WHY NOT KEEP LEGALIZED ABORTION FOR RAPE AND INCEST?

by Carolyn Gerster, M.D. Chairman of the Board, National Right to Life Committee
INTRODUCTION

I have great empathy for those individuals who, out of a sense of compassion, wish to add rape and incest to the traditional ‘life of the mother" exception clause for legal abortion. At first glance. it appears callous to impose on the innocent victim of a violent sexual assault the added humiliation of nine months of pregnancy and childbirth.

This sympathetic view was held by many Americans and reflected my own feelings prior to my involvement in the abortion controversy. In fact, and early National Opinion Poll in 1955 found tat while 83 per cent of the 481 persons polled opposed abortion for the unwed mother, 80 per cent for financial reasons, 49 per cent of those questioned were in favour of abortion for the rape victim.

The humanitarian exception clauses appeared in the first proposed changes in the traditional abortion laws recommended by the American Law Institute. This revision was the model for the 1957 Colorado statute.

The proposal of the American Law institute, justified abortion in case of:

  1. Substantial risk to the mother's physical or mental health.
  2. Grave foetal deformity.
  3. rape, incest and other felonious intercourse (including illicit intercourse with a girl below the age of 16).

The Colorado revisal law sounded reasonable and human. Yet, the day that the State considered an exception other than the defence of human life, abortion on demand became a foregone conclusion.

Just as there is no such thing as "a little bit pregnant" or "a little more equal" there is no such thing as "a little human". The unborn child is either a living human being or a meaningless bit of protoplasm. There are no degrees of humanity.

DEPARTURE FROM PRINCIPLE

In Colorado, in 1957, for the first time in our nation's modern history - since the abolition of slavery - we depart from the principle that the taking of innocent human life was permissible only as the inadvertent result of an attempt to save human life - that is in sell-defence (either in a personal or collective sense). There were abuses of this principle, certainly - defensive wars that were not defensive - racial injustice - the inability of the poor to obtain legal counsel. But the intent of equal protection under the law remained constant.

In 1967, we witnessed the first subtle change. It was now permissible to take a life for a social or an economic reason. Therefore, it logically follows that this unborn child must be regarded as "less than a human being".

John Updike observed that "death once invited in, leaves his muddy footprints everywhere". We opened the door to "a little killing" in Colorado. We took that first difficult step. The acceptance of de facto abortion on demand to term and, indeed, infanticide became only a matter of time.

PREGNANCY FROM RAPE

Eliminating the cases of freely consented intercourse with a minor (statutory rape), what is the reality of pregnancy from forcible rape? Like all acts of violence, rape is increasing. There has been a 112 per cent rise in reported cases in the past twelve years. Interesting enough, as in the battered child, the most rapid rise has occurred after the passage of permissive abortion laws. The problems created by rape are not solved by abortion.

It is now an historical fact that the actual objective of the proponents of the relaxation of the abortion laws, was the elimination of all abortion laws. Emotional arguments such as rape and incest were used as a wedge to gain sympathy for the abortion cause.

Once abortion is regarded as an acceptable medical procedure and a solution to a social problem, there can be no logical barrier to abortion on demand.

The rationale behind relace laws for ‘certain cases' is based on the denial of the humanity of the unborn child.

By allowing abortion for rape we abandon the only principle by which we can resist abortion on demand. The unborn child is a living human being - why should he not be regarded as a legal person? Once we abandon that principle, the law may be distorted and ultimately abandoned.

There are, oddly, no national statistics on the number of pregnancies from unconsented intercourse. We may, however, take a representative year, 1967. there were 27,100 assaults with rape or intent to rape reported by the FBI Crime Report. Of these 18,000 were recorded as forcible rape (labial penetration with or without emission, whether interrupted or not).

The ovum can be fertilised for only 24 hours after ovulation. The sperm remain viable for only 48 hours. in reality, the possibility of fertilisation, as stated by Dr Guttmacher (under the most optimum conditions), exists from two days prior to ovulation to one half day after (2¼ days during the 28 day cycle). Statistically, the chance of rape during fertility would be 10 per cent. The rate of pregnancy from unprotected (consented) intercourse between fertile individuals has been estimated as three per cent.

