by Glenn Cohen
As America’s attention focused on the Republican Convention and the Obama campaign tries to portray a “Republican War on Women” at the Democratic one, last week Mitt Romney tried to clarify his position on abortion, namely: while he is generally against abortion, he would make an exception for cases where the mother has been raped or is the victim of incest. While politically savvy, based on other beliefs Mitt Romney has, this position is hard to defend if not incoherent. Here is why:
Mitt Romney, like most people who would outlaw abortion, must subscribe to two core beliefs: (1) Fetuses are persons and get the full panoply of the rights of persons from early on in their development (for Romney, like many, at “conception”), or at least possess a right not to be killed. (2) The mother’s interest in protecting her bodily integrity, making important reproductive or life choices, etc, does not outweigh the fetus’ right not to be killed. This is why Romney and other pro-lifers would prefer that abortion be banned even in the first trimester.
This logic is not incompatible with exception for the health or life of the mother. Through the well-known doctrine of self-defense, the criminal law has long recognized that an individual may be justified in killing to protect his or her own life, or possibly health, and these exceptions merely reflect a similar view as to fetuses.
The rape and incest exceptions, though, are on a different footing entirely.
In general, the criminal law permits self-defense only to prevent serious injuries or threats of death, and even then only when one is immediate danger and where the force used in self-defense is proportional to the threat. Even if we were to recognize rape or incest as involving the kind of serious injury the law has in mind (some forms of each might qualify, others might not), the act of self-defense is not aimed at preventing the rape or incest. That harm has already occurred once the woman is pregnant and allowing the killing of the fetus will do nothing to stop it.
Instead, for someone who is pro-life (including Romney) the rape and incest exceptions must represent a view that there are permissible and impermissible reasons to want to kill a fetus, and that the permissible ones are connected to the fact that the pregnancy arose out of rape or incest.
Notice that when properly understood many who are pro-life should have trouble with this claim. Are there really any good reasons to kill a fetus? Perhaps it is the fact that the fetus and its pregnancy are constant reminders of the trauma of rape and incest, a different kind of harm? But that would seem to punish the innocent fetus for the crimes of its guilty father, which seems wrong. This particular fetus is no more at fault than the fetus that results from consensual sex, so why should it alone be subject to killing?
Moreover, if, a pro-life individuals believe fetuses are full persons from the moment of conception and abortion is murder, then it is not altogether obvious why the privilege to terminate a fetus due to its connection to rape or incest should not extend to children after they are born as well, such that infanticide is equally permissible on this ground. Perhaps one can argue that killing infants, even though just as much persons as fetuses, engenders more moral confusion, but that seems a bit ad hoc.
Finally, notice that if the regret, relived trauma, etc, of women who are the victims of rape or incest is sufficient to give them a prerogative to kill a fetus, limiting the exception to rape and incest is underinclusive. To give just one example, raising a profoundly disabled child might be thought to also impose significant costs on mothers over their lifetime. To be sure this is a very different kind of set back of interests, but at least for some mothers may have just as large an effect on their welfare. Yet pro-life individuals are firmly against the abortion of such children. Moreover, one argument sometimes offered as a salve to the trauma of unwanted children – the ability to put children up for adoption – is equally available for the children of rape and incest, so it is not clear why it should be sufficient in this instance but not the others.
Therefore, based on what Mitt Romney has said, it seems inconsistent for him to want to make an exception for rape and incest exception.
Are there ways of being pro-life and avoiding that conclusion? Possibly. Perhaps one might argue that a woman’s reproductive autonomy counts for quite a lot and is just barely outweighed by the life of the fetus as a moral value in ordinary circumstances, but in the rape and incest exception the added trauma to the mother justifies a different balance. This approach would still have to explain why abortion is impermissible for the profoundly retarded child, and adopt a view that fetuses are not full persons to be able to distinguish the killing of infants. Would that work? Unclear. What is clear is that neither Romney nor most pro-life Republicans have championed those kinds of premises. Until they do, supporting a rape and incest exception, while politically palatable, appears hard to justify.
As an “argument from asymmetry,” as I like to call this kind of argument structure, notice that if there really is an inconsistency there is at least two possible solutions (and perhaps a third borrowed from Dan Kahan’s notion of “The Secret Ambition of Deterrence” just to leave well enough alone in the name of liberalism sometimes): (1) Outlaw abortion whether or not rape or incest is what gives rise to the pregnancy. (2) Outlaw no abortions (which those of us who are pro-choice would prefer). What is missing is the middle course urged by Gov. Romney.