Can conservatives talk coherently in 2018 about abortion in case of rape pregnancies? The implosion of the Republican Party in these elections has been painful for many conservatives, and for good reason. Donald Trump’s positions on issues like free-trade, immigration, and America’s role in the world have gone against long-time conservative stances. On other issues, such as abortion, his confusing and baffling remarks have made it difficult to understand what he believes.
Yet the party’s current unravelling also paves the way for thinking anew about how to formulate a renewed conservative agenda, including its pro-life dispositions on abortion. Even before Trump, pro-life Republicans like Todd Akin, Richard Mourdock, and John Koster committed blunders that cost key votes in important races.
Admittedly, rape pregnancies are one of the more difficult subjects to discuss. Yet one wonders how people believe such politicians deserve a place in public office when they remain so inarticulate yet so dogmatic on one of the most controversial questions of our times, especially when they invoke religious beliefs in their defense.
Fluency and eloquence will not necessarily convince others to change their minds on this issue, but they will at least make the candidate seem rational and empathetic, not rash and heartless. With late-term abortions and Planned Parenthood funding back in the headlines, and the vice presidential candidates renewing discussion about the role of faith in these debates, conservatives must recognize the imperative of developing a more articulate and coherent position on this divisive and sensitive question.
This essay elucidates the positions of several major faith traditions on abortions in cases of rape. These faith traditions present varying positions which are defendable and reasonable. The position that abortion should not be allowed even in cases of rape is neither dumbfounded nor indefensible, even as I do not find it compelling nor do I think it accurately reflects that of many Bible-loving, pro-life Americans, including that of my own Orthodox Jewish faith. As I will argue, this should be a factor for many politicians when thinking about American public policy and the electability of a pro-life candidate in swing states.
Hard Cases Make Bad Law, And Bad Arguments
From all the heated rhetoric, one would think that abortions in rape pregnancies represent a significant percentage of American abortions. In fact, according to research published by the National Abortion Federation and the Guttmacher Institute, only 1 percent of women in the years 1987, 2004, and 2009 who elected to abort claimed their pregnancy was a result of coerced intercourse.
The consistency of this figure over a large number of years highlights that we are dealing with a small percentage of abortions, the vast majority of which involve unmarried women who are not interested in raising their child. In parallel, the “hard case” with which pro-choice liberals struggle, mid- or late-term abortions in the case of severe or fatal birth defects, similarly represents roughly 1 percent of abortions in the United States.
Accordingly, much of the heated rhetoric in the United States on the abortion debate is dealing with highly emotional circumstances that represent a miniscule percentage of abortions. Yet these hard cases incite such passion because they put into relief the moral issues that underlie the abortion debate.
In the case of rape pregnancies, this challenge leads to two faulty claims pro-life advocates make, one scientific and the other theological. Akin became notorious for asserting that during rape, “The female body has ways to try to shut that whole thing down.” Following widespread media coverage after Akin’s bungle, one hopes that by now most people understand that rape can lead to pregnancy.
This is true in all scenarios of rape, ranging from violent attacks in dark alleyways (the scenario I presume Akin intended when he infamously invoked a “legitimate rape”) to relationships between a 22-year old college student and a 15-year old high school girl (“statutory rape”). While estimates vary greatly, it is widely assumed that thousands of rape-related pregnancies occur every year in the United States alone. The most frequent incident of rape pregnancies, according to a widely cited 1996 study, involves cases of “date rape” or “marital rape” in which a known partner imposes sexual relations.
As noted in a medical comment published alongside this article, it remains possible that in some of those cases, the women were actually impregnated from a different consensual encounter with their partner. Be that as it may, health professionals agree that there is no reason ovulating rape victims cannot become impregnated in any form of rape, broadly defined as sex without valid consent.
Unfortunately, 2012 was not the first time pro-life politicians have claimed that rape pregnancies cannot occur. The continued use of this false scientific claim presumably reflects the challenge that rape presents to pro-life activists: most people, religious or otherwise, feel intuitively uncomfortable with a woman being violated and then being forced to bear the weighty responsibility of having a child from that traumatic event.
