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What Proponents of the "Rape Exception" Teach Us About Abortion


Wednesday, Jul. 11, 2007

Many people who describe themselves as "pro-life" support an exception to a flat-out ban on abortion, for cases of rape. Senator John McCain, for example, has expressed opposition to Roe v. Wade but has also defended the legitimacy of a rape exception to any abortion prohibition. Congress as a whole apparently holds a version of this view because Medicaid rules deny federal funding for abortion generally but contain an exception for pregnancies resulting from rape or incest. And such exceptions appear as well in a majority of states' funding regulations.

At one level, of course, support for an exception to a rule is hardly surprising. A rule can contain exceptions for circumstances that fall outside the justification for the rule, or exceptions can reflect values that compete with those underlying the rule.

To know whether an exception to a given rule is warranted might seem to require one to know the rule's purpose. Sometimes, however, we can work backwards and discern the point of a rule from the exceptions it carries. Understanding the rationale for the rape exception favored by many abortion opponents can help us to understand why they oppose abortion in the first place.

In this column, I will consider some theories of abortion that might underlie support for a rape exception.

The Simpler, "Life of the Mother" Exception

A less challenging abortion exception, one with which the pro-life community feels quite comfortable, is that protecting the life of the mother. Even Ann Coulter recently (and inaccurately) asserted, in the process of mocking Hillary Clinton, that no one actually believes in prohibiting an abortion that a mother's survival requires. And the recently-upheld federal law banning so-called "partial-birth abortion" provides that, in cases in which a pregnant woman will die if she does not undergo the prohibited procedure, the criminal prohibition does not apply.

The "life of the mother" exception - while not universally embraced - is easy to understand. One can take the position that a "person" (with all accompanying rights) exists from the moment of conception and that abortion is generally no different from murder. In a case in which continuing a pregnancy threatens a mother's life, however, one who holds that position could identify a self-defense dilemma. When it is impossible to save the lives of both human beings in question, one could choose to save the person whose existence is threatened by the other. As in the case of a child about to shoot his mother, it does not deny the interests of the child as a full person to recognize the mother's right to defend herself from what is tantamount to a life-threatening attack.

If one finds disturbing the analogy between a life-threatening pregnancy - for which the fetus is obviously not criminally responsible - and a child pointing a gun at his mother, substitute the triage scenario: Continuing a pregnancy threatens the life of the mother; termination of the pregnancy threatens the life of the child. The law may allow the mother to choose whether to direct the doctors to save her life or that of her child, without in any way denying or devaluing the child's personhood.

The Rape Exception

The rape exception is different, however. If one believes that an embryo is a full person and that an abortion is no different from killing a born child, then justifying the rape exception is much more challenging than justifying the "life of the mother" exception.

Take, for example, the case of a baby born of a woman victimized by rape nine months earlier. Assume that the woman had hoped her pregnancy was the product of consensual sex with her husband but learned, when she saw the baby emerge, that her husband could not possibly have been the father. Perhaps she and her husband both have blue eyes, and the baby has brown eyes, like her rapist. There is surely no "rape exception" (nor, I imagine, would anyone want there to be) for infanticide in such a case. Neither the mother, nor anyone else, has a right to take the life of a child because he or she was originally conceived in rape.

Now remember that if you are pro-life, you think that there is generally no meaningful distinction between killing a fetus and killing an infant. And because you certainly would not allow a rape exception to infanticide prohibitions, why would you favor a rape exception to a general abortion prohibition?

The rape exception - unlike the "life of the mother" exception - thus inescapably treats abortion as morally and legally distinct from the killing of a (born) baby. It does so by holding that the abortion is permissible in a pregnancy resulting from rape, while infanticide is not.

Rationale: An Embryo Is Not A Person

One could treat abortion as distinct from infanticide, as pro-choice people do, on one or both of two distinct grounds. First, one could take the position that abortion kills an entity that is something less than a full person. The earlier in pregnancy an abortion occurs, the greater the appeal of this position for many.

To take an extreme example, the "morning-after pill," which most people view as emergency contraception (rather than as a form of abortion), can - at least potentially - prevent an already-formed embryo from implanting inside a woman's uterus, thereby effectively "killing" the embryo. Nonetheless, people tend to have far less of a problem with the use of the morning-after pill than they do with a late, second-trimester abortion.

Since a woman who has been raped will generally know this fact immediately after its occurrence, the rape exception will typically apply early in any resulting pregnancy, when the embryo's "personhood" is most subject to question. It may therefore be this status-of-the-embryo intuition - that killing an embryo is different from (and not as bad as) killing a person - that drives much of the support for the rape exception.

This approach may explain why so many people embrace the notion that a rape victim should have access to abortion. The difficulty, however, in attributing this view to people who subscribe to a "pro-life" perspective is that many (perhaps most or nearly all), people who consider themselves "pro-life" take the position that at the moment when a sperm and egg merge to form a zygote, a person's life has begun. But then wouldn't it follow that even an early abortion (of the sort that a rape exception might contemplate) would still represent the killing of a full human being?

If so, what explains support, among those who consider themselves "pro-life," for a rape exception to a ban on abortion?

Another Possible Rationale: Justifiable Inaction

A second possible ground for distinguishing abortion from infanticide does not rely on the status of the fetus. Even if you view a fetus or embryo as "equal" in value to a born baby, you might consider something about the act of abortion to be morally distinct from the act of infanticide. But what?

As I discuss in my book, When Sex Counts: Making Babies and Making Law, abortion, prior to viability, consists primarily of terminating a pregnancy, rather than of killing an embryo or a fetus. Though this might seem like a distinction without a difference, since both occur, it is significant. Pregnancy is an active process whereby a woman transfers nutrients, oxygen, and other life-sustaining material from her own body to that of her developing child.

