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March 12, 2006

Rape and abortion

Josh points to a fascinating 3-year longitudinal of rape and pregnancy in 4008 adult American women:

The national rape-related pregnancy rate is 5.0% per rape among victims of reproductive age (aged 12 to 45); among adult women an estimated 32,101 pregnancies result from rape each year. … A total 32.4% of these victims did not discover they were pregnant until they had already entered the second trimester; 32.2% opted to keep the infant whereas 50% underwent abortion and 5.9% placed the infant for adoption; an additional 11.8% had spontaneous abortion. [Holmes M, et al. 1996]

Fascinating statistics.

Anti-abortionists who support rape exemptions confuse me. They say fetuses have full human rights. Yet, clearly, in their minds, the life of the rape-fetus is less important than the emotional well-being of its mother. The unspoken assumption is that rape victim is innocent. According to the REs, the raped woman is entitled to kill that baby because she didn't put it there.

Anti-choice rape exemptionists (here after, REs) could save themselves from inconsistency by arguing that a woman's right to control her own body overrides the fetus's alleged right to life. But then they have to explain why rape gives women the right to kill babies. It doesn't seem fair to discriminate against fetus-Americans who were conceived by rape.

If you concede the personhood of fetuses, the only justification for a rape exemption is a very strong claim about a woman's right to control her own body. In a famous paper the pro-choice philosopher Judith Jarvis Thompson assumes the full human rights of fetuses for the sake of argument and goes on to make a very strong argument for the permissibility of abortion.* This is a radical view, even among pro-choicers. Normally we don't think that the right to bodily sovereignty entitles us to kill another person who is impinging intextricably upon your person but who is not directly threatening your life. However, Jarvis Thompson's argument proves too much for the REs. If you take such a strong view of a woman's right to control her body, it's hard to explain why it shouldn't extend to cases other than rape.

(You would think that REs would feel compelled to champion universal hormonal contraception. After all, woman's body is an attractive nuisance for fetuses. A woman never knows when she might get raped and be forced to kill an innocent person. On this view, an ethical woman should be fully dosed at all times in order to gird her uterus against innocent zygotes trying to come in front the cold. Otherwise, a woman who was off the pill at the time of her rape could be blamed for contributory negligence.)

In fact, most anti-choice REs don't seem very concerned about a woman's right to access contraception. In general, they seem to place a very low value on the right to bodily sovereignty in general (cf. the standard "pro-life" stances on Terri Schiavo, gay sex between consenting adults, access to contraception, etc.)

The anti-choice RE argument doesn't work because it requires radically strong views on autonomy in the rape case that don't carry over to any other type of pregnancy.

*Thompson doesn't say that the woman's right to control her own body simply overrides the fetus's right to life. Rather, she maintains that an innocent person's right to life doesn't include the right not to be killed if that person should inadvertently end up parasitizing another person's body against their will. Thanks to Clayton for pointing that out.

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Comments

Lindsay,

This is a minor point about Thomson interpretation. She does not think the right to life is overridden. She thinks that the right to life is not properly understood as the right to what is necessary to live or the right not to be killed. On her view, the right to life does not give you a reason (subject to overriding or not) to refrain from aborting in a variety of cases.

On her view the right to life is the right to not be deprived of what is necessary to live unjustly or the right not to be killed unjustly. In a variety of cases, she thinks that it would not be unjust to deprive the fetus the resources afforded by the pregnant woman and so the right to life does not on those occassions mean that the fetus' rights would be violated through abortion.

I take it that if we read Thomson as saying that the right to life could be overridden, she would have to say that the right to life would be relevant to the cases she's interested in and would have to say that comparatively speaking in these cases the right to bodily autonomy would be stronger. I think she doesn't want to say either of these things. This might be a matter of book keeping but I thought I'd toss in my $.02.

p.s., I liked your review of Dennett's book.

Clayton, you're right. Thanks for pointing that out. I'm going to recast some of the original post with your critique in mind.