Trying to Understand Why God Gave This Life
This discomfort leads to the problematic theological claim Mourdock made against abortion in rape pregnancies: All life, even when produced from rape or incest, is a gift from God, and therefore one cannot destroy this divine present.
Let’s assume one believes all pregnancies stem from God’s intervention. Does that necessarily mean that every fetal conception is a gift? Would you make the same argument for fetuses who die in utero or cause their mothers to die in childbirth? Then there are the fetuses born into the world to live a brief life of suffering before dying. Do you really believe every life is a gift from God?
Ultimately, this is a form of theodicy, and like all theodicies, it brings solace to some but certainly not for others. As we learned from Job’s friends, it is inappropriate to preach your theodicy to those suffering rape victims who might not share your theology and find your homiletics patronizing, or worse, as implying that their pregnancy was a punishment from God. Their tears might not override an ethical claim against abortion, but they do demand a certain amount of theological modesty.
Instead, serious thinkers who oppose abortion in rape pregnancies make a substantive moral claim: one may not kill a human life simply to prevent the mental anguish of another person. Let us take, by way of an imperfect analogy, the case of a victim of violent rape who had been trying to conceive with her husband at the time and elected not to abort out of hope that the fetus was from her husband’s sperm. At the time of birth, DNA tests determined the child was the seed of the rapist. It’s a tragic situation, yet certainly one which would not justify killing the newborn. (Today, women in this situation would likely perform a paternity test toward the end of the first trimester through chorionic villius sampling or amniocentesis).
Consequently, the critical moral question remains: When does life begin, or, to put it more precisely, when does the zygote, embryo, or fetus achieve a status that deserves to be considered human life requiring protection? The simplest argument against abortion in all cases of rape at any stage or pregnancy begins with a fundamental moral premise: human life begins at conception.
‘Life Begins at Conception’ Is an Ethical Argument
Science can neither prove nor disprove that claim, just as science cannot “prove” when a human organism has died. Doctors can depict the different stages of development, but ultimately it is a moral claim—which can be based on ethics, religion, or culture—to determine at what stage of embryonic development we afford legal recognition to that life form. This is an important point some 2016 Republican candidates bungled in early debates. Science can support the reasonableness of one’s position, but ultimately one must make an ethical argument to explain why conception, birth, or any biological stage in between should be the legal commencement of life.
Once one has established conception as the beginning of life, the argument against abortion in rape pregnancies then applies natural law theory which asserts that one may never directly intend to kill an innocent human. This is a general ethical claim, not an exclusively religious one, and one that I presume many Americans share (or at least respect).
Consequently, it proceeds to assert two additional claims: 1) once life has begun, we cannot take the fetus’ rights to life, and 2) this remains true even if it was created under tragic circumstances that were traumatic for its mother. For most advocates of this approach, exceptions are only made when the mother’s life is endangered because the intent is to heal or save the mother, with the tragic death of the fetus deemed an unfortunate and indirect side-effect.
Unfortunately, politicians sometimes botch the natural law argument with a claim against abortions in rape pregnancies that goes something like, “How does it help to place even more violence onto a woman’s body and take the life of an innocent child?” This type of rhetoric is terribly misguided.
Firstly, it is insensitive to a victim to compare the excruciating torment of rape with the difficult choice to abort, especially when dealing with a stage of pregnancy at which we do not know whether a fetus cannot feel pain. Secondly, unwise rhetoric leads to a (mistaken) counterattack: “If that’s the case, why allow such violence against the innocent child when the mother’s life is in danger—how does that help?” The ethical claim, however, is not one of violence against the fetus, but rather the goal or intent of the abortion. Politicians who stay focused on the natural law claim will remain clear and coherent regarding their moral stance.
Amongst contemporary religious groups, this approach is known as the position of the Catholic Church and the Southern Baptist Convention, whose members included several 2016 presidential candidates like Sen. Marco Rubio and Jeb Bush. Of course, the political stances of candidates regarding American public policy may differ from their religious denominations, as in the case of Gov. Chris Christie and Hillary Clinton’s running mate, Tim Kaine, Catholics who believe abortions should be legal for rape-related pregnancy.
Yet religious affiliation will certainly draw questions on this matter, and candidates should be prepared to give articulate answers, including their position regarding government funding for immediate post-rape treatment and morning-after pills. This is an inevitable question since many pro-choice groups accuse Catholic hospitals of not making rape victims aware of the full range of medical care that would be available at other facilities.
