Abortion Exceptions

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Pro-life blogs has two recent posts about the common position among those who call themselves pro-life that there should be some exceptions to laws against abortion. Jill Stanek wonders if it's just an inconsistent position, and the commenters seem by and large to think it is. Then Tim complains about President Bush's apparent endorsement of such exceptions. Those arguing against the exceptions point out that the moral status of a fetus isn't any different because of the circumstance of the conception, and this is of course true. But I'm not sure they've grasped the reason many people who are pro-life think there should be exceptions for these kinds of cases.

I don't think the justification for the rape exception is that the child is less innocent or that it's less wrong of an action if rape is the cause of the pregnancy. The justification of the exception is supposed to be that someone who has been through such an experience needs to be given some moral deference by those who haven't been through such a situation. I don't think it's supposed to justify the action or even excuse it. It's that blaming and punishing may be less morally justified in such cases, and thus the law is going to reflect a less severe attitude toward the crime in those circumstances (given an abortion ban). I'm not saying I agree with this position (see below the fold for why). I'm just trying to make sure it's presented fairly. I really don't think most people who are pro-life but want this exception are seeing it the way the critics commenting on those posts are treating it.

I do think there's still a good argument against this view. The point seems to be that you shouldn't hold women who have been raped responsible for wanting an abortion. Even granting the moral deference point, I don't see how it can justify making abortion legal in rape cases, however. After all, the government has a responsibility to protect the fetus from those who would seek to harm it, even if the ones doing it have to be given moral deference and thus not be held responsible for what they seek to do. So there are two considerations at work, and the best laws on the matter would then need to account for both. Can that be done? Absolutely. You can make the action illegal with severe criminal penalties for anyone willing to perform an abortion in these circumstances while not holding the women responsible if it occurs (or perhaps having some criminal penalty but not a severe one). That seems to me to satisfy the moral deference claim while also allowing the government to protect its people.

The incest exception is very different. I don't think anything justifies that, unless the pro-life view is just wrong to begin with. If it's rape within a family, then it falls under the category of rape. Those who already have an exception for rape do not need to add incest to the list of exceptions if the only cases of incest they care about also happen to be cases of rape. So why is incest added as a separate exception? It must be that these pro-life people wnt abortion exceptions for cases of adult, consensual incest, e.g. two cousins both over 18 or a brother or sister both over 18. I can't really see why there should be an abortion exception for that, though, even if we have one for rape. If we're going to allow abortion for severe genetic defects, then maybe we could allow it here too, because incest in immediate family relations tends to produce such defects, but we're talking about pro-life people here who don't think we should allow abortion just because your child is likely to have Down's Syndrome or something. If you don't allow that, then why allow an incest exception? So I think those complaining about incest exceptions have something really worrisome to complain about. As far as I can tell, the standard pro-life view does not allow an exception for incest, and those who want one seem to me to be just confused.

What about the life of the mother? That seems to me to be the exception with the most going for it. There are real moral considerations that come into play when you have a pregnant woman who knows she will die unless she has an abortion, particularly if the child won't survive either way. It seems to many pro-life people that an abortion will allow at least one of them to live when otherwise both will die. This is akin to separating conjoined twins who will both die without the separation, when the separation will almost certainly cause one to die. People disagree on what moral principles come into play here, but it seems to me to be consistent with a pro-life view that it's ok to kill a fetus in these cases. This is particularly poignant in cases of a single mother without any nearby family to care for her other children who gets into a life-or-death situation in a pregnancy. She might think it's important enough to seek to remain alive for the sake of her other children, even if it means doing something (e.g. removing the fetus) that risks or even guarantees the death of the fetus. But Thomas Aquinas would argue that in a case where the death of the fetus isn't the goal (it's survival of the mother) and isn't the means to the end (the means is the removal of the fetus, not its death), then it's ok to do it. This is his Law of Double Effect, which is endorsed as far as I can tell by most Catholics today.

That doesn't mean pro-life people should necessarily hold such a view, because different moral theories will answer the question in different ways, and the right answer depends on which theory is correct. Aquinas' view may not be the right one (and it doesn't allow abortion in every life-or-death case for the mother, just ones where removal of the fetus is possiible and would save the mother's life). Different moral theories that allow more deliberate harm to an innocent to save a life would be required for cases of earlier abortion. But a pro-life theory isn't an absolutist claim that it's always wrong to kill. It's a claim that it's generally wrong to kill and thus generally wrong to have or perform an abortion. A number of different theories might be consistent with the general pro-life position. The question here is not what the correct moral theory to justify a pro-life position is. It's merely whether it's consistent to hold to a pro-life position and allow exceptions such as these. So I want to leave it open for the sake of this post which moral theory might be correct. One might oppose abortion in general on the ground that it's generally wrong to take an innocent life, all the while thinking some cases of taking an innocent life to save another innocent life might sometimes be ok. I imagine that any objection to this will depend on a particular moral theory that not all pro-lifers will grant.