". . . Rather, she maintains that an innocent person's right to life doesn't include the right not to be killed if that person should inadvertently end up parasitizing another person's body against their will"

Not to fuss about it, but even this claim is too weak. Thomson's claim is not conditional. Suppose it's false that the person should (inadvertently or not) end up "parasitizing" ("parasitizing", Clayton?) the person's body against their will. The person still has no right not to be killed. All we have--so says Thomson--is a right not to be killed unjustly. To get a sense of how strong her position is on this---a really scary libertarianism---you would not violate the right to life of a person if you refused to cross the room and touch his forehead, when that very touch is the only thing that would keep him alive. Spooky. This example is hers, with small changes.

Mike, some people would argue that that level of libertarianism is the logical conclusion of Jarvis Thompson's reasoning, but it's a conclusion that she resists strongly.

If pregnancy were as quick and easy as touching someone's forehead, then it would be morally wrong to deny a full-fledged human being that service. Note that pregnancy is not only more difficult and time consuming, but also more personally invasive.

Suppose the person across the room will literally die unless you have sex with him right now. Assume that you know that the sex will only take a couple of seconds and that it will be completely painless and physically harmless for you. Are you morally obliged to drop your pants for the person across the room? I would say no. It would be very nice of you to step up, but justice doesn't require it.

Lindsay,
FWIW, I do think you have your finger on a problem.

Mike,
The term 'parasitizing' wasn't mine. I never would have attempted to use such a word in the wake of St. Pat's (Dallas isn't orthodox, we celebrated on the 11th). I agree that the underlying libertarian position she assumes is not very attractive. If Fonda's cool touch can save Judy from a particularly dangerous bout of swooning, he'd better get out of his chair.

I'd be curious to know what either of you (or someone else) thought: it seems that on Thomson's view if I do something that imposes some slight risk on you for no particularly good reason (e.g., I do something for the enjoyment of the experience and thereby put you at some slight risk of serious bodily injury) if it turns out that I do injure you, I'm not violating your rights if I do not use my resources to help you have your injuries treated. Something along these lines seems to be what she assumes in her discussion of the people seeds case and when I think about duties of reparation, I don't think this principle is all that plausible on its face. I'm very sympathetic with her conclusions, but the underlying arguments I don't find all that convincing anymore.

Yup, "parasitizing" was all mine.

Thompson's underlying arguments are conclusive for the full range of real-life abortion cases. The really problematic cases are the ones in which you could easily save someone's life with an inconsequential favor. What saves JJT as far as abortion is concerned is the fact that pregnancy lasts a very long time and increases a woman's risk of death, disfigurement, social stigma, economic privation, and a host of other bad outcomes. Not to mention the sheer time commitment.

Enduring an unwanted pregnancy is way more than we ask of anyone on behalf of strangers, especially if the pregnant woman took all reasonable precautions to avoid putting a stranger in that position.

Of course, in real life, we shouldn't concede that fetuses are people. They certainly aren't at first. Whatever personlike attributes they take on later are arguably outweighed by a woman's right to control her own body. The real import of JJT's defense of abortion is to show that alleged fetal personhood isn't all that strong an argument. I doubt she herself reasons from unreinforced version of her "Defense" thesis to back her pro-choice position. Fetuses aren't people. For me JJT's takehome message is: And even if they were, it wouldn't be clear whether they'd have any right not to be aborted.

Lindsay,

Don't get me wrong, for the most part I think Thomson's arguments are compelling. The one that seems the most problematic is the one that is supposed to cover the case of accidental pregnancy. It seems to me that if she simply argued by analogy from her people seed example without mentioning, "the fact that pregnancy lasts a very long time and increases a woman's risk of death, disfigurement, social stigma, economic privation, and a host of other bad outcomes. Not to mention the sheer time commitment", her argument wouldn't be all that compelling. I happen to think we have quite limited rights to exclude others from using our property, for example, so what is needed to save her is something extra, the extra bit you mentioned that explains why it is quite silly to compare pregnancy to raising people seeds or someone's touching someone's forehead. Anyway, I think people should thank their mothers for not having had an abortion. There's some conservative bumper sticker to that effect but when conservatives say this, they must be confused since on their view, no thanks are necessary (Of course, these are the sort of people who think you should apologize for getting shot in the face so the confusion isn't surprising).

Not that it matters now, but I was pretty convinced you just made up 'parasitizing'.