Moral Traditions that Place a Value on Individual Agency
Those who believe abortions should be allowed in cases of rape pregnancy, which include many religious believers otherwise inclined against abortion, may challenge these three Catholic premises by claiming: 1) life does not begin at conception, and therefore we would allow for an abortion at some stage of pregnancy; 2) an unborn fetus does not have absolute rights to life (primarily, although not necessarily, because of its utter dependence on its mother), with mitigating factors overriding its limited claims to protection; 3) the circumstances of conception or pregnancy impact the mother’s rights to control her body, which might trump the rights of the fetus.
While affirming that life begins at birth, Mormons adopt the third approach, and therefore allow for abortions in the case of rape pregnancy, as publicized by Mitt Romney during the 2012 presidential campaign. While deeply rooted in biblical verses and religious belief, one Mormon elder, Dallin H. Oaks, has further explained this dispensation in terms of choice and moral agency. Women who voluntarily engage in sexual relations have chosen to risk pregnancy and must bear responsibility for that choice. However, in the case of rape or incest, “The woman has the moral as well as the legal right to an abortion because the condition of pregnancy is the result of someone else’s irresponsibility, not hers. She does not have to take responsibility for it. To force her by law to carry the fetus to term would be a further violation of her right.”
In other words, even if life begins at conception, the mother has the right to abnegate accountability for this life since she never chose to take on such a moral responsibility. Should the victim decide to bring the baby to term, however, she has then chosen to take upon the moral obligation for its care (i.e. to raise the child or to place it for adoption).
One might challenge this position by arguing that many moral obligations are imposed upon us against our will, even if it comes at great personal cost. For example, we would expect an airplane crash survivor on a desert island to care for the sole other survivor, a young child. Be that as it may, similar dispensations in rape pregnancies, albeit not necessarily for the same reasons, are issued by the Episcopal Church (followed by Carly Fiorina) and the Evangelical Lutheran Church. Accordingly, politicians wishing to adopt this approach should prepare themselves to passionately speak of the responsibilities taken upon consensual sexual activity, even as this might go against the grain of the mores of some Americans.
Some Lessons from Orthodox Judaism
Yet beyond understanding those denominations that allow exceptions in cases of rape pregnancies, it remains important for advocates of the Catholic or Southern Baptist position to appreciate the extent of the broad range of positions within the “pro-life” camp. In this regard, it pays to examine the approach of Orthodox Jewish law and the public policy stances Orthodox political organizations take.
Undoubtedly, Jewish law clearly maintains a generally conservative outlook that rejects the pro-choice mantra of abortion on-demand. Based on select verses in Genesis, the Talmudic Sages concluded that as a general rule, feticide is prohibited under the seven Noahide laws for Jews and gentiles alike. As such, it remains prohibited to request or perform abortions not justified by Jewish law.
Yet instead of operating under one dominating moral claim, Jewish law introduces several ethical variables to address the complexities of the dilemma. While Orthodox Judaism has no centralized institution that issues authoritative rulings for its followers, various rulings of leading legal decisors reject, at least in part, all three premises of the Catholic position, and permit abortions in cases of rape, at least in the earlier stages of pregnancy.
This nuanced approach, surveys indicate, reflects the sentiments of many Americans, who see “pro-life” versus “pro-choice” semantics as overly simplistic. For this reason, it pays for conservative candidates who are generally averse to abortion on-demand to pay attention to a biblically inspired moral perspective that may attract swing voters.
When does Jewish law recognize the beginning of life? According to several Talmudic sources, Jewish law does not yet recognize a zygote or fetus as a full-fledged life force within the first 40 days of embryonic development from fertilization. This is roughly equivalent to the seventh to eighth week of gestational pregnancy, as calculated from the mother’s last menstrual period, the method of calculation most frequently used in medical circles.
In the initial weeks of pregnancy, the organism is like “mere water” that does not receive the protective rights of a human. In fact, for limited legal purposes, Jewish law does not acknowledge the pregnancy for the first trimester, although the earlier date remains decisive in most legal contexts. To provide perspective on the consequences of these dates, note that according to the Centers for Disease Control, roughly 50 to 60 percent of all abortions in the United States take place by the seventh to eighth week of gestational pregnancy, while about 90 percent occur by the end of the first trimester.
