Are All Abortions Equal? Should There Be Exceptions to the Criminalization of Abortion for Rape and Incest?

Given that it was the subject of my first ever blog post on Bill of Health, I am very pleased to share my new paper: “Are All Abortions Equal? Should There Be Exceptions to the Criminalization of Abortion for Rape and Incest?” which has just been published in the Journal of Law, Medicine, and Ethics (it is behind a paywall, but there is a version they have allowed me to post on SSRN that has all the text but not the formatting that can be freely downloaded).

This paper is likely to piss off people both on the Left and the Right of the abortion issue, which I think of as a feature not a bug ;), but in any event I hope will prompt a good conversation. Here is the abstract:

There was a moment in the 2012 campaign, when Mitt Romney attempted to “pivot” to the center and get away from the statements of those like Todd Akin who made comments about how in cases of “legitimate rape,” the victims’ bodies “have ways to try and shut that whole thing down.” The way Romney did his pivot was to make clear that while he was against abortion, he would, of course, make an exception for women who had been raped or whose pregnancy was the result of incest. This has become something of a moderate orthodoxy among those who oppose abortion.

Abortion should be criminalized, yes, but with these exceptions carved out.

This shibboleth has found its way not only in the public position taken by many Pro-Life politicians, but also in legislation across several U.S. states, and even the Hyde Amendment, which prohibits federal funding for abortion, makes an exception for these kinds of abortions. Many legal writers have also accepted, to some extent, this compromise position either by praising it as their own or particularly attacking those who would not make these exceptions.

My goal in this article is to put pressure on this position, that there should be exceptions for rape and incest. I will suggest that as a normative matter it may be much harder to defend than those who support the compromise think. The goal is not to argumentatively put a nail in the coffin of this position, but instead to suggest why these exceptions are a surprising place for uncontested agreement.

At the very end of this article I will examine more briefly a second stand-alone claim — if the rape and incest exceptions cannot be justified in the ways I explore, it remains possible to defend them as follows: there are good and bad reasons/motivations to have abortions, the state can legitimately judge those reasons/motivations and rule rape and incest in the “good” category, and therefore criminalize all other abortions but not these. This way of thinking about these exceptions, as providing state-endorsed reasons/motivations for having an abortion, will not only disturb some (particularly for those with libertarian inclinations) but rub up against a persistent liberal concern — freedom of thought — and threatens to introduce thought crime into the regulation of abortion. Whether one finds this problematic depends heavily on one’s political theoretical priors and one’s conception of the moral limits of criminal law.

I. Glenn Cohen

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

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