PERCENTAGE USE INVALID

This figure of three per cent (540 pregnancies) for 18,000 rape cases cannot be used for a variety of reasons:

  1. Even with penetration, ejaculation may not have occurred or may have been interrupted.
  2. Rape victim are in an age range from infancy to 100 years. Only an unknown per cent fall into the fertility range of 12 to 50 years of age.
  3. Some victims are sterile or have had a tubal ligation.
  4. An unknown number of fertile women are on contraceptive pills or have an LUD and are thus not "unprotected".
  5. The age of the rapist has been recorded as 12-80 years. He may be sterile or have no emission.
  6. An increasing number of rapists have had vasectomies and;
  7. The most important factor in the rarity of pregnancy from forcible rape is that there is very firm evidence that the severe emotional trauma prevents ovulation (or implantation).

In a macabreaenvironment during the Third Reich, scientists sent women about to ovulate to a mock execution in a gas chamber. An extremely high percentage of the woman failed to ovulate during that cycle.

The second documentation for the suppression of ovulation was the rarity of pregnancy among the young Catholic nuns and female Protestant missionaries raped by marauding soldiers in the Congo. Those about to ovulate, did not.

For the above reason, pregnancy even from untreated rape is rare. The captain of the Sex Squad of the Washington, D.C. metropolitan policy, V. Edward Tate, was able to report only three pregnancies from forcible rape in fifteen years.

CORRECT MEDICAL TREATMENT

Pregnancy after correct medical treatment of rape is zero.

This is substantiated by the documentation of 3,500 cases of treated rape in Minneapolis and St Paul over a ten year period, and 1,000 rape victims treated with diethyistilboestrol and reported in the M.A.M.A., October 1971. There were no pregnancies from the total of these 4,500 cases.

The most common made of action of diethyistilboestrol, now the usual treatment F or rape cases that are promptly reported, is to suppress ovulation, rendering fertilisation impossible during that menstrual cycle. And in view of the recent publicity given to the findings that DES has caused cancer of the vulva in daughters of women who were treated for threatened spontaneous abortion (miscarriage), it should be noted that danger exists only for the pregnancy during which the DES was given. The large dosage given in rape cases prevents 100 per cent of pregnancies from rape. Since it is only the child in uterus at (he time the DES is given which would be affected, patients need not fear a threat of cancer to subsequent children.

Despite the availability of treatment, only an estimated 30 percent of rape cases are reported. Much of this failure is due to lack of public education and the improper handling of the rape victim.

BRITISH TEST CASE

Does pregnancy, however rare, still occur among these unreported cases? Of course it does. The most celebrated case was the 1938 trial of Dr Aleck Bourne, an eminent English gynaecologist, who performed an abortion on a 14 year old girl who had been gang raped by a number of horse guardsmen. Dr Bourne made this a test case because he honestly believed that the law should permit those abortions in which the doctor acting in good faith, believed that the pregnancy would result in sever mental or physical damage. This plea was made 37 years ago, before the medical and contraceptive advances of today. However, the so-called ‘Bourne principle" was the basis for the 1967 legalisation of abortion in England for a myriad of social reasons and led to abortion on demand. Aleck Bourne was so appalled by the result of what he had envisioned as a provision for a very limited number of abortions for ‘hard cases' that be became a founding member of the Society for the Protection of the Unborn Child in 1967.

This emphasised the wisdom of the legal adage hard cases make bad laws.

As Dr Jack Willke has pointed out .‘Laws must speak to the general norm. Judges have always allowed certain exceptions to laws or to punishment out of mercy for a hard or tragic case. To our knowledge, no physician has been prosecuted in die United Stated or Canada for doing an abortion in such cases though the law forbade it.'

From the so-called humanitarian': exception clause of the American Law Institute we have progressed to the annual killing of an estimated one million unborn children in eight short years (United Stales).

IRREFUTABLE ARGUMENTS

In the final analysis, there are two irrefutable arguments against the legalisation of abortion for the rape victim:

1. Pregnancy from reported medically treated rape is zero.
2. Unreported rape - after all evidence of penetration has disappeared and without corroborating witnesses. 3. cannot be proved rendering the law unenforceable.

If the court were to accept the statement of the mother weeks or months after the alleged assault, we would be faced with the all too frequent late abortion done now after 28 weeks for rape. A recent example is the death of a 31-32 week old infant girl on 19 March 1974, in Pittsburgh. A 27 year old married woman whose husband had a vasectomy, requested an abortion, claiming to have been raped in September 1973. The request was refused by four physicians at Magee Women's Hospital after the gestation age of the foetus by sonography was estimated up to 31 weeks. A vaginal hysterectomy was done by Dr Leonard Laufe, a well known abortion proponent, on 19 March 1974.