When a Fetus Becomes a Person
Conservative critics of this position contend that Orthodox Jews are adopting an antiquated date that does not take into account contemporary knowledge of the continuous fetal development that occurs from fertilization. Some Orthodox bioethics respond that this terminus remains logical since until this point the physical features of the zygote have not yet developed, thereby precluding it from the status of a human. Only after the eighth week has the human structure more or less developed and the baby, now called a fetus, begins to develop functionally.
Whatever the scientific merits of this cutoff date, the Orthodox position distinctly reflects a certain intuition that at the earliest stages of development, the zygote is not a full-fledged human life. This seems particularly compelling when one recognizes that because of natural biological processes, the vast majority of conceptions do not actually result in pregnancies or births.
Yet no Orthodox scholar liberally licenses an abortion before the fortieth day of gestation. Under normal circumstances, everything is done to save the fetus’ life, including violating the Sabbath, because of the deep value attributed to saving lives, including ones not yet born. The fact that the fetus might not yet achieve personhood is insufficient cause to destroying this future life. (In this respect, the Jewish perspective parallels the position of Aquinas and other medieval Christian thinkers who believed that life does not begin at conception, even as they still deemed abortion a grave sin.)
As such, other mitigating considerations must be invoked—against the second assumption of the Catholic position—to override the obligation to protect this fetus, the scope of which relates to a deep-seated dispute between various Jewish scholars regarding the nature of the general prohibition against abortion.
Based on verses in Exodus, the Jewish tradition has rejected equating feticide with homicide because before birth, a fetus does not have the complete status of a full-fledged human. If feticide is prohibited, but is not homicide, then what is it? Historically, many scholars viewed feticide as a lower-level form of manslaughter that is permitted only when it will save the mother’s life. In that case alone, we treat the fetus as a “rodef,” a potential assailant, and assert that “the mother’s blood is redder than that of the fetus,” so to speak.
This includes cases of direct physiological danger as well as mental imbalance to the point of becoming suicidal. Otherwise, abortion remains a very severe offense. This position was adopted in the 1960s and 1970s by, amongst others, British Chief Rabbi Immanuel Jakobovits, Israeli Chief Rabbi Isser Unterman, and America’s most prominent rabbinic decisor, Rabbi Moshe Feinstein. Significantly, however, most asserted that feticide is not full-fledged homicide, especially when addressing a zygote or even within the first three months or before the fetus would be viable out of the womb. Nonetheless, it remains clear that according to this school of thought, one requires a very compelling reason to waive this fetus’ right to life, even at the earliest stages of pregnancy.
Great Mental Anguish Can Be a Mitigating Factor
Yet other scholars greatly reduced the severity of abortion, even as they firmly maintained its general prohibition. Some asserted that abortion falls under the general prohibition of battery, while others include it within a general rabbinic proscription of preventing the creation of life. These lenient assessments clearly allow for a broader range of dispensations, including cases in which the pregnancy might aggravate preexisting medical conditions that are not life-threatening.
In fact, the Talmud asserts that when a pregnant woman sits on death row, we kill the fetus before the execution to prevent undue embarrassment to the mother. Consequently, one eighteenth-century scholar allowed a repentant married woman to abort following a consensual adulterous affair, since the fetus would have become an illegitimate child with severely limited marital rights while causing tremendous shame to the mother and her family.
Although this wasn’t the case at hand, he further noted that by the same logic, one could also permit an abortion even for a single woman. Others strongly disagreed with this opinion, contending that such dispensations would encourage promiscuity and that the analogy to the Talmudic death row case is inappropriate since the fetus would anyway die with its executed mother.
Be that as it may, on the basis of this Talmudic passage, the factor of great mental anguish or shame entered into the lexicon of mitigating circumstances for abortion. Some scholars complained that such a variable remains too fluid and subjective, while others limited its application to cases in which a woman would suffer from severe psychological paralysis or become suicidal. Yet many decisors asserted it remains a significant legal consideration which can be employed in a variety of situations.
