Roe v Wade and "Middle-Ground" Approaches to Abortion Law
Roe v Wade has essentially guaranteed for the last half century that any woman who wants to have a legal abortion can have one--and by extension, all rape victims who find themselves pregnant with their rapist's baby. Roe v Wade has not just precluded absolute bans on abortion, but also what many would call "middle ground" policies: legal policies that outlaw abortion in general, but allow for it in some specified range of justifying cases.
For fifty years, such middle ground approaches have been just as hypothetical as outright bans. But with the very real possibility that the Supreme Court is poised to overturn Roe v Wade, they're no longer just hypothetical. And many Americans are drawn to some kind of "middle ground" position: they are uncomfortable with abortion on demand, thinking that it shouldn't be allowed under "ordinary" circumstances; but they think that a sweeping prohibition is just as troubling, because there are special cases in which abortion should be legally permitted.
The special cases most commonly mentioned are rape and threat to the life of the mother. What I want to focus on here is the former. In other words, I want to here consider the idea that we can outlaw abortion in general but still make it available, legally, to rape victims (including incest victims). I’ve been teaching the ethics of abortion for about thirty years, and to say that this idea is popular among my students would be an understatement.
The Philosophical Argument for the Middle-Ground View
I can understand why. Most of my Oklahoma students, along with many Americans, see the fetus as a human life with a person’s right to life. But they also recognize the force of arguments from bodily autonomy. The whole idea of the state forcing people to make their bodies available to be used by other people—even to save their lives—makes them uneasy. For example, nobody should be able to force me to donate a piece of my liver, even if it is the only way to save the life of another person (even an innocent person who did nothing to put themselves into this situation, a person with a fully-intact right to life).
But, argue the supporters of this middle ground view, the robust right to bodily autonomy doesn’t apply if the person has intentionally done something that they know will make another person dependent on them to stay alive. Sure, the state shouldn’t be able to force me against my will to donate my body or part of it to keep another person alive. But if a woman has consensual sex, she does so knowing she could get pregnant. She knows that by doing this, she risks a fetus becoming dependent on being connected to her body for nine months in order to stay alive. Supporters of this view argue that if, knowing that risk, the woman chooses to have sex anyway, she’s forfeited her right to refuse to sustain the resulting life.
But in rape cases, the victim didn’t choose. And so her right to bodily autonomy remains fully intact. And so no one can require her to make her body available for the fetus to use, even if the only alternative is abortion and the death of the fetus.
Supporters of this middle ground view don’t usually formulate their thinking quite this explicitly. It usually takes some reading and reflection and Socratic questioning for those of my student who favor this view to lay out their case for it in the terms sketched out above. But I think, even so, that most people who adopt this view are thinking along something like these lines.
If you start by assuming the fetus is a person with a person’s right to life, combine it with a general support of the right to bodily autonomy, and add a compassionate awareness of the ways in which that right has been profoundly violated in the case of rape victims, the resulting view seems quite sensible.
...at least if we're thinking of it in purely hypothetical terms. But today, as already noted, the view is no longer just hypothetical. So we need to ask: given the realities of the law and American society, could we actually protect the right of rape victims to have abortions in the face of a more general prohibition?
To answer this, let’s try to envision how this rape exception would work.
What Would a Rape Exception Look Like?
Would you grant an exception only in the case of a “confirmed” rape victim? And if so, how would you confirm that someone was raped? The most obvious answer is through the criminal conviction of the person who raped them. But that’s not going to fly. First off, the baby will likely be born before anyone is convicted. Secondly, securing a rape conviction in this country is hard. If there is a list of crimes that includes an unusually high number of people who are guilty as sin but have avoided conviction, rape would be at or near the top of that list.
So maybe the law could look to some less decisive confirmation than a criminal conviction. But what would that be?
Keep in mind that most rapes are acquaintance rapes, many cases of rape rely on intimidation or drugs or other means where there is no overt violence or infliction of physical injury, and victims are routinely so traumatized or ashamed (or both) after their violation that they retreat into seclusion and don’t talk about what happened to them, let alone go to the hospital for a rape kit or go to the police to make a police report.
Those who have been violently raped by strangers are more likely to seek medical care and police intervention in the immediate wake of the crime. But when the rape is at the hands of a friend or loved one, someone trusted by the people the victim knows, the confusion and sense of betrayal and self-questioning make the sort of timely actions likely to produce evidence far less likely.
Is it reasonable to expect rape victims to hold themselves together enough—in the wake of the worst thing that’s ever happened to them—to gather evidence of whatever sort they can manage in the horrifying event that they might end up pregnant? Or maybe we should just expect them to--what?--call the police? File a police report? Go on record that they've been raped?
Remember that many rape victims are children. Can we reasonably expect children to engage in this kind of forward-thinking action in the wake of traumatic violation? Recall that many of these child rape victims were raped by their own fathers or uncles or grandfathers or dear family friends. Perhaps they have been groomed carefully and warned of the horrible consequences if anyone ever finds out. After being victimized, they cower in fear of anyone learning the truth—until they discover they're pregnant.
