Abortion Prohibitions, Rape Exceptions, and Roe v Wade: Is it feasible to prohibit abortion while making it available to rape victims?

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.

Do Not Return to Silence: A Plea

It's a lot to ask, I know, but still I beg it: Do not return to silence.

Christine Blasey Ford didn't want to go public because she didn't think it would do any good. She feared she'd expose herself and her family to all manner of pain and hardship, and it wouldn't make a difference. The engine had been gathering speed for a long time, and her voice would not be enough to stop it.

She was right.

Nevertheless, I beg: Do not return to silence.

There are many who say it's a good thing that her voice didn't prevent Kavanaugh's confirmation. They speak sincerely about witch hunts and the presumption of innocence, about attacking the integrity and honor of a man who has hit all the career milestones and achievements of someone striving to earn a seat on the Supreme Court. They speak of the hardship he and his family must endure because a woman shook off years of silence, stepped hesitantly into the public spotlight, and spoke with credibility and earnestness about a distant memory in which only a few things were utterly clear: his face, his name, the pressure of his body and his hand over her mouth, and the laughter.

We cannot let that be enough, they say, or we open a Pandora's Box of false accusations. We must make an example of her--show the world that her voice alone cannot derail this man's career trajectory--so that men like him do not need to fear.

And so, in the name of keeping men safe, the old social forces grind on, demanding silence.

Nevertheless, I beg: Do not return to silence.

Her words, spoken with such conviction and such power from a place of humanity and pain, were offered without the benefit of the kind of sustained investigation that might turn up corroboration. Never mind for the moment who is to blame, but her words were delivered in a context and with a timetable that guaranteed there could be nothing else, that it would be her words alone, her naked words against a man with the brass ring of a Supreme Court seat almost in his fist, a political party with the brass ring of majority control of the Supreme Court almost in its fist. And the decision-makers went through the ritual of listening to her bare words before delivering their inevitable verdict: "Yes, a credible witness. A sincere voice. No doubt something happened to her. But it's her words alone."

Nevertheless, I beg: Do not return to silence.

She became a target and a pawn in a polarized political battle. Some surely saw her as a tool, as an opportunity to exploit. Others saw her as a threat to their political aims. For a few brief moments, perhaps, as she told her story, they saw her as a person. For an a hour, perhaps, it was about her humanity. But before and after that hour she was one piece to be played for political points, and her humanity was something to be buried by those whose political aims were threatened by her naked words.

Nevertheless, I beg: Do not return to silence.

While some career politicians opportunistically exploited her, others opportunistically exploited the public's disgust with political opportunism and exploitation. They slathered this woman with all the ugliness of the partisan politics that swirled around her, as if she were to blame for it. It no longer became about her and her story and the question of Kavanaugh's character. It became, instead, about whether the Democrats were timing the release of her story for maximum political effect and asking for an FBI investigation to drag out the confirmation process until after the midterm elections. "Is she telling the truth?" was transformed to "Did the Democrats behave with propriety and decency in the confirmation process, free of manipulative tactics?" And the political cynicism that gives an inevitable negative answer to the second question was treated as, by default, giving a negative answer to the first. She was no longer just responsible for her own words, her own story, her own connection to the truth. She was made responsible for all the ways that others might use those words and that story and that truth.

Nevertheless, I beg: Do not return to silence.

The very President of the United States of America mocked her testimony in public. In front of a crowd of cheering supporters, he made the most painful moments of her life into the brunt of a joke. He laughed along with the crowd.

Nevertheless, I beg: Do not return to silence.

She was forced into a room by two boys, overpowered, pinned by the weight of a male body and afraid for her life when his hand pressed down over her mouth to keep her silent. And when forced by the weight of circumstance and her own sense of duty to at last break that silence, she was subjected to harassment and death threats of such magnitude that she and her family had to move out of their home for their own safety. There was no evidence that she was anything but sincere in her reasons for breaking her long silence; but an entire movement built up around the notion that Brett Kavanaugh was the true victim in this case. Images sprang up on social media of him and his family along with the caption, "Pray for this family." Senators waxed indignant about the abuse he suffered, apologizing to him as if he'd been subjected to the moral equivalent of sexual assault.

