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.

Decriminalize Domestic Violence? Really?

Okay, time for a little rant.

Apparently, the city council of Topeka, Kansas, is considering repealing the part of the city code that prohibits domestic battery. The problem arose because the county District Attorney's office, confronting a 10% budget cut, announced it would stop prosecuting misdemeanors--leaving that to the local municipalities. And this meant that domestic battery--which in most forms is a misdemeanor--was left to the cities to prosecute. Since the cities are not in any better financial position than the county, this literal passing of the buck just made matters worse. Topeka, like everywhere else, is looking to cut costs, and suddenly it has extra financial burdens dumped into its lap.


I empathise. Passing off costs to others is a common way to deal with budget shortfalls, but when the buck is passed in a climate in which everyone is looking to cut costs, the effect is that someone is left with an inordinately heavy burden. That in itself is a problem--it seems far better that the burden be shared equitably, which will only happen without this sort of buck-passing.

But that isn't the problem I want to focus on here. The problem is one of priorities. The problem is about what a society is willing to consider in situations of scarcity. One might reasonably ask whether some vocal minorities have so anathematized the "increase tax revenue" option that certain options that are far less tolerable end up being considered first. Yes, there are concerns about increasing taxes on those who have more than they need--worries that those taxed would, if allowed to keep the money, do more with that money to promote the common good than would the state. And there is no doubt that there are cases of government waste--but is it really true that the rich routinely use their money more productively, in terms of stimulating the economy and promoting the public good, than does the government?

When the matter at hand is domestic violence, I can't think of much that the rich would do with their excess that would compare, in terms of significance for the public good, to the importance of intervening in cycles of domestic violence. On this issue, it seems to me there can be no doubt at all. If the choice is between raising taxes on the rich and decriminalizing domestic battery, it's clear what should be on the table and what shouldn't.

This is not to say that these are the only choices. The point is that new taxes should be on the table long before we consider the idea of letting abusers beat their spouses with impunity. There are some things you just don't put on the table as things to potentially cut from the budget, so long as there are other options. And so long as their are people so rich that they've long ago hit the point at which increased wealth doesn't translate into increased human happiness, there are other options. So how did this proposal ever make it onto the table?

Some might object here that what is at issue in Topeka is misdemeanor domestic battery, not felony assault. Severe beatings and murders would, of course, still be prosecuted.

But a big part of the problem with domestic violence is that there is a cycle of abuse that has the propensity both to accelarate and to escalate. Abusers use violence as part of a broader pattern of control--a pattern that also includes contrition and apology, a "honeymoon" period, and a phase of escalating tension in which fear of another violent outburst has the victim scurrying to appease the abuser until, inevitably, she doesn't scurry quite fast enough.

Early in an abusive relationship, the outburst of abuse may be merely verbal, and it is an isolated event set against an extended period of bonding in which the victim feels special, perceiving herself as the treasured focus of the abuser's life--a perception which, perversely, has a measure of accuracy. Abusers do tend to make their intimate partner the centers of their lives. At the heart of abuse is a genuine human longing for intimacy that has been twisted by fears and insecurities into an obsessive need to maintain control over the intimate partner so as not to risk loss.

And the abuser relies on an arsenal of tools to keep the victim under control: sincere apology, gifts, adoration and worship, selective manifestation of insecurities and frailties at moments when such revelations are likely to inspire empathy, efforts to create dependence through financial disempowerment and social isolation, psychological hazing aimed at shattering self-esteem and (as occurs in fraternity hazing and some military training) rebuilding the victim's sense of worth around the abuser ("I'm nothing without him!"). And then, of course, there is physical intimidation, the looming threat of violence aimed at inspiring the visible displays of subserviance. This may provide the most tangible assurances of control.

And then, finally, the explosion of violence. Early on in the escalating cycle, it's a slap or a shove. But as the cycle progresses, the honeymoons get shorter. Perhaps the heady feeling of control that comes during the escalation towards violence is addictive, and so the urge to get to that stage sooner becomes irresistible. The "honeymoon" strategies become perfunctory, simply what needs to be done to keep the victim from running away in the wake of the violent episode--keeping her around so that the "drug" of her terrified subservience can be enjoyed again. And again.

The outbursts of violence become more frequent, and at the same time more extreme. Like the drug addict, the abuser needs more frequent and bigger doses to get his high.

The point of all of this is to stress the significance of misdemeanor domestic battery laws. What they do is make legal interventions possible at a stage in the escalating cycle when tragedy may still be averted. This is not something that we should even consider dispensing with when there are other, less terrible options. And there are other, less terrible options. While there are people who scream and rage as if a tax hike on the rich were the end of the world as we know, this sort of hyperbole cannot, must not, be allowed to distort our collective priorities so badly that decriminalizing domestic battery is preferred to mildly inconveniencing the richest Americans.

If one has a strong opposition to graduated tax increases, that argument should be heard and the reasons discussed in public debate. If there are instances of government waste that could be eliminated as an alternative to raising revenue, by all means these should be discussed. But when taxation is so villified that allowing domestic violence to occur with impunity makes it onto the table when revenue-increase options are possible, something has gone terribly wrong.

Am I missing something?

Piper's Fatal Patriarchy

Over on his blog I Think I Believe, Arni Zachariassen posted a video in which conservative evangelical preacher John Piper seeks to address the question of what a wife's submission to her husband is supposed to look like if her husband is abusing her. His answer should make anyone who has studied the dynamics of domestic abuse squirm in distress. Arni notes just how striking is Piper's lack of wisdom on this matter, and offers several incisive critical remarks.

In any event, the post inspired me to write a rather lengthy comment about what I take to be the root cause of Piper's lack of wisdom here. Readers of this blog may want to check out Arni's post both for its own intrinsic interest, and because I think it speaks to an issue that's come up on this blog before and that I want to dwell on more fully in future posts--namely, the idea that serious problems arise when religious communities and their leaders shape their ethics in terms of an uncritically embraced theology, as opposed to having their theology criticized and revised in the light of ethical insight.