The U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization makes clear that abortion is, once again, a public issue, one in which the public gets to decide on the scope of abortion rights. There are a number of consequences for such a clear recognition that abortion is a public matter. One such consequence is that the public bears personal responsibility for its decision on the issue. The well being of every woman and every child becomes the concern of every citizen.
Another consequence centers on liberty. There is no way to get past the obvious breach of bodily autonomy imposed by any state that curtails access to legally recognized abortion measures. And, it is no answer to this breach that the life of the unborn child must take precedence, because that answer only recognizes the breach and merely makes an exception to it.
Women are uniquely impacted by society’s limitation here. There is no other similar autonomy-centered right that is limited by some special responsibility men owe to another human being. In order to maintain a free and equal society when a state imposes an undue burden on a woman’s access to abortion measures, that state must balance the equities somehow.
The future holds only hard discussions. These discussions are necessary. But not every discussion must be contentious or overly difficult. Here, I hope to address one topic that should lend itself to some quick and easy resolution: Rape.
Anti-Abortion Laws Should Except Rape Victims
The Texas ‘trigger law’ provides an example of an anti-abortion statute that does not except rape. A person who “knowingly performs, induces, or attempts an abortion,” as defined by the statute, commits a second-degree felony. Again, there is no exception for rape victims. This lack of a rape exception raises a serious question: Why force a rape victim to carry a rapist’s child to term?
Let’s assume that the rape victim lacks the means to travel across state lines to secure a legal abortion. Also, bear in mind that the normal “personal responsibility” assertions do not apply to a rape victim, i.e., a person who did not consent to sex. What justification exists to force a woman under these circumstances to give birth to the rapist’s child? Asked another way: What non-question-begging reason can the state provide to force a rape victim to embrace her victimization? The best answer, perhaps, is that the unborn child would be victimized by abortion, and priority must be given to the sanctity (or dignity) of human life.
However, the sanctity or dignity of human life fails alone to justify the extreme deprivation of liberty placed on the rape victim. We make exceptions to the sanctity or dignity of human life on a regular basis. Consider military action and the concept of “collateral damage.” We consider the death of innocent civilians, including women and children, a tragedy, but society accepts these deaths as a consequence of war or international conflict. While that example may seem extreme, it demonstrates that human life is not treated as sacred or dignified as one would like to believe.
We also accept that a consequence of liberty, sometimes, is that innocent people may die by the exercise of some rights. Take the “right to bear arms” as an example. While most people may hope that no murders will every result from the exercise of one’s right to bear arms, no one reasonably doubts that that right leads at times to a person taking another human being’s life, whether “justified” or not. The abuse of that right might be considered a consequence of liberty. A related example of the consequences of liberty is the use of speech that excites passion (short of “incitement to violence” as legally understood) and leads eventually to violence and death. We recognize the power speech carries to motivate action, but we protect speech despite its worst potential consequences.
Back to rape and forced pregnancies. No one can reasonably doubt that each person has a right to the inviolability of her body, to full personal autonomy. The right to personal autonomy is the cornerstone of self-governance—a recognition that every person is a self-legislating agent endowed with the capacity to consent to be governed. A consequence of recognizing each person’s right to autonomy, the backbone of self-governance, is that a rape victim—one who did not consent to sexual intercourse—cannot be forced to give birth to any child that was the result of her lack of consent in the first place; otherwise, she is not treated as a self-governing, autonomous self, but merely as a means to an end not of her choosing.
Also, a consequence of the right to dignity and privacy is that a rape victim’s decision to consent or not to consent to carrying a rapist’s child to term is the victim’s decision alone. While some people may doubt the right to dignity and privacy generally, no one in Texas should doubt that the victim of a crime, such as a rape victim, has a “right to be treated with fairness and with respect for the victim’s dignity and privacy,” as such a right is included in section 30 of the Texas Bill of Rights. This right attaches “throughout the criminal justice process”—a process that undoubtedly includes any trial, imprisonment, and even release from imprisonment, terms included in section 30. The state shows less than respect for the victim’s dignity and privacy if it forces a rape victim, against her will and consent, to publicly carry her rapist’s child at any time during such process.
The extreme deprivation of personal autonomy, bodily integrity, and dignity that results in forcing a rape victim to carry her rapist’s child to term is too great to impose on the victim, and too much an affront to the concept of liberty generally. This is an issue which should garner general consensus in favor of the rape victim’s right to choose.
