Probably the best weapon in the rhetorical arsenal of those who call themselves “pro-choice” on abortion is this question: “What about rape?” Would those who oppose abortion really forbid abortion even when the pregnancy is the result of rape—or incest? Would pro-lifers really torment a woman, already victimized by sexual violence or exploitation of the most horrible kind, by requiring her to carry a resulting pregnancy to term and give birth to the child?
The question is, no doubt, rhetorically effective—practically a show-stopper, a silencer. The situation presents the case for “freedom of choice” seemingly in its most favorable light and confronts the pro-life position with its seemingly worst set of facts (setting to one side the case of a pregnancy that genuinely threatens the mother’s life, which presents an entirely different set of issues and that nearly all concede as a valid exception). The rape hypothetical tends to put pro-lifers on their heels; most will give ground almost immediately, not wanting to appear unreasonable.
But I wonder if the rape question might not actually provide a fruitful context for advancing the pro-life position. I submit that the instinct to give ground here is precisely the wrong one. Instead, I submit that defenders of the right to life should agree to answer the what-about-rape question, straightforwardly and without equivocation, but only if the questioner will first answer one (or two) questions himself.
Here’s the turnaround hypothetical: Suppose, following a rape, the victim became pregnant and had the baby. But then, a year or two later—or three or four years later—the mother comes to despise the child because the child’s very life and presence reminds her, horribly, daily, painfully, of the awful experience of the rape. Should we permit the woman to terminate the life of the two-year-old or four-year-old child?
The answer, presumably, will be no—combined with a protest to the question, that it is unfair, or presents an entirely different situation from abortion.
The proponent of life ought then to be permitted a brief follow-up to ask exactly why a four-year-old’s life, resulting from rape, ought not be terminated, if his or her life greatly distresses the mother, or, if the objection has been raised, exactly why the situation of abortion is thought to be so decisively different. The pro-choice advocate’s answer, almost unavoidably, must be that a born child is different, because the child is now clearly an independent, living human being.
Precisely. So, the fact of a rape does not and should not make a difference, if the child is an independent, living human being (at least if the child has been born)? Is that right? So, it is birth as opposed to pregnancy—not the fact of rape—that makes the difference? How is this any different from the pro-choice advocate’s general argument for abortion rights? Rape might be an especially sympathetic case, and therefore rhetorically effective, but if the living human embryo or fetus really were an independent human life—like a born child—the fact that he or she was conceived as a result of rape or incest wouldn’t be a reason that we would credit for allowing the mother to kill the child, would it? If the answer is no, then it is not rape that makes the moral difference; it is the issue of the moral status of the living human embryo or fetus—isn’t that right? (Sorry, I tend to lapse into leading questions, an old lawyer’s cross-examination habit.)
At this point, the issue is joined where it properly should be joined: What is the moral status of the human embryo or fetus, gestating in the womb? The defender of life can, and should, then answer the original rape hypothetical this way: If the fetus or unborn child is an independent living human being, morally deserving to be treated as such, it should make no difference whether that fetus/unborn child was conceived by rape or incest. Come now and let us reason together on this question, on which all else in the abortion debate turns. And the proponent of the right to life is back on home ground. The fact of rape is irrelevant. Rape is tragic, awful, horrible, gut-wrenching—an unspeakable crime of great emotional harm—but rape is essentially irrelevant to the morality of abortion. The issue is the human status, or lack thereof, of the unborn child—whether he or she has a right to live, or may instead be killed for reasons society deems sufficient good cause or simply leaves to the mother’s unrestricted choice.
At bottom, most abortion proponents agree that the fact of rape is irrelevant. They do not really maintain that abortion should be permitted only in the cases of rape or incest; they are “pro-choice” on abortion generally. They are merely arguing the case of rape because they believe it puts pro-lifers in a difficult spot. And so, they will (if arguing honestly) actually tend to agree that it is not really the fact of rape that makes the difference to the overall pro-choice position.
If the pro-choice advocate continues to insist on pursuing the rape hypothetical, ask this question: Is it your view that whether or not abortion should be permitted should depend on the reasons for which the pregnant woman desires abortion? If the answer is no (as is probable—committed pro-choice ideologues do not want to fall into the obvious trap of a “yes” answer), then, again, the point is made: the rape hypothetical is really beside the point, isn’t it?
If the answer is yes, that a woman’s reasons for abortion matter, ask if abortion should be permitted for purposes of sex-selection. In other words, should abortion be permitted because the child to be born is a girl? What about abortion for purposes of spiting a boyfriend or a husband, or the pregnant woman’s parents? What about abortion because having a child would interfere with college studies or career ambitions? Again, this tends to return the abortion argument to home turf for pro-lifers. Shockingly, under the Supreme Court’s abortion-law doctrine, none of these reasons can supply a basis for restricting the right to abortion. Does the pro-choice advocate really embrace that extreme position?