As if his life would be ruined if he wasn't granted the most highly respected position it is possible for one in his field to receive, forcing on him the indignity of finishing out his career in a position that is merely one of the most highly respected positions someone of his career can receive.

As if it is an affront to his dignity and honor to be required to confront this story, this harrowing story of someone who said she had suffered by his hand (and by the weight of his body, and by the sound of his laughter). Not required to face trial (that would never happen) or even a full investigation unhampered by rigid timetables, but simply to be part of a proceeding in which both he and she are given equal time to state their accounts.

How dare they! How dare they subject him to this witch hunt, this violation, this assault on his good name. As if requiring him to do it is akin to pushing him into a darkened room, tearing at his clothes, almost choking him in the effort to keep him silent.

Nevertheless, I beg: Do not return to silence.

It's asking a lot, maybe too much. I cannot demand it where the costs are so high. I can only beg.

I beg it because it is the only path that has the hope of bringing insight and understanding to a world so fogged by ignorance and confusion. It is the only path that has the hope of restoring balance and equality and the dignity of women and girls in a world that sits in the shadow of centuries of patriarchy.

I beg it because in a world where women and girls are silent, all women and girls are in greater danger of being victims (including the ones who hold my heart). In a world where men and boys can trust in silence, and in the forces that make examples of those who refuse to stay silent, men and boys will think they can get away with it. As they did with so many women I know (I name you in the silence of my heart, because it is not my place to break your silence).

As one of them might do, one day, with my daughter. And her classmates. And her gymnastics teammates. And her generation. Unless the forces meant to keep women silent are battered and battered again by women who refuse to stay silent.

It's asking a lot, maybe too much. Still I beg it. 

And unfortunately I beg it in a world where false accusations of sexual harassment and assault do happen. They are far rarer than the routine reality of sexual harassment and assault, but the forces supporting the status quo have an interest in making those false accusations loom large. I beg you not to return to silence; I beg it so that the truth will loom larger still. If all the real instances of sexual harassment and assault are made evident in a litany of honest voices sharing honest stories without agendas, the fable that the biggest danger is the false accusation will be battered down. False accusations loom large only in a world where the chorus of true stories go unheard.

That doesn't mean we shouldn't hear the voice of the one who has been falsely accused. I feel I must say this to those who are prone to misunderstand. There is a difference between shutting down the lie that false accusations are more common than rape and shutting down the person who says, "I have been false accused." False accusations do happen, and it won't serve the cause of truth to deny this or to pretend that we should do nothing to protect the victims of false accusations. What will serve the cause of truth is to recognize what the existence of false accusations calls for.

It does not call for us to treat every person who comes forward to share the pain of sexual assault as if they were a liar bent on ruining lives. What it calls for is discernment, and wisdom, and compassion.

Acting with wisdom and discernment and compassion means that when we are talking about a criminal trial where the accused faces punishment if found guilty, we should presume innocence until guilt has been proved beyond a reasonable doubt. But it does not mean that we must extend this "beyond a reasonable doubt" standard outside the courtroom. Depending on the nature of the case, a single witness, no matter how credible, may not be enough to send someone to prison for child abuse in the absence of any corroborating evidence. But one credible witness is surely enough to justify my decision not to hire that person to be my babysitter. It isn't wisdom or discernment or compassion to apply the standards fitting for the courtroom to every facet of social life.

And again, so that I am not misunderstood, I feel compelled to add that this doesn't mean there should be no standards at all. It doesn't mean we should be so credulous that any mean-spirited chronic liar can stop us from honoring a deserving person just by fabricating a story. It means that the standards should be determined by what is at stake, by what we risk by being wrong, by who is vulnerable and who is not, and by how likely it is that someone would, in the circumstances at hand, come forward as they have done if what they were saying was a lie.

Most of all, wisdom and discernment and compassion means this: in ordinary life, when someone speaks out about sexual harassment and abuse, we listen to them as we listen to others who share their stories: with a presumption of their innocence--a presumption that they are sincere and honest, not calculating liars aimed at unjustly bringing others down.