There is very substantial evidence, including a three minute film sequence that the baby girl was born alive and, as in the Edetin case, not resuscitated. Whether the baby girl was born alive or not is a moot point in the light of medical ethics, the baby was only eight or nine weeks premature and clearly alive a few minutes before the abortion. She would have had an excellent chance of survival in any neonatal intensive care unit. This was clearly infanticide. Dr Laufe was acquitted by a coroner's jury and has never been brought to trial elsewhere.

A WOMAN'S REACTION

In conclusion, 1 am not in any way minimising the physical or psychological damage of rape. As a woman, I am more cognisant than any man, that rape is not a sexual act but the result of a violent and destructive compulsion to humiliate the victim.

I am angry when it is suggested that women invite the assault by their manner or dress - that women actual enjoy rape.

I am angry when I learn that many women will not bring charges because the past sexual history of the victim is admitted as evidence by the defence attorney, or when I read that only 16 percent of the apprehended rapists are convicted by the courts.

I am angry when I realise that most hospitals in the United States still do not follow proper procedure for collecting medical legal evidence or when I hear of cold and unsympathetic treatment of the victim by hospital staff, police or family.

I am angry when I realise that there are too few assault centres with experienced staff to explain the need for loving support to the victim's parents or husband, or when I learn that there are almost no facilities for long-term psychiatric follow-up of the victim whose symptoms of apprehension, self-doubt, guilt, disorientation, nightmares, phobic fears and inability to enjoy normal sexual relations may continue for months or years.

Pregnancy from rape is rare but the other results of rape - venereal disease, loss of self esteem, physical injury, permanent neurosis and disruption of the family - are not rare.

Legalising the destruction of the child will not apprehend or convict the rapist nor heal the emotional scare of violent assault.

HOW TO HELP VICTIMS

Those who really want to decrease the incidence of rape, and are sincerely interested in the welfare of the victim should consider these positive solutions:

  1. Legislation should be enacted to provide severe penalties for conviction of rape with the provision for psychiatric rehabilitation so that the rapist will not be returned to society unless it can be reasonably ascertained that he will not repeat the crime. The privacy of the victim (including the details of her past sexual life) must be assured.
  2. We must provide specially trained Personal Assault Squads (including women officers) sensitive to the emotional needs of the victim and aware of the evidence necessary to document and prosecute the rape case.
  3. Crisis Assault Centres within the hospitals of all cities should be specially staffed to provide (in privacy):
  4. Immediate care of injuries and their description. A complete physical examination with assessment of the emotional state of the patient and alleviation of psychological damage.
  5. The proper medico-legal documentation for the law enforcement agency, including collection of pubic hair, identification of mobile sperm (with the realisation that many rapists have vasectomies negating this evidence) slides and cultures of the cervix, vulva, anus, mouth, vaginal swab for acid phosphatase and serology.
  6. Photographs and collection of clothing to be submitted to the police.
  7. Prophylactic antibiotics for syphilis and gonorrhoea. Gonorrhoea re-evaluation to be repeated in one week. Serology to be repeated in six weeks.
  8. Large dose of oestrogen to prevent pregnancy.
  9. The collected evidence, sealed and witnessed, together with the history and physical examination to be given to the officer and delivered to county crime lab.
  10. Counselling (on site) of family and victim by staff social workers and trained volunteers (often effectively done by a woman who has herself had the past experience of sexual assault) with additional visits scheduled at appropriate intervals.
  11. Facilities available for long term psychiatric follow-up if needed.
  12. Widespread education programme through schools, clubs, churches and the media to alert women of the availability of the Crisis Assault Centre, and instruction in avoiding physical assault.

An Assault Crisis Centre has been established at the University of Arizona and a Personal Assault Squad is in operation in the Phoenix police department. This programme has been well outlined by Dr Joseph W Mansa, Jnr., at the 84th annual meeting of the Arizona Medical Association and appeared in the August 1975 issue of Arizona Meedicine. Similar programs should be adopted throughout the nation.

Abortion is not a solution to a problem, but the refusal of society to look for a solution.

What of the rare pregnancy from rape? I recall an example of such a case in Ethel Waters beautiful autobiography, His eye is on the sparrow' where she reveals that she, herself, was the result of the rape of hie 13 year old mother at a time when treatment and care were unavailable. Her mother's love and Ethel Waters' value to society were not diminished by the circumstances of her birth.