number, actually.
Why? Well, there’s no shortage of reasons. Many rape survivors have great difficulty telling anyone, much less telling the authorities, about what has happened to them. Some aren’t psychologically prepared to process it. Many fear they won’t be believed, or that there will be repercussions against them.
A woman who gets pregnant due to rape can find herself in an even more complicated situation, with geniuses like Todd Akin acting as if she doesn’t exist, and with a society that assumes she will want to abort. And, if she chooses to carry her pregnancy, that same society treats her with increased suspicion about whether she was really raped. And, if she lives in one of the majority of states that don’t have specific custody laws regarding rapists, she also risks having to share custody or deal with visitation or other parenting issues with her attacker for years to come. There are already cases where rapists have threatened to assert parental rights unless these women drop charges or testimony against them.
Even if a rape survivor decides to go to the authorities, if she takes a while to work up the courage much or all of the forensic evidence may already be lost, if there was any forensic evidence to begin with! Sometimes there isn’t any.
Even if she goes forward quickly and there is evidence and she has the evidence collected, it doesn’t guarantee a successful prosecution. What’s the difference between forensic evidence of rape and forensic evidence of consensual sex? If he didn’t leave signs of other physical violence (such as bruises or strangulation, etc.) and if she didn’t try to physically fight him off (potentially leaving signs of physical violence on him), the evidence between rape and consensual sex can be indistinguishable.
(And please note that many rapes don’t involve that level of physical violence. Our society falsely believes the “stranger-rape prototype,” where people think “real” rape requires a stranger attacking in some alley with a weapon and threats of violence. In actuality, most rapes are by someone the survivor knows, occur without weapons, and happen in the survivor’s home or the home of a relative, friend, or neighbor. Imagine what kind of evidence those rapes leave.)
When people tell me “punish the rapist, not the child,” I hear “I really do not understand your perspective and I am unaware of what a complicated, painful, and seemingly intractable problem rape is from a judicial standpoint.”
5. The rape exception isn’t about “undoing” the rape.
You don’t “undo” rape. Whether a rape survivor gets pregnant or not, whether she carries that pregnancy or not, she was still raped.
When a rape survivor gets pregnant and doesn’t want to be pregnant, there are two separate issues: (1) she was raped, and (2) she is pregnant against her will. The rape exception is about addressing the second issue, not the first.
6. The rape exception isn’t about wanting women who were raped to get abortions.
This is a less common accusation, but occasionally people will try to claim that I favor or am okay with abortion in cases of rape.
Actually I think abortion in cases of rape is immoral, because it takes the life of an innocent human being. I think the moral choice is to carry the pregnancy and give life to a child who had no choice in how she was conceived. Likewise, I think it would be moral to stay plugged into Thomson’s violinist, and it would be moral for all of us to go donate blood, bone marrow, and our extra kidneys to save other lives. That doesn’t mean I think those actions should be legal requirements.
People ask if I could look in the eyes of those conceived in rape and tell them they deserved to die. No, I couldn’t. Because I don’t think they deserve to die. And I don’t think I have to pretend to think they deserve to die to support the rape exception.
Should we legally require people to donate their extra kidneys? No? So can you look into the eyes of someone dying in need of a kidney, and tell her she deserves to die? Man, I hope not. That’d be cruel and senseless. It also probably has nothing to do with your opposition to forced kidney donation. The same idea applies to the rape exception. Please don’t assume that because I think this should be legal, I think it’s a good choice. Those are different issues.
I know many pro-lifers disagree with me on the rape exception. This post is not my attempt to convince you to make the rape exception. I just ask that, when you are debating the rape exception with someone, first try to find out how they ground their position. You may be surprised by all the points we agree on.