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by John Walker
Libertarians for Life

Abortion in the Case of Pregnancy Due to Rape

by John Walker
Libertarians for Life
Copyright 1993, 1998

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This is a draft, so your comments are welcome.

Let's begin by briefly summarizing what has to be assumed by a discussion of abortion in the case of pregnancy due to rape.

  1. There is no right to initiate force, that is, to violate rights, to commit aggression. (Force is permitted in defense, not in aggression.) That's presumably a given among libertarians. If someone disagrees, that's the issue we should be confronting.
  2. The preborn are human beings -- persons with rights. If they're not, then there can't be any inherent aggression in abortion. We need not worry about so specific a case as pregnancy due to rape.
  3. Under justice, there's a crucial difference between killing and letting die.

Conceding 1) and 2) -- if only for the purpose of discussion -- we've already conceded that there's no right to deliberately kill the preborn child as a matter of choice. Even if one views the child as a trespasser, trespass is not a capital crime, and people accused of such crimes are entitled to due process. The only permitted response would be to remove, or "evict", the kid -- not shove them through a meatgrinder. Yes, the kid may very well die from lack of sustenance, but the fact that someone is certain to die does not give us the right to kill them.

  1. Parents owe care and support to their children. If they don't, then the mother can "evict" her child anytime she wants. There's no need to consider how the pregnancy occurred.

But there's an obvious difference here. However we describe parental obligation, one essential factor of it is that the act of conception is voluntary for the parents, not for the child. In the case of pregnancy due to rape, it is voluntary for neither the child nor the mother.

Pregnancy due to rape acts against the woman's liberty. In some sense, it's a perpetuation of the aggression of the rapist. Regardless of the practical problems of pregnancy, rape is a major trauma, and the pregnancy complicates that still further.

Not yet a technological way out

At least right now, moreover, pregnancy due to rape is not a case where we can "negotiate" a practical, win-win solution -- where the woman is free of any burden to care for the child, and where the child's life is saved.

Perhaps technology will be able to offer a practical solution in the future. Safe adoption is permissible in the normal case of parenthood; it is certainly permissible in the case of pregnancy due to rape. With advances in technology, "prenatal adoption" may turn out no different from any other adoption.

That will be a way to avoid our practical dilemma. Until then, we have to confront it.

What do we do when aggression places us in such a situation?


I'm not crazy about analogies, but some people like them, and I can think of a few.

Let's imagine first a case where you are in the position of the fetus. You are knocked out and kidnapped; your captor hides you on the plane of an innocent third party. She, the unfortunate pilot, doesn't discover you until you come to at 10,000 feet. Your presence has been forced on her without her knowledge or consent. She states plainly that you don't have any right to be there, and she wants you out. Do you have the obligation to jump out? Or to let her push you out? Or does she have the obligation to land in a safe place before she makes you leave?

In a more complex one, you are on a mountain, and I attack you and throw you into a place filled with rocks that will tumble down below if given a push. The only way you can leave that spot is by causing a landslide. On a perch below is someone else I also forced there. If there's a landslide, their perch will be destroyed and they'll fall to their death. There is no way for your calls for help to be heard; you have to wait until you are discovered missing and a rescue party is sent. Let's assume that you are in no danger; one of your hobbies is to be a survivalist; you know how to attract game birds. You are able to live off them until found, but that will take nine months. The other person is also able to survive because your efforts to attract birds will inevitably attract birds to their perch, too.

Does your right to liberty include a right to push the rocks out of the way and cause the death of the other person?

The libertarian principle is, if A harms B, that does not entitle B to harm C. Both the pilot and the rape victim still retain the normal obligation not to intervene in an ongoing situation so as to cause an innocent person to die. If the child dies due to the woman's intervention, she, not the rapist, is the proximate cause of the child's death.

And let it be noted that there is a problem even in cases where continued positive effort is called for in order to avoid causing harm. Let's say I lock you in place with a gun in your hand; the hammer is cocked, held back by your thumb. If you ease the pressure, it fires and kills someone else also locked in place. Do you have the right to ease the pressure?

In another case, I've put you with your hand on a button. If you ease the pressure there, you cut off the current that is powering an elevator's safe descent: the elevator will then just drop, almost certainly killing those within.

In the one case, your effort is needed to maintain a set of normal, safe conditions; in the other, to prevent unleashing an explicit attack. Either way, withdrawal of such effort would implement an aggression.

There are obviously boundaries to such issues. Can you keep your hand firmly on a button or a trigger indefinitely? Obviously not. If you were about to be killed by someone else, would you have the obligation under justice to stay in place and let yourself be murdered? Hardly. But it seems in at least some cases we may be obligated to tolerate some injustice to ourselves in order to avoid committing injustice to others.

But before pursuing that further, what if we say the woman does have a right in principle to remove (evict) the fetus regardless of the consequences?

Acting as the rapist's "agent"

Libertarians would generally agree that we have no pre-existing obligation to meet the needs of others (absent contract, having committed aggression, etc.). LFL's argument in favor of parental obligation reflects the fact that parents cause the needs of their children by voluntarily causing the children to exist in a state of dependence. The lack of such voluntary causation is why, above, I conceded that the mother who conceived due to rape does not have the normal obligation parents have to their children.

