An Uncomfortable Analogy

The rights of rape victims provide a framework for thinking about abortion rights, argues Cornell law professor Sherry Colb.

The law recognizes an individual’s right to defend herself against physical attacks and unwanted bodily intrusions. In the case of rape, the victim’s lack of consent gives rise to the right to stop unwanted sex through the use of violence that might otherwise be illegal. Like rape, Colb writes, pregnancy may consist of an unwanted physical intrusion that creates a right to stop the intrusion:

The rapist surely is culpable in a way that the embryo is not and indeed could not be. But the right to self-defense does not turn on the culpability of the assailant. It turns on necessity. If one needs to use deadly force to protect oneself against death or serious bodily injury (including rape), then one may do so, even if the threat comes from an aggressor – such as a “psychotic aggressor” – who is innocent of the harm he threatens to impose….

If a woman can make her pregnancy stop without killing the fetus – for example, if she is carrying a viable fetus – then she might have an obligation to terminate her pregnancy in a non-lethal manner. We might think of her as having a kind of “duty to retreat” if she can do so safely, instead of unnecessarily using deadly force to achieve bodily integrity.

This familiar balancing of interests probably explains why there’s broad public support for more prohibitions on late-term abortions, i.e. after the age of viability, and for fewer abortion restrictions for rape victims and women who face higher mortality risks from pregnancy.

But one problem with Colb’s analogy, at least as developed here, is that it elides distinctions between rape and pregnancy as types of invasions. To fend off a rapist, deadly force isn’t legally justified per se; as with other attack victims, a rape victim invoking self-defense must have reasonably believed that deadly force was necessary under the circumstances. And many sexual-assault scenarios do give rise to a reasonable fear of serious injury or death. (Recall, for example, Christine Blasey Ford’s fear that the teenage Brett Kavanaugh was going to inadvertently kill her by covering her mouth to keep her quiet.)

By contrast, although pregnancy and delivery can certainly carry real physical risks including death, most American pregnancies wouldn’t cause the objective “reasonable person” to fear for her life. In the moral balancing act that makes this issue so controversial, one could argue that carrying a fetus at least to viability is morally required on the same grounds as the duty to retreat. That is, if you can avoid ending a human life by enduring a longer but still time-limited bodily intrusion, some (though not me) would say a fair balance of interests mandate that.

So even if we could achieve broad consensus that rights to bodily integrity apply to all pregnancies, I think the abortion debate would still be stuck on persistent disagreements about the worth of an unborn human being (and the harm from loss of that life) and the nature and weight of the mother’s consent to carry it.

Photo credit: Chris Yarzab, “Honey Bee.” Some rights reserved.



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