rape exception to abortion restrictions

Volokh, Eugene VOLOKH at law.ucla.edu
Wed Mar 22 23:08:11 PST 2006


	Actually, the rape exception fits quite neatly with one of the
common law rules about a duty to rescue (which in turn I think fits
neatly with at least one plausible set of moral intuitions):  One
generally has no obligation to save the life of another, but one does
have such an obligation if one has caused the damage negligently and (so
some authorities suggest) even nonnegligently.  You can pass by a car
wreck on the side of the road and not stop to help.  But if you cause
the wreck, then you have a duty to help.

	The analogy is that a woman who aborts a fetus that came into
the world as a result of her voluntary conduct (even if she didn't wish
for a conception) thus has a legal duty to protct the child's life.  A
woman who aborts a fetus that came into the world as a result of her
involuntary conduct -- i.e., if she was raped -- has no such duty.  

	Naturally, one can resist the entire theory I describe;
pro-choice people generally do.  And I should also stress that the
analogy is not intended to be perfect -- no analogies, and especially no
analogies to something as sui generis as conception and abortion, are.
(For instance, the pro-life approach would require a far greater
contribution of effort on the woman's part than the duty to rescue, when
it exists, tends to require on the rescuer's part.  On the other hand,
physical reality makes it unnecessary for a single rescuer to shoulder
most of the burden of the rescue -- at some point, the ambulance comes;
not so for pregnancy.)  But the theory strikes me as a coherent one, and
one quite consistent with an exception for rape, or for the life of the
mother.

	Eugene


John Noble writes:

The rape exception is perverse in light of the pro-life logic that
abortion is murder; but the suggestion that it creates a perverse
incentive to make false rape reports seems like a stretch even with the
"skepticism about rape generally." A woman who falsely reports a rape
only after she discovers that she's pregnant not only needs to explain
the delay, whether days or weeks; she also risks going to jail if she
doesn't identify her alleged assailant before the police match his DNA
to the aborted fetus. Even in the most skeptical imagination, a woman
would need a better reason than Medicaid eligibility to file a false
police report.


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