Tuesday, February 21, 2012

State Rape

Trigger warning.

After a great deal of public outcry, Virginia legislators are delaying consideration of a bill that would mandate raping women who want an abortion. The bill specifically would require women seeking an abortion to obtain a medically unnecessary trans-vaginal ultrasound, thus revealing to them that what's growing in their uterus is a fetus and not, say, a basketball.

Since most definitions of rape run something along the lines of "oral, vaginal, or anal penetration of a foreign object without the party's consent", and since here "consent" is manufactured by force of statute (cf., the old spousal rape exemption, where by statute a married women automatically consented to sexual intercourse), Virginia's law is perfectly accurately characterized as a law requiring the rape of women.

But you know what? Everyone's so focused on the negative; but I think that this is really an effort by Virginia legislators to be more pro-choice than they were before. Recall that even most anti-choice lawmakers purport to except from this principle cases where the woman was raped. Virginia is just trying to make that exception cover every woman seeking an abortion, by requiring that they all be raped first! This way, abortions can still be done, and the "consciences" of the men who generally can't tolerate abortion are assuaged. Sure, some women probably object to being subjected to a state-sponsored rape campaign, but hey, omelets, eggs, and all that.

You see? It all works out in the end.

9 comments:

PG said...

The "you agreed to [X] by having sex," where [X] was previously pregnancy and delivery in the manner the state deems best (women are prosecuted for prenatal substance abuse, refusing C-sections, etc.), and [X] at the moment is rape by instrument, actually is a fundamental part of the pro-lifers' view on abortion. It is far more genuine than the notion of the fetus as a person with Constitutional rights (which of course would be nonsensical if there were rape and incest exceptions to an abortion prohibition). While as a general matter the pro-life community was a big fan of the film Juno, as making abortion clinics look horrible and completion of a pregnancy and adoption look fairly easy, there also were a few conservatives who criticized the main character as clearly an immature and morally-bad girl because she'd had sex and now wasn't really living by the consequences, instead "abandoning" the baby to be someone else's responsibility.

Anyway, part of this basic disconnect is where one begins on the idea of bodily autonomy. While the most egregious example on the other side was the anonymous Republican legislator who said that the woman's oughtn't mind the transvaginal ultrasound because she'd already had sex, the one that's been said openly and with attribution is that there's nothing wrong with a mandatory, medically-pointless ultrasound being made part of the legal abortion procedure because the abortion itself is necessarily intrusive. This is about par for the course in Republican political knowledge of medicine; RU-486, used in over 20% of first trimester abortions and functioning by causing the uterus to expel the fetus, generally does not require any insertion of medical instruments.

But so it goes: in a sense we're just returning to the original (and in my opinion, true) understanding for abortion restrictions and prohibitions: people's bodies, especially women's bodies, don't belong to the individuals, but to the community or state. Disapproved uses of that body, whether in sexual practices or for abortion or suicide, should have the force of law. The notion of fetal rights has just been rigged up since Roe in order to participate in rights-driven discourse, which is why the rhetoric at times like this regresses to the underlying belief that the state has the right to force such intrusions.

David said...

To echo PG's point, Judith Thomson's "Defense of Abortion" follows the strategy of indicating that even if a fetus is admitted to be a person, ordinary interpersonal obligations do not require a woman to bring that fetus to term. The implication is, of course, that any duties or obligations are generated by another source, or a special interpersonal relationship.

The "sacredness" of sex and birth are usually cited to explain these special duties. But I think PG is correct that citing sacredness (or "specialness")is a rhetorical choice, because the idea of a state or community interest is repugnant to American sensibilities.

It is when the community interest in woman's body is so blatantly revealed that we see the backlash.

PG said...

David,

The implication is, of course, that any duties or obligations are generated by another source, or a special interpersonal relationship.

The "sacredness" of sex and birth are usually cited to explain these special duties.


I'd agree with this for Catholics, who have a pretty large body of theological work on the sacred aspects of sex. But I'm not sure it's sacredness of sex driving the views of non- Catholic pro-lifers. For these, i.e. mostly people who support rape/ incest exceptions, I suspect it's more to do with sex being something one might want to do.

That is, if one thinks that women who conceived due to rape ought to be able to obtain abortions, but women who haven't claimed rape oughtn't be able to, then clearly some sex (rape) is different from other sex (not-rape) in a way that determines whether a resulting fetus lives or dies. Evidently not all sex is sacred, at least not in determining the pregnant woman's obligation to the fetus.

My ideas about the non-personhood of the fetus, and abortion restrictions/ prohibitions being due to a state or community interest in individuals' bodies, are significantly influenced by looking at pre-Roe abortion laws. Not only did they not punish women seeking abortions like those women were setting up a contract killing, the laws weren't even in the homicide sections of state legal codes. Instead, the abortion prohibitions generally were in the sections about offenses against public health or morals, alongside fornication, sodomy, obscenity, etc.

For example, the Idaho penal code of 1901 lists abortions in Chapter CCXV, "Crimes against chastity, morality and decency." Other items in that chapter are bigamy, incest, crimes against nature, opium smoking, obscene books and prints. (Idaho was among the states that said, "At common law to kill a child in its mother's womb is no murder; but if the child be born alive, and dies after birth through the potion and bruises received in the womb, it is murder in the person who administered or gave them.") The Alabama code of 1852 punished homosexual sex and bestiality with a minimum of 8x as much prison time as that for abortionists.