A reasonable conclusion, I would think, is that people who support rape exemptions are sometimes being misclassified when labeled as 'anti-abortionists'; people who support the allowing of abortion in certain hard cases may well not be anti-abortion, but just not see any way to reconcile abortion generally with certain rights. It is one thing to advocate for a fetal right to life, and another to advocate the complete banning of abortion; just as it is one thing to advocate for a general right to mobility, and another to say that this means that no one can ever, for any reason, be forcibly confined; just as it is one thing to say that everyone has a right to life and another to deny that killing can ever be excused, justified, or exculpated.

Also, I don't think the primary reason for rape exemptions is that the woman 'didn't put it there'; but simply that people have the sense that rape is an astoundingly terrible thing, and that this should be taken into account; as well as the sense that failing to provide a rape exemption would not take into account just how serious a violation rape is. In other words, to accept rape exemptions, you don't even have to hold that rape justifies the abortion; only that it justifies not banning abortion in cases of rape (or that it justifies not withholding funds in such cases, when that's the form the exemption takes). That's a much weaker claim.

Lindsay,

Great post. I also wonder how this "rape exception" would work in practice. Does there have to be a conviction? An arrest? Can the woman just say she was raped? Does date rape count? If an arrest or conviction is unnecessary, does a court need to determine if a rape occurred?

The GOP is the party of half-baked ideas.

Supporting abortion only when the sex resulting in conception was non-consensual is a logically consistent position. The key point is not whether the fetus is a person, but whether a woman has the power to voluntarily limit her control over her own body.

When a woman consents to sex, she voluntarily accepts the possibility that a baby may end up growing inside of her. In the case of rape, she does not. (A man also accepts the possibility that a baby may end up growing inside the woman. No, it's not fair. But, as opponents of letting men terminate their financial responsibility for a pregnancy like to say, if you have a problem with it, take it up with God.)

A pregnant woman can therefore be thought of as a landowner with someone on her property. In common law, roughly speaking, if you invite or otherwise allow someone onto your property, you are responsible for making sure that they are not harmed while they're there.

Sure, it's your property, but you've voluntarily limited your own ability to do what you want with it. So you can't invite someone over for a cup of poisoned tea, or let them stumble into the pit of spikes you keep in the backyard.

On the other hand, if a burglar or a trespasser enters your property without your permission, you don't have the same responsibility for their safety that you do for guests. If a trespasser or burglar hurts himself on your property, it's his tough luck. You may even be legally permitted to kill a burglar in self-defense. (These are general principles; there are nuances and exceptions.)

A woman impregnated through non-consensual sex is like a homeowner whose house is being burgled. It would be wrong to treat her no differently than someone who had someone over for tea.

I swear, "http://medical-dictionary.thefreedictionary.com/parasitizing>parisitizing" is a real word!

The rape exemptionists want to argue that there's something special about completely non-consensual sex. The standard RE line is that a woman become responsible for gestating the fetus to term if she engages in consensual sex because she ought to have foreseen the risk of putting an innocent person in danger (i.e. creating a fetus who will be killed).

If I believed that fetuses were people, I couldn't agree with the REs. A woman who voluntarily had sex knowing that it would put an innocent person at risk would bear more responsibility for the welfare of the fetus than a woman who was raped or infiltrated by people seeds. I still don't think that anyone owes anyone else the use of their body, even if they did help contribute to the situation that created the need in the first place. If the woman in the JJT scenario somehow contributed to the accidental destruction of the violinist's kidneys, he might have more of a claim on her than if his minions had kidnapped her at random. However, that still wouldn't mean that he would have the right to demand that she allow him to parasitize her for months. She might very well say that she was sorry but that was just too much to ask anyone to pay for an honest mistake, especially if she was at most 50% responsible and especially if she had taken all reasonable precautions to protect him.

If I thought fetuses were people, I wouldn't support a rape exemption. Sure trespassers enter at their own risk, but that doesn't mean that you have a right to kill them or let them die just because you don't want them around. Imagine you come home on the coldest day of the year to find a squatter in your living room. Clearly he has no right to be there. On the other hand, you don't have the automatic moral right to kick him out knowing that he will freeze to death. It doesn't matter whether you left your doors unlocked or whether he broke in, or whether he showed during your open invitation party last night and just won't leave. You still don't have the moral right to push him out the door to die--that is, unless you think he might kill you (preeclampsia, gestational diabetes, etc.) or torture you (labor).

