The Hard Case of Rape, Revisited

I have written before on the rape exception, and I would like to do so again to take another crack at convincing my pro-life colleagues who hold to a rape exception that we should not allow legal abortions in the case of rape. Please see my previous article for more of my thoughts on the rape exception. I will not be re-hashing any of those thoughts in this article.

I understand that rape is a horrible crime, one that should never happen to anybody, and that it is a very difficult thing to go through. I understand all this, and I do not wish to belittle anyone who has gone through this. I will be taking a dispassionate look at the issue because my point is to look at the moral equation and see what the right thing to do is in this situation, and the right thing to do is rarely the easy one. So please don't be offended if it seems like I'm not looking enough at the plight of a woman who goes through this terrible atrocity. In the article I just linked to, I spent a good deal of the article addressing women who go through this.

It bears mentioning that there are two separate aspects to the abortion issue: whether abortion is moral, immoral, or amoral, and whether or not abortion should be legally permitted. Some immoral acts, like adultery, are legally permitted whereas some legal acts (like abortion-on-demand and slavery) are immoral. My pro-life colleagues agree that abortion in the case of rape is immoral (as far as I can tell), so I'm not going to concentrate on that question. The question I will be addressing is: should abortions in the case of rape be legally permitted?

There are many pro-life people and organizations who demonize these pro-life people as "pro-choicers in disguise," or "not true pro-lifers," but this is highly mistaken. If anything, I think they should be commended for taking a reasoned view to the pro-life position. Finding people who think critically about the abortion issue is difficult, on either side of the issue. Besides, the abortions they believe should be legally permitted make up less than 1% of all total abortions. So we should, at the very least, concentrate on what we all have in common, which is that the vast majority of abortions need to be made illegal again.

Now, I also believe that all human beings are created in the image of God and Jesus taught that we have special obligations to those in need, going the "extra mile" as it were to be the good Samaritan. But again, the pro-life advocates I know who hold to the rape exception are not religious people, so I will be appealing to shared intuitions common to all human beings. No religious arguments in this article.

To begin, we start with the famous violinist scenario as formulated by Judith Jarvis Thomson (see the linked article if you are unfamiliar with the thought experiment). The responsibility objection, that is, the argument that if a woman willingly engages in sexual intercourse she has no right to kill the unborn child to expel him from her body is a strong defeater for that argument. The problem, though, is that it does not defeat the case for abortions in the case of rape.

So that being said, while I appreciate the ministries of people like Rebecca Kiessling and others who have been conceived in rape, it's not enough simply to say "if I had been aborted, I wouldn't be here," or that we are dehumanizing children conceived in rape by saying that abortion should be legal in those cases. Those are emotional arguments that miss the point entirely. Those things are all true; but if Thomson's violinist argument succeeds in the case of rape, then while it would be immoral it should be legally permitted to abort someone in the case of rape. This is not dehumanizing that child; in fact, arguing from bodily rights presupposes that the child is a human person. If the child is not a human person, then discussion of bodily rights is essentially meaningless.

If you haven't yet read it, pro-life advocate Steve Wagner of Justice for All has written an article engaging with the right to refuse argument in the case of rape. You can find it here. I would encourage you to read that article first, then come back and read this one. I won't go over that argument here, since Steve gives a thorough treatment of it in the article. But I would like to offer some of my own points here.

Parent vs. stranger

There are several differences between a pregnancy resulting from rape and Thomson's violinist scenario. The first is that with the violinist, he is a complete stranger, whereas in the case of rape we are dealing with the woman's biological offspring. Some pro-choice people argue that simply being biologically related doesn't make one a parent, but I find this to be a specious argument. In all relevant respects except for one, consent, the raped woman is that child's mother. The child will take after the mother because he/she is genetically related. I also think we can see quite clearly that there is a difference between our own child and that of someone else. As my friend Josh Brahm says, if your neighbor's kid raids the fridge, it's stealing. If your own kid does, it's not. And the reason that we call moral obligations "obligations" is because they are not always chosen. If I find a child dropped off, alone and freezing on my doorstep, it seems I have an obligation to take her in, even though she is not my child. If I close the door and leave her out there, I have done something wrong. But what if I find a note that says this is my child that a woman I once impregnated never told me about? Then doesn't it seem like that would make it much worse if I were to close the door and leave my child to freeze, even though I never knew she existed and never expressed any desire to care for a child?