Understood in this way, the termination of a pregnancy is the refusal to continue the intimate transfer of life-sustaining material, rather than an affirmative act of aggression against an embryo or a fetus. Even if the mother, for example, were simply to "give birth" to her child prior to viability, because she did not want her body to be occupied by another being, this would inevitably cause the child to die. For some who support abortion choice, it is accordingly the end of her own condition of pregnancy rather than the (inevitable) resulting death of the embryo, fetus, or child that a pregnant woman has the right to procure. If it were possible to terminate a pregnancy while simultaneously allowing the child to live, debates over reproductive rights would likely take a very different form from that which they take today.

Assume now that recognition of a woman's right to bodily integrity - even against the needs of a full person occupying the inside of her body - is the rationale for the rape exception. This is consistent with a view of the fetus or embryo as a full person. However, one might legitimately ask of someone who holds this position, "Why just in the case of rape?" That is, if a woman has no obligation to continue providing intimate support to another person inside her body against her will, then what difference does it make whether conception occurred during rape or during consensual sex? Shouldn't she have a right to bodily integrity against an unwanted internal occupant either way?

The response that pro-life supporters of the rape exception might give is that consensual sex is consent to pregnancy. Once you have "agreed" to allow a person to live inside your body, by having intercourse, you have undertaken an obligation that converts the "inaction" of refusing to continue such intimate nurturance into the "action" of homicide. That is, our law treats action as distinct from inaction only so long as the "in-actor" has no duty to care for the victim of her inaction. For a parent, for example, to refuse to feed his child after bringing her home and undertaking responsibility for her care, and thereby to cause the child's death, is the legal equivalent of actively killing that child.

On the pro-life view that personhood begins at conception, then, a woman who voluntarily engages in sexual intercourse has consensually taken on the responsibility to care for the resulting child living inside her body. If sex is nonconsensual, then this responsibility does not necessarily follow.

One weakness of this view is that far from guaranteeing conception, most sexual intercourse does not result in pregnancy. A woman is only capable of becoming pregnant for a few days of each month, even if neither she nor her sexual partner uses contraception. Most of the time, in other words, it would be inaccurate - as an empirical matter - to describe sexual intercourse as a voluntary undertaking of pregnancy. It is, at best, an undertaking of the risk of pregnancy.

Once it is only a risk of pregnancy that one is undertaking, the analogy to a parent bringing a child home from the hospital and then refusing to feed him becomes less compelling. For this reason, the line between consensual sex and rape - as a key to distinguishing when to recognize a right to abortion - becomes less clear. If a woman is capable of conceiving, then she is at risk for pregnancy. If she has consensual sex, she may conceive. If she is raped, she may conceive. To guarantee that she will never find herself in a position in which she must either provide intimate care to a developing fetus or terminate a pregnancy, she must disable her reproductive system. Absent this extreme step, every woman "risks" pregnancy simply by existing and therefore, upon conceiving, could be said to have "consented" to be occupied by an embryo or fetus.

Consensual sex is ordinarily, of course, much closer along the continuum to "inviting" pregnancy than is simply remaining fertile in a world where people are raped. For that reason, pro-life supporters of the rape exception might view their position as drawing an appropriate distinction between voluntary and involuntary pregnancy. The distinction is unstable, however, because one could take steps (like using several contraception methods) that would make a pregnancy from consensual sex just as unlikely - as a statistical matter - as it would be in the case of a rape of an ovulating woman not using contraception. Would supporters of the rape exception, in that case, support a "use-of-effective-contraception" exception as well?

I suspect that the answer is no (and have heard no such proposals from pro-life circles). This raises once again the question of what - if not exposure of oneself to the risk of pregnancy - makes abortion by a rape victim different from abortion by other pregnant women?

The answer may lie in the view of sexual intercourse as a sin that carries its own punishment: pregnancy and labor. If a woman is raped, perhaps she cannot be blamed for her sin and therefore should not have to undergo the ordinary punishment of pregnancy and labor. On this approach, one can undergo sterilization (or believe that one has undergone sterilization) and still be compelled to carry a pregnancy to term after consensually engaging in intercourse. The sin to be punished, on this theory, is not the risk of pregnancy but the act of sex, whether protected or not.

Such a view would explain why pro-life supporters of the rape exception do not typically emphasize the importance of contraception, one way or the other, despite its important implications for the risk undertaken by those who engage in consensual sex.

Caveat: Those Who Support a "Rape Exception" May Be More Compassionate, If Less Consistent

I do not mean to suggest here that John McCain or other pro-life individuals who support a rape exception necessarily view pregnancy as a punishment for consensual intercourse. Those who believe in a rape exception likely feel an admirable sense of compassion for rape victims that leads them not to want to compound such victims' suffering with compulsory pregnancy and labor, despite their pro-life commitments.

In contrast, the more "consistent" abortion opponents who would force a rape victim to remain pregnant are hardly deserving of praise for their indifference to the needs and wishes of rape victims.

It is useful, however, to examine the foundations for the various "exceptions" that abortion opponents may be willing to recognize. To do so exposes the instability of the rape exception as a defensible approach for those who believe that a zygote is morally no different from a newborn baby, and that a pregnancy is inherently a voluntarily-undertaken relationship between a woman and a child.

That the most coherent account of the rape exception - as a defense for the sin of intercourse - relies heavily on a punitive and religiously-tinged view of sex should give us all pause. And that includes those abortion opponents who believe that they have identified a principled compromise position.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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