Part 4

Abortion in the Case of Rape: Moral and Prudential Considerations

Lynn D. Wardle

I agree with Todd Bindig that abortion usually exacerbates the harm of rape for the pregnant rape victim. I also agree that it is generally immoral to abort an unborn child because her father was a rapist. Adoption certainly provides a wonderful and preferable option for the pregnant rape victim in most cases when the pregnant rape victim needs and wants to avoid parenthood.

However, there are some significant moral and prudential justifications for allowing abortion in some cases of rape. There are countervailing moral considerations that in rare cases may override the moral and social interest in protecting the life of an unborn child.

Rape-Caused Pregnancy Can Do Harm

First, respecting the moral dilemma forced involuntarily upon a pregnant rape victim is not an insignificant moral consideration. It should not be dismissed or considered lightly. The right to act in self-preservation is a right of natural law. (Self-defense is still a valid defense in many contexts in the criminal law.) In some cases, the pregnant rape victim may fall into the self-preservation category.

Second, while I agree that in most cases abortion would increase the harm done to the pregnant rape victim, I recognize that there are some cases—they appear to be only a small number of cases—in which abortion could significantly reduce the harm done to the pregnant rape victim. Bindig tacitly concedes that such rare situations may or do exist. Those exceptional situations must be addressed in the law. The law should provide exceptions to deal with exceptional cases.

Third, denial of abortion in the exceptional case when continuation of pregnancy would significantly increase the injury to the pregnant rape victim perpetuates the aggression of the rapist—double victimization. It forces the woman to be complicit in the act of aggression against her. Surely, her dilemma between continuing the act of aggression against herself or passing it along to the unborn child she is carrying as a result of the rape is very profound. Unlike less compelling moral conflicts, such a great, serious moral dilemma may justify a shift of the locus of the decision-making from society to the most poignantly and dangerously affected party, especially in cases in which (as noted below) the mores of society strongly support the morality of the exceptional abortion.

Fourth, respect for rights of conscience in coping with profound and deeply significant dilemmas may justify abortion in the rare case. Our composite and diverse society recognizes the importance of matters of conscience in such founding documents as the Bill of Rights. When the moral dilemma is so very profound, and moral perspectives about what is the right solution to the dilemma are so divided—as in the case of a pregnancy resulting from rape that is causing great harm and threatens to cause increasing and grave injury to the pregnant victim—the best solution may be to defer to the conscience of the victim.

Practical Pro-Life Wisdom

One additional category of justifications for legal abortion in the case of rape relates to what Princeton Professor of Jurisprudence Robert George calls the “poorly understood, largely neglected and desperately need virtue” of prudence.[1] “Prudence is practical wisdom.”[2] As longtime pro-life legal advocate Clarke Forsythe argues, prudence recognizes that it is “moral … to achieve to partial good in politics and public policy when the ideal is not possible.”[3]

It is prudential to do as much as you realistically can to accomplish good and eliminate evil. It requires evaluation of the possible. It accepts the morality of the “ratchet approach” to moving social policy toward a desired goal, even if it takes only incremental steps to achieving that goal.

There is overwhelming popular support for permitting abortion in “hard cases,” such as when the pregnant woman has been the victim of rape. While nearly 25 percent of Americans believe that abortion should be legally permitted for any reason and nearly 20 percent believe that it should be illegal for any reason, the great majority of Americans—well over 50 percent (consistently 53–57 percent in Gallup polls since 2003) believe that abortion should be permitted only for certain (hard-case) reasons. Most Americans who take a pro-life position on abortion believe that abortion should be “permitted … in cases such as rape, incest and to save the woman’s life.” Gallup reported in 2003 that 72 percent of those polled believed that abortion should be legal in the first trimester when the pregnancy was caused by rape or incest, and 59 percent responded that abortion should be legal even in the third (last) trimester when the pregnancy was caused by rape or incest.

So the prudential position is to seek to reform the radical current regime—of Roe v. Wade, of abortion on demand for any reason—by proposing and supporting a rule that would allow abortion only for cases of rape, incest, or threat to the life of the mother. That appears to attract enough popular support to make it a politically feasible position and a threat to Roe. A purist might argue as a matter of philosophy that abortion when unnecessary to prevent the death of the mother is morally unacceptable. However, the purist must be asked whether insistence on perfection (all or nothing) in lawmaking is not immoral if it perpetuates and gives practical support to the status quo rule of abortion on demand—which allows at least 1.2 million abortions per year—and impedes adoption of a rule allowing abortions only in hard cases such as cases of rape, incest, or threat to the life of the mother, which would outlaw all but a small fraction of that number of abortions.

An Incremental Step

Finally, one of the most tragic consequences of Roe is that by constitutionalizing the issue and mandating legalization of abortion on demand (at least until viability), the Supreme Court effectively terminated the legislative discussion of options, solutions, and compromises to deal with the issue of abortion generally. The moral dimensions have been supplanted in constitutional discourse by claims about personal privacy, individual liberty, and undue burdens.

If the debate about Roe and abortion legality were refocused on the choice between abortion on demand and abortion in hard cases such as cases of rape, incest, or threat to the life of the mother, it would significantly change the demeanor of the public discourse. A proposal that abortion be prohibited generally, but allowed in cases of rape, incest and threat to maternal life, attracts significantly more support than the position of abortion on demand for any reason, which is the Roe constitutional mandate.

This proposal has the greatest potential to initiate a valuable redirection of the public discourse. Focusing public attention on that choice and those issues—rather than on the purist issue whether abortion should be allowed in cases of rape—could lead more quickly to a change in legal policy that would eliminate many unnecessary, elective abortions. That is the most prudent approach.

[2] Ibid., 16.

[3] Ibid., 11.

The discussion continues …