The most well-known application of this debate involved Tay-Sachs and other catastrophic genetic diseases. Adopting the more lenient approach, Rabbi Eliezer Waldenburg, head of Israel’s Supreme Rabbinical Court, allowed for an abortion up to the seventh month of gestation in part because of the torturous life the child would suffer, but also because of the severe mental anguish such a child would cause its parents. Feinstein and many others strongly opposed this, arguing that future deformities remain a moot point, especially after the first trimester when prenatal diagnosis of Tay-Sachs may be performed.
What This All Implies for the Public Discussion
Where does this all leave us with regard to abortion in the case of rape pregnancy? Naturally, choosing to raise the baby or placing it for adoption remains a viable and even encouraged option, if so desired. In fact, in a study published in “Victims and Victors: Speaking Out About Their Pregnancies, Abortions, and Children Resulting From Sexual Assault” (2000), up to 73 percent of women in this category carried their babies to term, which a significant majority choosing to raise the child. (Other studies show vastly different numbers, but even they claim that nearly 40 percent carry their child to term.)
As such, one should not assume that every rape victim wants to abort her fetus, and each case must be evaluated individually. But if the rape victim remains distraught at the prospect of carrying the child to term, raising significant fears for her mental well-being, what are the options?
For starters, the consensus of contemporary rabbinic scholars agrees that the medical treatment given to rape victims should include post-coital steps to prevent pregnancy. Given the relatively weaker legal status of a zygote as well as the question whether medical intervention at this stage really functions as an abortifacient, Orthodox scholars do not have the same qualms or dilemmas found within the Catholic Church. It remains legitimate, as a matter of ethics and health-care policy, to provide treatments like morning-after pills.
There is a similarly widespread consensus that within the first 40 days (i.e., even after the victim misses her first menstrual period), one can perform an abortion if one fears the pregnancy will cause continued mental anguish or psychological trauma. Of course, it can sometimes be difficult to make such an evaluation, as in the case of single women who get pregnant after consensual promiscuous sex and fear lasting emotional trauma and embarrassment. Yet as Rabbi Dr. Moshe Halevi Spero, an expert on psychology and Jewish law, has written, trauma from rape can lead to bona fide psychological torment covered by the “anguish” category.
In this regard, we can add another mitigating argument which undermines the third assumption of the Catholic argument in ignoring the circumstances of conception. Addressing a case of post-rape pregnancy treatment, Rabbi Yehudah L. Perilman of Minsk (d. 1896) poignantly declared, “A woman is not like Mother Earth that she may be illegally sown against her will.”
This claim, reminiscent of the Mormon argument cited earlier, recalls a striking biblical passage in which the Torah compares rape to murder. In describing why a rape victim is not penalized, the Torah declares, “But you shall do nothing to the girl, for the girl has committed no sin, for like a man who rises up against his fellow and murders him, so is this thing. For he found her in the field, and the betrothed girl cried out but she had no savior” (Deuteronomy 22:25-26).
The Torah, in short, sees rape as an act of devastating physical and mental assault, akin to murder. Now one might fully sympathize with a victim—as I’m sure Catholics and Southern Baptists do—but argue that for various reasons this sympathy does not trump countering ethical considerations. Yet it strikes me that this sentiment, along with the reduced gravity of abortions within the initial stages of pregnancy, tip the scales within Jewish law toward allowing for abortions from rape pregnancies during this earlier period should concerns be raised for the victim’s emotional well-being.
From Ethics to Public Policy
How has this nuanced position play itself out on the political and legislative level? Given the complex balance between competing moral values and the need to evaluate each case on an individual basis, Orthodox political activists have consistently favored legislation that keeps abortion legal in cases of rape and incest, which matches current Israeli law. While other aspects of this code have remained somewhat controversial, this provision has been largely accepted without protest, with Israeli government further covering the costs of the operation.
In America, the Orthodox Union’s advocacy center had repeatedly abstained from taking stances in the national abortion debate, seemingly contending that the Orthodox position does not get easily categorized as “pro-life” or “pro-choice.” Instead, it has more modestly argued for “workplace religions freedom” legislation that will allow a person to abstain from performing an abortion against his or her religious conscience.