Now, the aforementioned Steve and Josh use the example of Pixar film Up. It's the real-life tale of Carl who, after the death of his wife, ties balloons to his house so that he can fly away to South America. Okay, it may not have actually happened. But while he's several thousand feet in the air, he hears a knock on his door. There's a boy scout, Russell, who apparently was stuck on his porch and asks to come in. Carl does, but suppose he had decided not to. If he had closed the door and allowed Russell to fall to his death, and his house eventually lands, I'm sure we would all say that Carl did something wrong. But if the police find out about it, the question is this: Should Carl be held accountable for Russell's death? Should he be charged with a crime for allowing Russell to die rather than taking him in and keeping him safe? I think he should. In this case, he became Russell's de facto guardian (a term used in Steve's paper that I linked to). In the same way, whether or not you agree that a raped woman is the mother of this child, at the very least she becomes her de facto guardian, and it seems to me she has a moral obligation to keep the child safe which should be extended to a legal obligation.

Dismemberment

A second difference is the fact that the child cannot be safely removed from the womb. The child must be dismembered and then removed. This seems to be a pretty big difference. What if the only way you can unhook from the violinist is to hack him into pieces? Should you, then, have the legal right to hack him into pieces to remove yourself from him? I should think that answer would be no. So at the very least, if you support the rape exception, you should not support surgical abortions in the case of rape. The violinist would only justify abortions that are literally like unplugging, such as RU486.

Child is a victim

The last difference I will look at is that the child is as much the victim as the mother. The mother was the victim of a horrible crime, there's no doubt about that. The rapist should be prosecuted severely, more severely than they prosecute rapists now, in fact. But the child is an innocent victim of the crime, having come into existence by the very same act of violence against the woman. The violinist in the scenario is not the victim of a crime but is suffering from a prior condition: the kidney ailment. Now someone has once responded that the unborn child is suffering from a prior condition of lack of viability, but I find this response to be unconvincing. For example, a space alien could not drop me off on the Moon and claim that he didn't kill me, I died due to a prior condition of not being viable in the atmosphere of the Moon. In fact, let's imagine a world in which human beings, upon turning 18, develop gills and must live out the rest of their natural lives in the ocean. Once they are born from the womb, they are still on a developing trajectory of viability to an aquatic place where they will live out the rest of their lives. If someone were to drown you when you were five, I seriously doubt that they would get off based on the fact that you simply weren't viable underwater. So it seems that the argument that "lack of viability" is a prior condition that the child died from doesn't hold up.

In fact, Mike Adams notes that we don't kill someone for raping someone else because we recognize the rapist's right to life. This is true even if the victim is a child who is raped and tortured, but doesn't die as a result of the attack. He notes that in this case, the rapist has a right to life, the woman has the right to an abortion (legally), and the unborn child is the only one in this case not recognized as having any rights.

So considering that both mother and child are victims of this horrible crime, I don't believe it can be justified that we should legally allow a woman to have the child killed. Not only is it better to suffer evil than to inflict it, but to allow abortions in this case violates a basic ethical principle: we cannot kill one person to benefit someone else. This is not a lack of compassion for the person suffering, it is unwillingness to commit murder in an attempt to ease the person's suffering. [1]

I have devised two more thought experiments, to test our intuitions about whether or not abortions should be legal in the case of rape.

Scenario one: Suppose that a mad scientist, let's call him Dr. Moreau, kidnaps you and puts you in a room, tied to a chair, with electrodes all over your body and a red button on the armrest to the chair that you're strapped to. In the seat next to you is a child, likewise tied to a chair. Doctor Moreau sits behind a panel across from you and informs you that every time he presses this button, you will be filled with extreme pain from those electrodes. If you press the red button on your chair, the child in the chair next to you will be killed but you will be set free. I think we would all agree that it would be immoral to kill the child to end your suffering, but should you be legally allowed to kill the child to end the suffering?

Scenario two (a less extreme scenario): Suppose Jim's wife, Stacy, is dying from kidney failure. Jim breaks in to a hospital and scours medical records, finding that you are a match for his wife. Unbeknownst to Stacy, Jim approaches Dr. Moreau (that rapscallion), and together they hatch a plan to drug you and strap you into a bed. While you are unconscious, Dr. Moreau operates on you and removes your kidney, then sews you up. He then implants your healthy kidney into Stacy's body, thereby saving her life. Later, you wake up and discover the ruse. If you go to court to demand your kidney be returned, should the courts have the legal power to remove the kidney from Stacy, thereby killing her, and return it to your body? [2]

If you don't think that one or both of these situations should be legally allowed, then I don't see how bodily rights can allow the legal death of the child in utero in the case of rape.

It seems to me that these situations are enough to show that abortions in the case of rape should not be legally permissible. As I indicated in the introduction, I commend anyone who takes a reasoned approach to the pro-life issue, and I felt that I could not do any less in my response to this issue.

[1] Frank Beckwith makes this point in his book Defending Life.
[2] This scenario was inspired by commenter Michelle Ewing, who commented on my recent article about bodily rights, and that a more accurate representation of bodily rights involves an organ donation already having taken place, not considering whether or not to force an organ donation.