So I can't wholeheartedly join the commenters opposing the exceptions whole hog. I think the rape exception is faulty, but I don't think it's as easy as to explain why as the commenters on the posts I linked to above want it to be. I do think the incest exception is untenable, and I think it's obviously so once you think about it. I don't understand why anyone holds to that exception. But the life of the mother exception is a serious moral issue, and I think it's patently unfair to accuse someone of not being pro-life simply because they hold such a view. You might accuse them of not being absolutists against doing something knowingly that will result in the death of an innocent, but I think they would admit that they're not absolutists if they admit that there are exceptions. But not being absolutists doesn't mean you're not pro-life. Being pro-life is being generally opposed to abortion, not being absolutely opposed to it, and moral considerations might lead someone to be generally opposed to it while allowing some exceptions, particularly in these life-or-death cases. I'm sure a good number of pro-life people would think it's ok to perform an abortion if the survival of the child would lead to a massive infection from a new virus that would very quickly wipe out the world's population. I don't think that means being pro-life, since it's life that motivates the view to begin with. It's just not being absolutist about abortion, and that's perfectly consistent with being pro-life.

7 Comments

Jeremy, I think there is also a second possible justification for the rape exception (I don't believe this, but I think it's a coherent view). One might claim that the reason that the pro-choice position is wrong and the mother does not have the right to expel the fetus from her body is that by engaging in consensual sex (even if using birth control) she accepted the possibility of the fetus's presence in her womb, and thereby took on moral responsibility for its well-being, just as someone who invites a homeless man into his home during a blizzard (you and I have discussed this example before) might, on certain coherent moral theories, gain a certain degree of moral responsibility for him. However, in the rape case, the mother does not voluntarily undertake the risk of becoming pregnant, and so may not be morally obligated to allow the fetus the use of her body. Of course, this would not justify an abortion which involved the active killing of the fetus, but it would justify someting like, for example, the "morning-after" pill where the fetus is not actively harmed but merely expelled with the prior knowledge that harm will come to it if expelled. This is just like saying that you have the right to expel a man from your house in a blizzard, even if he will die, provided you haven't agreed to give him the use of your house.

The problem, of course, is that no one (or almost no one) thinks you have the right to expose a baby to a blizzard simply because you haven't agreed to give it the use of your house. Somehow the baby, who, I suppose, is more helpless than the adult, seems to be a different case. That makes this a difficult position to hold, but I think it is at least logically coherent, and there is some intuitive merit to the suggestion that the woman who has sex consensually agrees to give the (potential) fetus the use of her body in a way that a woman who is raped does not.

Yes, that's a good point. That's a coherent view that's largely going to be pro-life. It doesn't allow exceptions for genetic disorders and so on, but it does allow rape. It's still pro-life in the sense that it takes the value of life to be positive even if quality of life would lead those who aren't pro-life to kill. Some people, for instance, think it's ok to put a baby out in a blizzard because its quality of life would otherwise be terrible, but that's not a pro-life view. This is pro-life in a sense that that view isn't.

I'm not sure it's robustly pro-life, however. I don't take the name 'pro-life' to refer simply to the opposition to abortion. One can be pro-life but think abortion is ok in certain cases (as I explained above), and one can be opposed to abortion without being pro-life, perhaps because one thinks it leads to bad consequences for how we treat adults and born children to have such a policy, all without thinking there's anything special and inherently worth preserving about fetal life.

What I mean by 'pro-life' is the view that we have a duty to preserve human life unless other moral considerations lead us to conclude that we ought to kill (e.g. capital punishment, to save another life that for some reason has a stronger moral reason for our preserving, or to save enough lives that it makes it ok to take a life). I don't think the libertarian justification for allowing abortion in rape cases is pro-life in that sense. It takes property rights to outweigh the duty to preserve human life in the same way that quality of life outweighs the value of life in the standard pro-choice argument for abortion in genetic disorder cases. I'm not as inclined to call that a pro-life view, because I think a robustly pro-life view takes the value of life to be more important than mere property rights or quality of life issues. One thing that especially makes me resist calling such a view pro-life is that the primary justification for legalizing abortion in Roe v. Wade was exactly for reasons related to considering one's body private property that outweighs the duty to preserve human life.

I agree with you that virtually no one thinks it's ok to put a baby out in a blizzard simply because it doesn't have your permission to be in your house, though I have seen people say they think it's ok. I'm not sure they really believe that, though, at least if they're not sociopathic. So I'm not sure I'd call this view pro-life, and I don't think anyone really holds it, but I do think it's a coherent view that isn't the standard pro-choice view. It results in exactly the view the prolifeblogs readers were saying is incoherent. Abortion is generally wrong but ok in cases of rape.