If the nominally “pro-choice” person repudiates abortion as illegitimate in all of these situations, welcome her as a pro-life friend, for she really is pro-life, but simply so repulsed by rape, and so sympathetic to the plight of the rape victim, as to have lost sight temporarily of her fundamentally correct pro-life instincts.
The reality of course is that some people—perhaps most people—simply have not thought through the issue. Most Americans oppose most reasons for most abortions. But many find themselves persuaded by the rape hypothetical, for understandable emotional reasons. They thus might call themselves “pro-choice” precisely because of the “hard cases.” This, I suspect, is in part why pro-choice ideologues like the rape hypothetical so much.
But the case of rape can help produce clear-headed thinking. Most fair-minded people, if forced to think carefully—and if they are willing and able to do so—will realize that their position ultimately depends on whether a conceived, unborn child in the womb is morally worthy of protection, regardless of how his or her life came to be.
What confuses the issue, for some, is unclear thinking about the period of pregnancy specifically. If the unborn child, conceived as a result of rape, magically could be removed from his or her mother’s womb—and live—surely no one would say that the trauma of rape should permit murdering the child; that would be exactly the same situation as killing the hypothetical four-year-old who was conceived by rape. Rather, it is the burden of being pregnant, and of having to bear a child so conceived, that often drives the instinct to allow abortion in cases of rape.
What lies behind this instinctive reaction, however, is the almost subliminal suggestion that pregnancy is some kind of just “punishment” for sex—a backward, twisted notion to be sure, but one that regrettably still retains some currency. On this view, abortion should be permitted where pregnancy is not the woman’s “fault.” The woman did not violate any rules; rather she was the one violated. Thus, it would be wrong—unfair—to put her in the pregnancy penalty box.
Such latent pregnancy-as-punishment premises should be exposed and confronted. Most people, pressed on the point, will quickly disclaim or abandon any suggestion that abortion-for-rape is justifiable because of the woman’s innocence of the sexual act, and not otherwise. They will, rather, repair to the psychological torment of having to endure a rape-induced pregnancy and bear a child conceived in rape.
But that torment does not come from the fact of pregnancy itself. Pregnancy imposes burdens on mothers, in all situations. What distinguishes the case of rape is the unique psychological burden and humiliation owing to the circumstances that led to the pregnancy. That burden is real and undeniable. But that is exactly the type of psychic harm that we presumably would never allow to justify killing a born child simply because of the circumstances under which he or she was conceived. This returns the argument to the original set of questions. If we would not allow even real, serious psychological or emotional trauma to justify killing a toddler because of the circumstances under which he or she was conceived, we should not allow it to justify killing an unborn child for the same reason, unless the unborn child lacks equivalent moral status as a member of the human community. We would not allow killing for such a reason unless the living human fetus had no human “right” to continue to live in the first place.
That, in the end, is the point over which the debate needs to be conducted. If the human embryo is a mere morally irrelevant mass of cells, inconveniently present in a woman’s body, the pro-choice position is self-evidently correct. Abortion is no different from clipping a fingernail, and presents not the slightest moral question. One need not appeal to the situation of rape, or possess any justification at all, in order to engage in abortion. But if the human embryo is a separate, living human being—a human life distinct from the mother’s, even if a life that depends on the mother for survival—the pro-life position is correct. The human fetus cannot be killed simply because he or she is unwanted, despised, regretted, or deeply upsetting. Short of the situation where pregnancy presents a true threat to the life of the mother, abortion is morally unjustifiable.
Politically, of course, the case of rape is not the right starting point. Rhetorically, it’s the point where abortion-rights supporters want to start. (As I’ve argued elsewhere, my preferred starting point is a ban on sex-selective abortion, for analogous reasons: it puts the “pro-choice” argument in its weakest rhetorical posture, explodes the premises of those who argue that abortion is justified on “women’s equality” grounds, and persuasively confronts people with the inescapable humanity of the unborn child—it’s a girl, or a boy: the fetus has a sex identity of its own, and is obviously a separate human life from the mother.)
But I believe it is important to confront and refute the “what-about-rape?” argument on essentially its own terms and, jujitsu-like, use its own weight and momentum against it, flipping the hypothetical in a pro-life direction: Could one kill a four-year-old conceived in rape, because he or she was conceived in rape? Why not? If not, on what, then, does the morality of legal abortion—in any situation—really depend?
Come then, and let us reason together on that question.
Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).