Should Mitt Romney (or Others Who are Pro-Life) Support Rape and Incest Exceptions to Abortion Bans?

by Glenn Cohen 

As America’s attention focused on the Republican Convention and the Obama campaign tries to portray a “Republican War on Women” at the Democratic one, last week Mitt Romney tried to clarify his position on abortion, namely: while he is generally against abortion, he would make an exception for cases where the mother has been raped or is the victim of incest. While politically savvy, based on other beliefs Mitt Romney has, this position is hard to defend if not incoherent.  Here is why: 

Mitt Romney, like most people who would outlaw abortion, must subscribe to two core beliefs: (1) Fetuses are persons and get the full panoply of the rights of persons from early on in their development (for Romney, like many, at “conception”), or at least possess a right not to be killed. (2) The mother’s interest in protecting her bodily integrity, making important reproductive or life choices, etc, does not outweigh the fetus’ right not to be killed. This is why Romney and other pro-lifers would prefer that abortion be banned even in the first trimester.

This logic is not incompatible with exception for the health or life of the mother. Through the well-known doctrine of self-defense, the criminal law has long recognized that an individual may be justified in killing to protect his or her own life, or possibly health, and these exceptions merely reflect a similar view as to fetuses.

The rape and incest exceptions, though, are on a different footing entirely.

In general, the criminal law permits self-defense only to prevent serious injuries or threats of death, and even then only when one is immediate danger and where the force used in self-defense is proportional to the threat. Even if we were to recognize rape or incest as involving the kind of serious injury the law has in mind (some forms of each might qualify, others might not), the act of self-defense is not aimed at preventing the rape or incest. That  harm has already occurred once the woman is pregnant and allowing the killing of the fetus will do nothing to stop it.

Instead, for someone who is pro-life (including Romney) the rape and incest exceptions must represent a view that there are permissible and impermissible reasons to want to kill a fetus, and that the permissible ones are connected to the fact that the pregnancy arose out of rape or incest.

Notice that when properly understood many who are pro-life should have trouble with this claim. Are there really any good reasons to kill a fetus? Perhaps it is the fact that the fetus and its pregnancy are constant reminders of the trauma of rape and incest, a different kind of harm? But that would seem to punish the innocent fetus for the crimes of its guilty father, which seems wrong. This particular fetus is no more at fault than the fetus that results from consensual sex, so why should it alone be subject to killing?

Moreover, if, a pro-life individuals believe fetuses are full persons from the moment of conception and abortion is murder, then it is not altogether obvious why the privilege to terminate a fetus due to its connection to rape or incest should not extend to children after they are born as well, such that infanticide is equally permissible on this ground. Perhaps one can argue that killing infants, even though just as much persons as fetuses, engenders more moral confusion, but that seems a bit ad hoc.

Finally, notice that if the regret, relived trauma, etc, of women who are the victims of rape or incest is sufficient to give them a prerogative to kill a fetus, limiting the exception to rape and incest is underinclusive. To give just one example, raising a profoundly disabled child might be thought to also impose significant costs on mothers over their lifetime. To be sure this is a very different kind of set back of interests, but at least for some mothers may have just as large an effect on their welfare. Yet pro-life individuals are firmly against the abortion of such children. Moreover, one argument sometimes offered as a salve to the trauma of unwanted children – the ability to put children up for adoption – is equally available for the children of rape and incest, so it is not clear why it should be sufficient in this instance but not the others.

Therefore, based on what Mitt Romney has said, it seems inconsistent for him to want to make an exception for rape and incest exception.

Are there ways of being pro-life and avoiding that conclusion? Possibly. Perhaps one might argue that a woman’s reproductive autonomy counts for quite a lot and is just barely outweighed by the life of the fetus as a moral value in ordinary circumstances, but in the rape and incest exception the added trauma to the mother justifies a different balance. This approach would still have to explain why abortion is impermissible for the profoundly retarded child, and adopt a view that fetuses are not full persons to be able to distinguish the killing of infants. Would that work? Unclear. What is clear is that neither Romney nor most pro-life Republicans have championed those kinds of premises. Until they do, supporting a rape and incest exception, while politically palatable, appears hard to justify.

As an “argument from asymmetry,” as I like to call this kind of argument structure, notice that if there really is an inconsistency there is at least two possible solutions (and perhaps a third borrowed from Dan Kahan’s notion of “The Secret Ambition of Deterrence” just to leave well enough alone in the name of liberalism sometimes): (1) Outlaw abortion whether or not rape or incest is what gives rise to the pregnancy. (2) Outlaw no abortions (which those of us who are pro-choice would prefer). What is missing is the middle course urged by Gov. Romney.

Be Sociable, Share!

7 thoughts on “Should Mitt Romney (or Others Who are Pro-Life) Support Rape and Incest Exceptions to Abortion Bans?