Lindsay,

"If pregnancy were as quick and easy as touching someone's forehead, then it would be morally wrong to deny a full-fledged human being that service. Note that pregnancy is not only more difficult and time consuming, but also more personally invasive"

Yes and no. Thomson says that it would be "morally indecent" of you not to cross the room. She also says that if you didn't, you would not be violating anyone's rights. So, take the abbreviated pregnancy case. Imagine that in ten minutes the fetus will have reached viability. Even in this case she says (explicitly) that you would not violate anyone's rights in refusing the fetus the ten minutes. You would have done something indecent, sure, but that's no rights violation. Indeed the indecency claim is a little obscure. She means, so far as I can tell, that you would be violating a duty of beneficience, not a duty of justice, in failing to do cross the room or to give the fetus ten minutes. But duties of beneficence have always had much less force or stringency with liberarians (from Kant, maybe Leibniz, down). So it is no serious moral violation.

Clayton,

I was joking about 'parasitizing': it's just weird to hear it as a verb form. No matter. I've thought a little about the further point you raise, and I think I don't see how the people seeds case raises the worries you mention. Maybe I'm missing something. How does it go?

Fledermaus:

There's already quite a bit of legal background for using rape as an exemption, both in the U.S. and abroad. In past laws containing rape exemptions, if I understand correctly, what has usually been required is that (in the weaker versions of the exemption) the woman claim the exemption through a doctor or (in stronger versions of the exemption) the woman report the rape as a rape to the police. In either case she's given the benefit of the doubt. I don't know if any other versions exist. Unless I'm mistaken, it's already usually the case that to get Medicaid funding for abortion in the case of rape, the woman must report it either to the police or to a doctor. The Medicaid case shows that the primary difficulty with the rape exemption is not the exemption as such, but the reporting -- the reporting requirements for Medicaid are often considered to be onerous and problematic.

Imagine you come home on the coldest day of the year to find a squatter in your living room. Clearly he has no right to be there. On the other hand, you don't have the automatic moral right to kick him out knowing that he will freeze to death.

I think you're hedging your argument with talk of "moral" rights. The abortion debate is about what a woman should have a legal right to do, yes?

I have no legal obligation to shelter a squatter in my home just because it's cold outside, however compassionate it might be of me to do so.

In response to Gaijin.

In Minnesota during the winter, I understand that it is illegal to pass up a stranded motorist on the highway.

You have to pick them up.

You can have no legal system which allows to disregard the well being of others, unless your own life is in danger.

If you and I are in a crippled aircraft with one parachute, it is legal for me to grab the chute and leave you to die, because I have a right to save my own life. That's as far as it goes.

I have never understood exactly why compromise is so difficult with regards to this issue.

Enlighten me, what's wrong with limiting elective abortion to, say, the first trimester. What's wrong with publicly challenging the pro-lifers to adopt a two-pronged effort to reduce abortion.

1. Restrict abortions after 20 weeks (or some other benchmark).

2. Provide sex-ed for high school students (not abstinence only) and provide effective birth control for women over 14 (or 16 or whatever).

Wouldn't that put them on the spot?

Posted by: John Locke | March 12, 2006 at 10:16 PM

You think they are going to forgo the idea of 'let 'em keep breeding and keep 'em stupid' policy?

I don't think so. The rest of argument are just contrite details.

It recently hit me reading the South Dakota anti-abortion legislation how pro-lifers have induced us to accept pregnant women as mothers — e.g., "exception for life of the mother." Pregnant woman = mother. Fetus = child. And when pro-choice people use that language, even in resistance, they unwittingly reinforce the pro-life position.

Mike,
It seems given Thomson's reaction to her people seeds example she is committed to saying that when I raise the chances that someone may come to be wholly dependent upon my property in order to survive, I would not thereby lose the rights to exclude another from the use of that property I had prior to the accident even if this need would never have arisen were it not for my action. When I think about my right to use my financial resources in the wake of an accident I knowingly raised the risk of occurring (when I didn't have weighty reasons for doing those actions that impose risks upon others), I'm far from convinced I retain the right I'd otherwise have to exclude someone from the use of my property. There might be some principle in the neighborhood that gets her what she wants and she might get what she wants by playing up the serious differences between allowing someone to use one's apartment or one's body, but I'm not immediately convinced that the general claims she seems to be denying are false.