More radically, the political wing of the ultra-Orthodox umbrella group, Agudath Israel of America, has repeatedly filed legal briefs against any U.S. legislation that argues life begins at conception or that fetuses retain the status of personhood, even as they continue to claim that the rationale behind Roe v. Wade to define abortion as a fundamental right was flawed. Their legal counsel, David Zwiebel, has defended this policy in stating that they wish to protect the possibility of an abortion in cases when a woman’s life is endangered “or when a woman’s religious beliefs require that her pregnancy be terminated.”
What cases are covered under that latter clause? They might want to protect the legal rights of those Jews who believe abortion is permitted in cases of genetic diseases. Yet I suspect they also want to ensure that if one of their adherents suffers from rape, she may be treated safely and legally. Accordingly, pro-life activists operating with monochromatic guidelines have not found political bedfellows with the Orthodox Jewish community on this issue, in spite of its generally prohibitive stance toward abortions-on-demand.
To my mind, this is unfortunate, as Orthodox Jews should ideally be joining with other pro-life advocates (religion and non-religious alike) in advocating for a more conservative approach to abortion. This, in fact, would fulfill the broader commitment of teaching the ethos of the Noahide laws to wider society. Yet Jews have understandably feared that support for the “pro-life” camp would also abandon Judaism’s more nuanced approach to this deep ethical question. Given the strident insistence of many pro-life advocates to prohibit abortion in all cases, including those of rape, can one really blame these Orthodox political groups for not joining the broader cause?
Don’t Overlook the Tragedy for the Mother
The Orthodox Jewish vote, of course, is a tiny constituency. Yet pro-life abortion activists looking to win elections would be wise to look at this example and ask themselves a basic question: If a Bible-loving people who oppose abortion-on-demand refuse to join hands with us, how can we expect to draw swing voters afraid of our stance on this controversial issue? Ultimately, what’s at stake is the willingness of pro-life advocates to make compromises in public policy to create a big-tent conservatism that can win close elections.
In this regard, Catholic and Southern Baptist thinkers might follow the example of Lord Jakobovits. A pioneer in the field of Jewish medical ethics and an outspoken participant in the public square, Jakobovits was a social conservative ideologically tied to Margaret Thatcher. When he was granted peerage, she remarked that she wished he were the Archbishop of Canterbury! In a widely-cited article written during the 1960s, Jakobovits initially wrote that abortion was only allowed to save the mother’s life, but never in the case of rape. However, in later versions of that essay, as well as in letter penned in 1982, he recognized that Jewish medical ethics had come to allow abortion in cases of rape.
What caused this change? The extensive influence of Rabbi Waldenburg clearly played a role, but I suspect another factor impacted this shift. In his original article, Jakobovits attempted to debunk many liberal approaches which he believed encroached on the sanctity of life, a trend one finds throughout his writings. As such, one finds repeated references to the infinite value of life, such as his declaration that fetuses with severe genetic defects should not be aborted.
“So long as the sanctity of life is recognized as inviolable, the cure to suffering cannot be abortion before birth, any more than murder (whether in the form of euthanasia or of suicide) after birth.” With regard to rape, he similarly declared, “The circumstances of such a conception cannot have any bearing on the child’s title to life, and in the absence of any well-grounded challenge to this title there cannot be any more justification for an abortion.”
Such rhetoric had its place in the 1960s and still remains quite valuable, even as it underplays some of the nuances with Jewish medical ethics. I suspect Jakobovits later came to understand that even in the midst of significant culture wars, one cannot overlook the personal tragedy presented by rape, including its potential ability to trump the fetus’ claim to life. While fighting broader legal and ethics battles over the status of the fetus, one can allow for certain exceptions in difficult cases without losing the thunder of one’s broader agenda.
It would, of course, be unethical and unreasonable to request such a shift from Catholics or Southern Baptists in their personal beliefs and actions. Yet pro-life advocates should ask themselves whether they can adopt—out of realpolitik considerations, if not from a place of moderate pluralism—a modest shift in public policy that would allow more Americans, religious and non-religious alike, to enter their camp. Is the pro-life camp willing to open its tents to those who deeply respect the life of a fetus but ultimately believe that the Bible compares rape, not abortion, to murder? The future of pro-life advocacy may hinge on this question.