  1. Hi Glenn – I agree with you as to the logical inconsistency of this middle course. But without wading into my own views on the abortion question and possible exceptions, I just wanted to point you and our readers towards a really horrifying article from the New Yorker on the relived trauma issue: Andrew Solomon, The Legitimate Children of Rape, Aug. 29 – http://www.newyorker.com/online/blogs/newsdesk/2012/08/the-legitimate-children-of-rape.html

  2. Glenn, congratulations on co-founding this promising blog! And a great first post.

    Romney, if he were intellectually-nimble enough, might respond that Judith Thomson’s famous violinist analogy provides him with an escape hatch. As you will recall, Thomson’s “A Defense of Abortion” (in the first-ever issue of Philosophy and Public Affairs) argues that even if the fetus is a person, abortion can be legitimate. Thomson gives an analogy. Suppose you wake up one morning, surprised to discover that someone physically connected you to a famous violinist. If you leave bed over the ensuing 9 months, the violinist will die. Thomson points out that intuitively, it remains your right to leave bed. By analogy, she claims, a pregnant woman has a right to do as she pleases with her own body during the 9 months of pregnancy, including aborting her fetus. That remains the case even if the fetus—person or not—would die as a result. Conservatives like John Finnis answered Thomson that the analogy to the famous violinist is misleading. One reason why is that, in the analogy, others forced the physical connection on the violinist. It was not the woman’s choice. But many pregnancies are voluntary. In many non-rape, non-incest cases, women have no right aborting the fetus, these conservatives conclude. Romney could argue likewise, that pregnancies following rape and incest are clearly involuntary, and so, that Thomson’s argument applies; but that other pregnancies should be treated as voluntary, and abortion should be banned there. Would such a move work?

  3. Thanks Nir. I had thought a little about this and Finnis’ reply. My own sense is that drawing the line at voluntary nature of the pregnancy might be tricky, but that may just because I am more taken by Thomson than Finnis on this point. In particular, I am “pro a right to disconnect” in Thomson’s hypothetical for a large variety of variations short of rape, such as “sexual deception” (sometimes called rape by deception, for example the recent case in Israel involving a man posing as a single Jew who was in fact a married arab to bed a woman), extreme intoxication, etc, and thus would want to allow abortion in those cases as well. Incest is in some ways even harder than rape, I think, in that in some cases it involves a mix of love, curiosity, naivete, force, psychological parental pressure, rape etc, that muddies the water.
    The more I think about it, the more I think the right way to reimagine Romeny’s claim in Thomson’s hypothetical would be someone who said “I have no right to generally disconnect the violinist, but if it so happens that this particular violinist is one who raped me or committed incest with (on?) me I can disconnect HIM in particular because of how traumatic it will be for me to sustain his particular life.” Put as such, would we want to recognize a right to disconnect only in this narrow cases or would we feel pressure to eliminate that distinction or broaden it further to all trauma/regret/significant negative effects of welfare?

  4. The problem with justifying a rape exception based on the “voluntariness” of becoming gravid is that many pregnancies are accidental. They weren’t intending to get pregnant, so why hold them to the consequences? Similarly, what do you do about statutory rape where the sex is factually – but not legally – consensual? Or the simpleminded adult who doesn’t understand that sex leads to pregnancy?

    There’s another plausible logically consistent justification for supporting a rape and/or incest exception, though, and that’s political feasability. If an abortion ban with a rape/incest exception can be accomplished politically at this time, is that not a rational compromise en route to a more complete ban? Slavery, for example, was done away with over a long period of time, several “baby” steps, and many compromises.

  5. Thanks Tom. I totally agree on the feasibility point, and a similar idea that might be put more in Kahan’s terms referenced above about compromises that keep the peace. But let met put the argument in slightly darker tones: “while the incest/rape exception is incoherent/unjustifiable, we will try to dupe swing voters by incorporating it and thereby avoid forcing them to be reflective about their views on abortion and why they hold them.” What you think about my more sinister reformulation will depend on deeper views you might hold on deliberation and democracy. Consider this blog post an attempt to suggest the emperor has no clothes, as against those who want to manipulate the masses (ok, even I thought that sounded too grandiose! ;))

  6. Why proceed from the assumption that Romney’s position is an expression of his most desired state of affairs, rather than a feasible compromise. These people want abortions, those people want no abortions, so meet somewhere in the middle. How to find a convenient meeting point? Well, these ladies are going to be mad at not being able to get abortions, but the subset of them who were not raped or involuntarily incested to produce the pregnancy won’t be as mad as they would be if they had been, because they’ll have had a greater opp’ty to avoid pregnancy. The exception won’t affect a large number of abortions, but it’ll affect those who’d be most disappointed otherwise. And that’s pretty much how we make group decisions; they’re all about how badly you want something, and how many want it that badly.

    What affects the credibility of this analysis is how seriously to take the ability to influence policy on abortions politically at this time in the USA. We must assume that enough people think that existing judicial decisions will soon be subject to change, otherwise it makes no sense to argue about this as a political issue rather than on principle or personal values.

Comments are closed.