Abortion and the Law of Innocence

As states pass increasingly strict abortion laws in a bid to reverse Roe v. Wade, abortion opponents have suddenly abandoned exceptions for cases of rape and incest. Developing the first legal history of rape and incest exceptions, this Article argues that these exceptions open a window into issues of guilt and innocence that define the constitutional jurisprudence of abortion.

In recognizing a right to abortion, the Court portrayed women as victims—of the physical burdens of pregnancy and societal forces governing parenthood. But as the history of the rape and incest debate shows, the rhetoric of guilt and innocence is central to the case to overturn Roe. Seeking to dismantle abortion rights, pro-life forces have proposed a hierarchy of innocence. This hierarchy describes guilt as inherently relative, not an absolute but a matter of degrees and comparison. In this hierarchy, fetal life is supremely innocent, regardless of the surrounding circumstances both because an unborn child lacks agency (and therefore responsibility for any decision) and because that child has not yet made any choices, good or bad, for which to be held accountable.

As the history of the rape and incest exception reveals, ideas of guilt and innocence have already destabilized protection for abortion. To shore up constitutional protection, supporters of abortion rights have to portray women in a different light—as trustworthy and autonomous rather than vulnerable to forces beyond their control.

a. Mary Ziegler is the Stearns Weaver Miller Professor of Law at Florida State University College of Law. She would like to thank David Cohen, Michele Goodwin, Jennifer Hendricks, Jessie Hill, Maya Manian, Seema Mohapatra, and Laura Weinrib for agreeing to share their thoughts on this piece.

The full text of this Article is available to download as a PDF.