Given these realities, how likely is it that, in general, rape victims will have anything more than their word to support the contention that they’ve been raped?
And then there are the cases in which women grow up and marry within deeply patriarchal cultures and find themselves without any sexual autonomy in their marital lives. Their whole culture and community reinforces the message, and enforces the norm, that their consent to sex with their husbands is irrelevant. It is their duty to quietly endure whatever their husband wants to do to their bodies, and they live in stark terror of being saddled with yet another child. These women are raped not just by their husbands but by a culture that normalizes and enforces the idea that consent doesn’t matter.
In such cases, it is hard to credit the idea that they have made a free choice to have sex and so are responsible for any pregnancy that results. But it also hard to credit the idea that they would file a police report every time their husband has sex with them, or that--if they are able to slip out of their husband’s grasp long enough to visit an abortion provider--they would be able to do so in possession of legally-compelling evidence of rape.
And then there are abused wives whose lives are very similar to what I just described, although instead of being immersed in a subculture that aids and abets the domination of wives by their husbands, the husband just relies on the more ordinary sexism and gender socialization of American society, combined with patterns of domestic tyranny and secrecy, to maintain control. Perhaps such an abused wife is able to slip away to an abortion provider—but can she do so with proof-in-hand of what is happening to her? Could we reasonably expect her to file a police report every time she submits to unwanted sex with her abusive husband?
Of course, one might say that she should be going to the police, pressing charged, leaving home, etc., for all kinds of reasons other than securing legal access to abortion. But anyone who has studied patterns of domestic violence knows just how hard it is to take these kinds of steps. Among other things, it is a well-known fact about cycles of abuse that the most dangerous thing an abused wife can do is leave her husband, because that is when he is most likely to turn to murder. To minimize the risk of death, timing in taking these steps may be everything--and the timing for escaping an abusive husband may not match up with the kind of timing needed to get an abortion.
Should we tell abused wives that in order to secure an abortion for a pregnancy that resulted from months of routine rapes in a terrorist marriage, they have to first take the kinds of steps that magnify their chances of being murdered?
The obvious thought at this point is this: their word should be enough. But what does giving your word look like? Swearing under oath? Signing some form at an abortion provider? And would it just be some vague statement that one was raped or a specific accusation?
Right now we live in a world where false accusations of rape are extremely rare. There’s just nothing good that could come from it in most cases, given the ways in which rape victims are treated and given the frequency with which rapists get away with it. Far more common than false accusations is silence in the face of sexual assault.
All of that could change if a rape accusation became the only pathway to a legal abortion. But the implications are worse than a possible proliferation of false rape accusations. Because real, traumatized victims, unready to come forward and talk publicly about the horrible thing that’s happened to them, may still be unable to push themselves to take that step even if legal access to abortion depends on it.
So instead of providing abortion access to those victims whose right to bodily autonomy has been so egregiously violated by an assailant, a law like this would be making it most readily available to those who find it easiest to say they were raped, whether they were or not.
Strong criminal penalties for false claims of rape may sound like a partial solution, but how does one go about such a thing? How do we avoid punishing a real rape victim because they’re not judged credible, or because friends of the rapist come forward to discredit her—all the same ugly things that rapists use to ruin the lives of their accusers, but this time used by rapists as a way not to avoid prison but to get their victim thrown into one? If there’s even a hint that this could happen, the fear of prison may encourage many rape victims to choose to stay silent—and pregnant—rather than tell the truth and risk being criminalized.
To avoid the potential for such weaponization of the law to target rape victims, we might require that women seeking abortion via the rape exception simply sign a form attesting to being raped, without any policies aimed at corroboration or penalizing abortions sought under false pretenses. But then we're essentially back to abortion-on-demand, at least for anyone willing to lie.
I could go on, but I think my point is clear enough: it is extremely hard to envision any law that could give rape victims ready access to abortion while withholding abortion access from others.
And so, unless I’m missing something obvious, implementing this middle ground view at the level of the law is untenable. While a general prohibition on abortion might be able to accommodate other kinds of exceptions such as life-threatening pregnancy cases (whether this is true or not I leave my readers to explore on their own), it does not seem it can plausibly accommodate a rape exception.
And so, if you think that rape victims have a moral right not to be forced by law to carry a pregnancy to term (equivalent to the kind of right I have to not be forced by law to donate an organ to save another’s life), the only realistic legal way to guarantee that right is to make abortion legally available to any woman who seeks.
And if you support a general prohibition on abortion, you will likely have to live with denying legal abortion access to fourteen-year-olds raped by their uncles, battered wives raped by their abusive husbands, all the young women betrayed and raped by young men they trusted, and all the other sexual assault victims who end up pregnant with their rapist's baby.
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