Categories
Abortion

The Rape Exception

“On Abortion and Defining a ‘Person’” by Notre Dame Professor Gary Gutting is a provocative discussion of the implications of the recent defeat of Mississippi’s personhood amendment “for the logic of the abortion debate.”  Although most of the essay focuses on what the measure’s defeat reveals about people’s attitude toward the personhood of a fertilized egg, Gutting also gives a powerful critique of the rape exception.  He says it is “obviously wrong to kill a newborn on the grounds that it was conceived through rape or incest.”  If “the fetus before birth has the same moral standing as the newborn,” allowing fetuses to be killed under circumstances not permitted for newborns contradicts “the basic claim that there is a human person present from the time of fertilization through the birth of the baby.”

Gutting posits what appears to be an inescapable dilemma for the pro-lifer who accepts the rape exception—to support the exception is to undermine the normative basis of one’s pro-life position.  But is there perhaps a way out?  Might not a rape exception proponent admit that aborting a fetus conceived via rape does in fact kill a human person, but argue that the rape exception is nonetheless essential?  The rape exception enjoys such widespread support that no meaningful restrictions on abortion could likely pass without it.  (I assume for purposes of argument that such limitations would be constitutionally permissible.)  Since non-rape related abortions vastly outnumber those due to rape, isn’t it better to sacrifice a few to save the many?  This argument has a certain utilitarian appeal, and it does, I submit, refute Gutting’s point that a rape exception is necessarily incompatible with the pro-life view of fetal personhood.  The problem, of course, is that this consistency comes at a steep cost.  To defend the rape exception in this way requires one to acknowledge that sometimes some persons must die so that others might live.  Isn’t this in essence a pro-choice approach?

Samuel Calhoun

Samuel Wolfe Calhoun, J.D., is Professor of Law at Washington and Lee University School of Law. He received his J.D. from the University of Georgia and his B.A. from Harvard University. His teaching interests are contracts, commercial law, and legal writing. In addition, he teaches a seminar on the abortion controversy. His scholarly interests are law and religion, abortion, and jurisprudence. His most recent major piece of scholarship is “Grounding Normative Assertions: Arthur Leff’s Still Irrefutable, But Incomplete, ‘Sez Who?’ Critique,” Journal of Law and Religion 20 (2004-2005): 31ff. His website can be found at: http://law.wlu.edu/faculty.