Of course that presumption can be defeated. We cannot ignore the character and credibility of those who speak, or close our eyes to the darker motives that may give them a reason to lie. But wisdom and discernment and compassion means we pay attention to whether there are such reasons to doubt credibility. It does not mean we permit sustained smear campaigns aimed, not at determining their credibility, but at undermining it.

What wisdom and discernment and compassion demand depends on context, on what is at stake, on who risks the most and what the harms of error will be. And the world will not understand what is at stake unless the victims of sexual harassment and assault refuse to remain silent, despite all the forces ranged against them.

And so I beg: Do not return to silence. A world defined by wisdom and discernment and compassion depends upon the voices of those with the courage to speak.

Should Roy Moore Withdraw?

Should Roy Moore withdraw from the Senate race in favor of another Republican candidate?

There are different ways to approach this question. You could approach it as a moral question. Or you could approach it as purely a question of political expediency.

I think the question of political expediency is easily answered but far less important. If you're a Republican, then even if you care only about retaining the Republican majority in the Senate and nothing about the moral character of office-holders (hopefully that isn't true of my Republican friends), the answer would seem to be this: you should hope that Moore withdraws and try to convince him to do so. Democrats who care nothing about moral integrity (hopefully not the case for my Democratic friends) would likewise hope that he stays in the race.

The reason for this is pretty clear. In Alabama, the Republican nominee for a Senate seat would ordinarily be a lock to win. But now we have this growing body of allegations from both women and people in Moore's home town, all painting Moore as someone with a history (while he was an adult professional in his 30s) of sexual pursuit of teenager girls as young as 14. One allegation, if true, would be a clear case of sexual assault. This situation means that if Moore does not withdraw, a seat that is usually reliably Republican has become vulnerable. And so Republicans who care only about party victory should call for Moore to withdraw, and Democrats who care only about party victory should sit back and hope he stays in the race while the scandal grows.

But what should people who care about basic decency, regardless of politics, recommend? Here, there are two questions that seem relevant. First, how bad is it for a man in his 30s to chase after girls as young as 14, and what does it say about that person more broadly? I'm not going to explore this question because I find the answer obvious: it's very bad and says nothing good. This is why I've stopped watching Kevin Spacey, whatever his acting skills. 14 year olds are children.

The second question has to do with when we should believe a charge of this magnitude when it is leveled against someone. More precisely, when can I legitimately act on such a belief? Here, it matters what kind of action we're talking about. There's a big difference between locking someone away based on a belief, and withdrawing political support or urging someone to withdraw from a political race.

The question of whether to support a political candidate is a different question than that of whether to convict someone of a crime. We don't want to lock away innocent people, and so in a courtroom we should presume innocence until guilt is proved. But we don't want to risk having seriously morally compromised people wielding enormous political power, which is why "innocent until proven guilty" is surely too high a standard of evidence for decisions about who to support for political office.

Accusations are of course easy to make, and so uncorroborated accusations may be insufficient reason to withdraw support from a candidate. But when there are enough allegations whose verifiable details have been confirmed, all mutually reinforcing each other, to make a claim of this sort *credible*, that strikes me as enough to warrant withdrawing political support.

Of course, so much hinges on our trust in the journalistic integrity of those who report these allegations and the investigation into them. Here, it makes a difference to me that the story was broken by a venerable newspaper that, whatever its political biases, is known for having the highest standards in terms of gathering evidence and assessing the credibility of sources before going to print. The Washington Post (like every news outlet) may be influenced by political bias when it comes to choosing which stories to focus on, but when they report on a story their reputation for following journalistic standards is high.

Are there skeletons in other political closets that haven't been exposed and are just as bad? Probably. But we cannot ignore a skeleton that has fallen out of a closet because of hypothetical skeletons that might be hiding in other closets.

So: I think Moore is now a vulnerable candidate whose continued candidacy might actually give a Democrat an unprecedented chance of a win in Alabama. But I think Democrats should ignore this and join calls for Moore to step aside in favor of another Republican candidate even though this means closing a political "opportunity." And I think Republicans should call for him to step aside for a reason far more important than politics: because it's the right thing to do.