One other thing worth mentioning is the contraception issue. The view we've been discussing could go either way on that. It might take someone to have done her best to prevent pregnancy, and if it results then it's ok to have an abortion. This is Judith Jarvis Thomson's view, for instance. She thinks it's much less clear that abortion would be permissible in cases when contraception wasn't used, and this view would take it to be simply impermissible. If that's how the view would develop, then it would seem to many people to be less pro-life, though in this case it's the same moral consideration that allows the exception as what occurs in the rape case.

Someone need not take this conclusion, of course, because it's easy to see engagement in an action that makes it possible to conceive as a willingness to accept the consequences of that action if the unlikely event occurs. If you play Russian roulette with a 100-chamber gun, and you happen to land on the one chamber with the bullet, I think it's fair to say you committed suicide. If you put a drug on the market that can kill 1% of people who take it, and only one person buys it and then dies, you are morally responsible for that death. If you use a condom that's 99% effective and conceive, are you not then morally responsible for engaging in an action that brought on conception and thus not absolved the way someone who is raped is?

On the rape argument: A long time friend of mine was raped when she was 12 and had a child as a result when she was 13. The child was adopted and she never heard from him or the family, but she always said that aborting the child would not have undone the harm the rape did. (Six years ago she was contacted by her son and they have a good relationship. Not only that, but the adoptive parents had made duplicate photo albums of every picture they took - to give to their son's "bio-mom" when and if he wanted to find her).

On "life of the mother" - that's a harder call. If you saw an auto accident and could only save one person, would you be responsible for the death of the other?

Or, if you were in an accident and could save yourself, but would not be able to get your baby from the back seat, would that be murder?

Jeremy, there are, of course, more robust versions of pro-life libertarianism, as for instance here. Premise 4 of their argument says "A prenatal child has the right to be in the mother's body. Parents have no right to evict their children from the crib or from the womb and let them die. Instead both parents, the father as well as the mother, owe them support and protection from harm." Of course, the details for how the child acquires that right on a libertarian view, since libertarians do not believe in positive rights, will necessarily involve the parents somehow voluntarily taking such a moral obligation upon themselves, otherwise this would not be a truly libertarian view. Alternatively, I suppose they could claim that there are cases when evicting someone from your private property constituted an aggression against that person, and hence a violation of his negative rights. For instance, you might say that if a person comes to be on your property through no fault of his own, you may not forcibly evict him if such eviction will cause physical harm to him (instead, if you wish to evict him, you must find a way of doing so without harming him - which in the pregnancy case would probably mean carrying the baby to term and then giving it up for adoption).

Jeremy, I'm getting "throttled" trying to trackback this post, but I've posted some further discussion here.

The issue either has to be about the fetus or about the woman's individual rights. If a fetus has rights to be protected, then they have to be protected under ALL circumstances; it's a life.

If a woman has a right to terminate a pregnancy then she has the right to terminate it up to the point the fetus can survive on it's own regardless of the circumstances.

It's about one or the other.

If a fetus has rights to be protected, then they have to be protected under ALL circumstances; it's a life.

Not true. Do I have an obligation to protect the lives of the thousands who die every day around the world? Does the police have an obligation to prevent my death if they had no reason to know the exact circumstances of when someone would try to kill me? More to the point, if a doctor has a choice of performing an operation on one of two people to save one life, is it wrong not to perform it on the one not chosen simply because it means allowing a death? If there's only enough time to perform one operation, then one of them has to die. So it's just not true that someone with a right to life has to be protected at all coses and under all circumstances.

If a woman has a right to terminate a pregnancy then she has the right to terminate it up to the point the fetus can survive on it's own regardless of the circumstances. If a woman has a right to terminate a pregnancy then she has the right to terminate it up to the point the fetus can survive on it's own regardless of the circumstances.

That certainly isn't true. Most of the more careful pro-choice justifications of abortion do not take it to be ok to kill a fetus no matter what. They tend to think certain circumstances justify it and others not. One reason for this is that most pro-choicers take the right to life to be something that gradually develops alongside complexity of factors as they develop in the brain and nervous system. If personhood comes in degrees, then so too does a right to life, and then it's much worse to kill a fetus that's about to be born than it is to kill one that's only a few weeks old.

It's about one or the other.

Either that, or it's one of the multitude of potential views in between the standard pro-life view and the most extreme pro-choice view that you think is the only other option besides the pro-life one. Given Judith Jarvis Thomson's defense of abortion even given a right to life and the paper by Don Marquis arguing that abortion is generally wrong even if fetuses are not persons, I think there's much more room for positions in between the two main extremes of political debate that we see popularly.

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