John Locke wrote:

You can have no legal system which allows to disregard the well being of others, unless your own life is in danger.

In fact, that is exactly how English and American common law has historically worked in almost all cases. Not only is there is no duty to assist someone in danger, but in fact, they can sue you for any harm you allegedly caused while trying to help them. (The lawsuit against Mr. Incredible in The Incredibles is actually a pretty good illustration of this concept.)

John Locke (I heard you died in 1704) wrote: What's wrong with publicly challenging the pro-lifers to adopt a two-pronged effort to reduce abortion.

One thing you have to understand about pro-lifers and many other religious people is that they are not utilitarians. They don't adopt a position just because it increases overall happiness or because it decreases overall suffering.

The best example of this is not abortion, but Terri Schiavo.

Clayton and Mike, the thing you're missing--and the thing that saves Thompson--is that there is indeed an enormous difference between touching someone on the head or letting them stay in your apartment and letting someone live inside your body. Bodily integrity cannot be compared to regular property rights or a head-pat.

Lindsey, I actually think you're being a little bit unfair to the rape exemptionists here--their argument is that the right to bodily integrity exists but is contingent on not acting "irresponsibly" in such a way as to create a situation where someone might require the use of your body. It is internally consistent. But it would require rape exemptionists to do two things: 1) deny a life exemption if the mother had consensual sex, because she knew about the risk of possibly dying from pregnancy when she had sex, and 2) as you pointed out, require that all fertile women be on birth control to avoid accidental impregnation, even through rape. They're not arguing either of these things, and that's where their real inconsistency comes in.

Gaijin Biker--

"A pregnant woman can therefore be thought of as a landowner with someone on her property."

So a woman is property? I guess now we know where the real underpinning of the pro-life position. As Lanoire points out, the property/body analogy is completely inappropriate.

"The lawsuit against Mr. Incredible in The Incredibles is actually a pretty good illustration of this concept."

I haven't seen anything written about the case of Incredible vs...wait. Are you talking about a CARTOON? See, that's the problem. In the real world, it's nearly impossible to successfully sue someone for making a good-faith effort to rescue you from imminent peril.

It's really amazing, the verbal gymnastics that extremists are willing to go though in order to come to a position that would be acceptable to more than a tiny fringe element.

If a fetus has the same status as an infant, couldn't you apply the same RE arguments to justify the infanticide of an infant produced by rape? What would obligate a woman to feed, house, or clothe this intruder?

I think most right-to-lifers would be a lot happier if they'd just admit to themselves that their motivation is not saving human life, or even innocent life (most don't favor universal health care, for example). They want women to accept "punishment" for being "irresponsible." If this weren't the case, I think we'd see a groundswell of support for free condom distribution coming out of the Evangelical and Catholic churches.

Lanoire,

I can't speak for Mike but just to be clear, my problem with Thomson is not what she says about bodily autonomy but what she seems to be assuming about property. Of course there's a huge difference between rights to bodily autonomy and rights to the use of property (and vast differences between a touch on the forehead and saving someone's life through sex--wait, that's just a con guys on poorly written sitcoms try, right?).

Anyway, I don't think either Mike or I missed the point you were making. I'd heartily endorse it. I simply wanted to say that I didn't find Thomson's points about property all that convincing. But, for the reasons Lindsay had already mentioned, property isn't a good analogy. Maybe the way to think about property/body is like this. If it really was the case that one would retain an exclusive right to property under a set of circumstances, one would retain an exclusive right to the use of one's body under otherwise similar circumstances. It's just the converse I don't think we should accept.

If the question is whether anti-abortion people who believe in a rape exemption are correct, I would agree that the answer is no. I do not believe that a fetus is a person, and if I did, I would not agree with a rape exemption for the reasons stated by Lindsay above.
However, I thought the point of the post was to ask whether was any logical consistency to a rape exemption. If so, I have to say I think there is. The involuntary nature of pregnancy by rape and the horror of being raped are each factors that result in the analysis of whether abortion in the case of rape is wrong being different than the analysis of whether abortion in the case of consentual sex is wrong. I may disagree with those who come to different conclusions in these different analyses, but that does not mean it is logically inconsistent to come to different conclusions.

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