So, it would appear as if she could simply cut off the sustenance her body is providing, remove the child, and that's that.

It is not, however, so simple: If she has no parental obligation to the child, that's not true of the father, the rapist. His parental obligation is intact. He has the obligation to provide care and protection to the child, just as any ordinary parent. However, in effect, he has been grossly negligent to the child. It's just as if parents had forced their child on someone, who would therefore almost certainly be unwilling to take care of the child.

In the case of rape, the father has placed the child totally and utterly within the power of the mother. He has committed an immediate act of aggression against the woman. But to the extent the woman's actions harm their child, to that extent the rapist has also aggressed against the child.

The woman herself does not have the normal parental obligation to provide for her child -- although she still has the universal obligation not to aggress against the child. She obviously has no right to deliberately kill the kid; but also, she may not act as someone else's agent of aggression.

The problem is that in withdrawing the sustenance, by simple removal, she acts as the agent of the negligent father. She exercises the power the father has given her. Her withdrawal of sustenance will render him guilty of an explicit act of aggression against the child. She brings it about.

For the mother to cut off sustenance, she must actively intervene in the situation. Unlike someone who sees a kid deposited on the church steps, she is not able merely to sit on her hands. Under libertarian principles, she would have the right to sit on her hands; but in order to cut off sustenance, she actually has to go in there and intervene in the biological process. Even though cutting off sustenance can be rationalized as passive, it is in fact active. And she is executing the power thrust upon her by the father; she is actively behaving as the agent of his aggression. She doesn't have the right to do that; no one does.

Trapped between aggressions

The dilemma for both her and the rest of us arises from the fact that she is cornered between two acts of aggression. If she continues to carry the child, to some extent she perpetuates the aggression of the father against herself. If she cuts off sustenance, she initiates the father's aggression against the child.

How do we deal with this?

One principle to keep in mind is that it is less evil to suffer injustice than to commit injustice. And we can also note that the evil of the forcible provision of sustenance is less than the evil of causing the child's death.

Both of those responses, however, are addressed to the woman. What about the rest of us?

If the woman decides to withdraw the sustenance, is anyone going to do anything about it? Bystanders have the right, presumably, to act in defense of the rights of a victim of aggression. But this is not a simple case of a parent (the father, the rapist) endangering a child. This is a case where the parent in question is also committing an on-going aggression against the other parent, the woman.

For us to intervene, then, is not simply to intervene against the aggression against the child. Necessarily, our intervention to protect the child would also have the consequence of perpetuating one element of the father's aggression against the mother, the woman.

So where does this leave bystanders, those who would act in the child's defense?

For the bystanders, one question will be, which is the greater aggression? We, too, like the mother, are confronted with a choice between injustices. Assuming that her pregnancy has not turned life threatening, etc., the facts seem to be that causing the death of the child would be the greater aggression.

Important differences

In all this, it sounds as if the raped woman has the same obligations as parents who conceive voluntarily. She presumably has to carry the kid to term -- just like the mother in the normal case. While it is true that the kid can be adopted, voluntary parents can put kids up for adoption, too.

What then are the differences?

First, we must at least make one point about our relation to the problem: While it seems that we do have the right to defend the child, the mixed nature of this situation means that by doing so, we would incur obligations to the mother. In other words, someone who would intervene to save the life of the child is also obligated to provide means of support for the woman, so as to ameliorate to whatever extent possible the presence of the father's continuing injustice against the woman.

That's not the case in intervening to prevent someone from skipping out on a debt. That's not the case in intervening to prevent parents from dropping their kids in the woods.

Next, adoption is not entirely "optional" for normal parents. They have the right to seek others who wish to care for their children. But if they fail, they've still got the obligation.

The rape victim, however, is restrained only insofar as she is acting as the agent of the father. She is his agent only in so far as she is uniquely empowered by the father.

Obviously, when the child is born, she loses all uniqueness; if by doing nothing she effects an injustice by the father against the child, then so does everyone else! The earlier that others can step in without endangering the child, then the earlier she loses her unique empowerment by the father, the earlier she is no longer acting as his agent. If she is obligated, so is everyone else; and we cannot force others to fulfill our obligations.

The underlying threat to the victims

Finally, it must be noted that one element in the woman's desire to be rid of the child has nothing to do with either her, the child, or even the rapist. The victim of rape is frequently seen by those around her as if she were the criminal.

It's the double victimization of rape. In many segments of society, for the woman to carry the child to term is to admit "guilt". The same forces that dismiss the significance of rape also demand abortion as a precondition of recognizing any wrong done to the woman: if she doesn't want the kid dead, if she's not willing actually to kill the kid, then she wasn't "really" raped.

Children born of rape, also, are frequently treated as if they were the guilty ones.

Such social victimization is, at least, one point that all of us, regardless of our positions on abortion, should recognize as a threat -- against the woman, against the child, against what it means to be a person with rights.

LFL explains and defends the libertarian case against abortion choice. Our reasoning is expressly scientific and philosophical rather than either pragmatic or religious, or merely political or emotional.

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