Watching the recent controversies on this blog and elsewhere over the attempts of Senate candidates Mourdock and Akin to explain why they oppose abortion even in cases of rape, it has become apparent that the difficulty in explaining that position extends well beyond those two gentlemen. I suggest that this is a byproduct of the long-standing focus of pro-lifers on establishing that life begins at conception rather than directly addressing the pro-abortion argument that legalized abortion is an important right. Basically the two sides have been talking past each other for decades as abortion proponents have tried to ignore the life of the baby and pro-lifers have assumed that the baby’s right to life overrides any interest that the mother could have in terminating her pregnancy. I’m sure there have been many exceptions to this generalization, but it seems fairly rare that one hears an argument attempting to explain why a woman’s right to abortion should or should not override her unborn child’s right to live.

Addressing this intersection becomes particularly important in addressing the rape exception because the woman’s claim to an abortion right is far stronger than it is for a pregnancy resulting from voluntary intercourse, while the interest of the child remains the same in the two circumstances. Relying strictly on the “life trumps all” argument necessarily leads inexorably to the position that abortion should be illegal even in cases of rape, and makes it difficult to address the special issue of rape victim abortions in a way that acknowledges the greater difficulty without weakening the argument against abortion generally.

But bringing in wider principles of justice allows for some meaningful distinctions to be made between these situations. A fundamental component of our law is the notion of duty. We do not have a general duty to help people. Law professors often illustrate this with the extreme hypothetical of a passerby encountering a baby who is drowning in a puddle. Although the passerby could easily rescue the baby with no cost to himself beyond a moment of his time, the passerby has no duty to rescue the child. If he lets the baby drown, he is a moral monster, but he is not a criminal or even a tort-feasor. But if the passerby created the peril – perhaps by accidentally tripping over the baby, then he has a duty to provide a reasonable rescue. A relationship is also sufficient so that a parent who callously watches his own child drown in a puddle can be held criminally liable for the death. Dittoes for the child’s baby sitter.

This has an obvious analogy to the abortion issue. I expect most pro-lifers would agree that a woman who engages in voluntary intercourse accepts the risk of a pregnancy and the ensuing responsibilities to the child thus conceived.  But the question of duty becomes more difficult in the case of rape. One could point to the parental duty, but that in itself is normally the result of voluntary acts. My own answer to the question would be that abortion is not a passive act like watching a child drown but is instead itself an affirmative, voluntary act that should be punished – you may not have a duty to rescue a drowning man, but you can’t push him back in the water if he climbs into your boat.  But there is also the counterargument that a pregnancy is a far greater burden than simply pulling a baby out of a puddle, and that argument has considerably more force in the case of rape than in that of most abortions. Ultimately, I think the baby’s right not to be killed overrides the woman’s right not to be pregnant, even if the woman did nothing voluntarily to bring about the pregnancy. But it is far more reasonable to allow abortion in circumstances of rape than in pregnancies resulting from a voluntary act. I think it would be helpful to have more discussions on why this is so – it should also help to persuade people of the larger issue of abortion generally, and hope that this post will help to spur some thinking and discussion about this issue.

But there is a difference in the women’s interests.