I don't think the real reason that most people who oppose abortion do so has changed much since 1852, or 1901, or 1943. They're mad that the Supreme Court decided to invalidate those laws, and because the Court's premise for doing so was that of a woman's right, the abortion prohibitionists feel obliged to speak the language of "rights talk." If Blackmun thinks rights are so important, very well -- a notion of fetal rights will be manufactured out of whole cloth in order to participate in the debate. I don't think "the idea of a state or community interest is repugnant to American sensibilities," exactly, so much as that this interest has been increasingly rejected by the courts as a rationale for infringing on individual liberty in the non-commercial use of one's body.

David said...

PG -

I'm not a lawyer, but I'd like to offer an alternative explanation.

I still think that a state interest in a person's body is repugnant to American sensibilities.

What I think has changed (culturally, not legally) is the understanding of women as persons as opposed to property. The VA rape law is faced with a dilemma - either treat women as sub-human, or enforce a state interest in women's reproductive system. The former is backwards, the latter is repugnant.

In conversation, pro-lifers have confirmed to me that most support for rape exceptions are on rhetorical - not moral - grounds. Of course, that's anecdotal.

PG said...

I still think that a state interest in a person's body is repugnant to American sensibilities.

But how so? For example, how can one justify a legal prohibition on suicide unless the state has an interest in our bodies? Or prohibitions on the abuse of either home-grown or legally-sold drugs? Or to take something that doesn't seem to have a respectable lobby to end the prohibition, the criminal ban on bestiality?

In conversation, pro-lifers have confirmed to me that most support for rape exceptions are on rhetorical - not moral - grounds. Of course, that's anecdotal.

I assume you mean rhetorical in the sense that they'd actually prefer to ban all abortion categorically, but in the interests of being politically appealing they'll claim to be OK with the rape exception. But that would seem to be people who are concerned about being politically manipulative actors, not people whose involvement is purely in expressing their own preferences and not in trying to negotiate political compromises. I've certainly encountered people of the latter type; to cut-and-paste directly from a Facebook discussion about this Virginia law: "and although i am not for abortion in most cases, i cannot imagine what a rape victim would experience going through a vagina ultrasound. ... And although I am mostly against abortion, I am totally against this and cannot imagine what a young girl or a rape victim would have to go through."

David said...

PG,

"For example, how can one justify a legal prohibition on suicide unless the state has an interest in our bodies?"

Such prohibitions are toothless, unless they've devised a way to punish the dead.

"Or prohibitions on the abuse of either home-grown or legally-sold drugs?"

In cases where such drug abuse does not effect others, I think people are inclined to want to see enforcement limited. However, that seems rare.

Of course, instances in which locking up drug abusers suits other purposes - like locking up black people - sensibilities are altered, because those being locked up were considered sub-persons.

"and although i am not for abortion in most cases, i cannot imagine what a rape victim would experience going through a vagina ultrasound. ... And although I am mostly against abortion, I am totally against this and cannot imagine what a young girl or a rape victim would have to go through"

A position that asserts that two wrongs make a right are, I find, pretty unstable when one points this out.

I really doubt that sort of person is anti-choice. More likely, they're pro-choice, but want to discourage abortion and take a dim view of it. Mostly, they're the morally superior sort who never think that they'd be in a situation where carrying a baby to term would be bad for them, unless they were raped.

If such people had to face the reality that the line between rape, coerced sex, and voluntary sex is thick and fuzzy for less fortunate women, they'd change their tunes right quick.

PG said...

Such prohibitions are toothless, unless they've devised a way to punish the dead.

As with most criminal prohibitions, I think the attempt is also a crime. Moreover, one can punish the estate of the decedent, e.g. by preventing it from recovering money in a wrongful death lawsuit against, say, the gun manufacturer whose product was used to commit the suicide.

In cases where such drug abuse does not effect others, I think people are inclined to want to see enforcement limited.

I doubt that -- there were plenty of people calling for Rush Limbaugh to be locked up for abusing oxycontin, even though there's no substantiated claim that he harmed anyone else or that his money was funding Colombian terrorists.

A position that asserts that two wrongs make a right are, I find, pretty unstable when one points this out.

I really doubt that sort of person is anti-choice. More likely, they're pro-choice, but want to discourage abortion and take a dim view of it.


It depends on whether you think abortion in itself is the wrong, or if it's wrongness depends on circumstance. Coming back to my first comment, if you think what's sufficiently morally wrong about abortion that it can be made illegal is the failure to live by consequences, up to your responsibilities, etc., then having an abortion because you've been raped isn't wrong; having an abortion because you're voluntarily having sex, and presumably aware that sex can make babies, is wrong. Thomson's own thought experiment plays this out: she begins with the idea that you've been involuntarily attached to the violinist (i.e. raped) to establish that even if someone clearly is a person, you aren't obligated to life support him just because others want you to do so.

Where it gets trickier would be subsequent hypotheticals in which the violinist offers free tickets to see him perform, but warns that one member of the audience will be selected to provide 9 months of life support. If you choose to attend the concert, the reasoning of the rape-exception pro-lifer would go, then you chose to take the risk that you'd be selected, and you have no right to refuse to provide the life support.

David said...

"Thomson's own thought experiment plays this out"

That thought experiment merely sought to show that a person's right to life doesn't generate an obligation on the part of another to maintain that life. It has nothing to do with rape. Even were one hooked up voluntarily, that fact wouldn't change (unless one promised not to become unhooked, but that's a completely different scenario).

PG said...

It has nothing to do with rape.

See Thomson's "A Defense of Abortion": the 3 paragraphs above the bolded "1" and sections 4-8. Particularly in 8, Thomson emphasizes that she is not making an unqualified defense of abortion, and describes a late-term abortion of genuine "convenience" that she'd deem morally indecent.