John Finnis, rape and the Nazis

Among the conservatives who desire a wide prohibition against abortion there is a case that has always merited special attention: rape. While some conservatives accept as morally uncontroversial the idea of abortion following rape, others want a blanket prohibition against such practice. This means that the latter group, if permitted, would outlaw abortion even for cases of rape. For example the United States Conference of Catholic Bishops in their Ethical and Religious Directives for Catholic Health Care Services states that:

“Compassionate and understanding care should be given to a person who is the victim of sexual assault. Health care providers should cooperate with law enforcement officials and offer the person psychological and spiritual support as well as accurate medical information. A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications that would prevent ovulation, sperm capacitation, or fertilization. It is not permissible, however, to initiate or to recommend treatments that have as their purpose or direct effect the removal, destruction, or interference with the implantation of a fertilized ovum [emphasis added].”

 and the Guidelines for Catholic Hospitals Treating Victims of Sexual Assault by the Board of Governors of the Pennsylvania Catholic Conference states:

“The deliberate destruction of an innocent living human fetus — no matter how conceived [emphasis added] — is unjustified. Sexual intercourse involved in the act of rape, on the other hand, is an unjust assault and a non-consensual act. Therefore, appropriate means may be used in treating the rape victim to prevent conception. These means, as used, may not have the effect of an abortifacient.”

The legal fight against abortion (even in rape and incest cases) stems from the (perceived) intrinsic value, or ‘sacredness’, of all human life. The standard argument is that the value of the life of the unborn trumps any other possible considerations, including how she was conceived.

It should be clear that the political outcome of this line of argument does not leave many at ease. Getting pregnant due to rape and having to bear the child because there are laws enacted that prohibit abortion is not something that draws many votes. However some conservatives (maybe trying to ease the mind of the voters?) have claimed that women should not be worried about this because the rate of rape related pregnancies is very low. For example, all the following US Republican political figures have said something along such lines when debating abortion laws:

Trent Franks has claimed that “Before, when my friends on the left side of the aisle here tried to make rape and incest the subject — because, you know, the incidence of rape resulting in pregnancy are very low,”

Todd Akin said “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”

James Leon Holmes in co-authorship with his wife wrote “concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami.”

Henry Aldridge stated “The facts show that people who are raped — who are truly raped — the juices don’t flow, the body functions don’t work and they don’t get pregnant,” “Medical authorities agree that this is a rarity, if ever.”

And finally Stephen Freind also claimed “Rape, obviously, is a traumatic experience. When that traumatic experience is undergone, a woman secretes a certain secretion, which has a tendency to kill sperm.”

To this list of US conservative politicians we must add that of legal scholar and philosopher John Finnis (and, as far as I am aware, Finnis’ claim has passed unnoticed among scholars).

There are two papers in which Finnis has asserted that “conception is much less likely to result from rape [emphasis added]” the first is in in The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Observations (p. 43 of this pdf) and the second is in Law, Morality, and “Sexual Orientation” (p. 18 of this pdf). This claim also appears in the reprinted versions of these articles in Human Rights and Common Good Collected Essays Volume III. In the collected essays we can find his claim in chapter 21. Law, Morality, and ‘Sexual Orientation’, and in chapter 22. Sex and Marriage: Some Myths and Reasons (this version changed the name from the above original).

Contrary to those discussing abortion Finnis (who, by the way, is also against abortion) makes this claim while discussing his idea of marital intercourse as a two-in-one-flesh reality. He asserts:

“For a husband and wife who unite their reproductive organs in an act of sexual intercourse which, so far as they then can make it, is of a kind suitable for generation, do function as a biological (and thus personal) unit and thus can be actualising and experiencing the two-in-one-flesh common good and reality of marriage, even when some biological condition happens to prevent that unity resulting in generation of a child.”

Some pages ahead he adds:

“But it would be more realistic to acknowledge that the whole process of copulation, involving as it does the brains of the man and woman, their nerves, blood, vaginal and other secretions, and coordinated activity (such that conception is much less likely to result from rape) is biological through and through.”

What should be said about the claim that the rate of rape related pregnancies is very low? This assertion is utterly false. In point of fact, and as one instance of the research done on the subject concludes: “Rape-related pregnancy occurs with significant frequency [emphasis added]. After Todd Akin’s claim, The American College of Obstetricians and Gynecologists issued a statement on rape and pregnancy in which they asserted thatThere is absolutely no veracity to the claim that ‘If it’s a legitimate rape, the female body has ways to shut that whole thing down.’ A woman who is raped has no control over ovulation, fertilization, or implantation of a fertilized egg (ie, pregnancy). To suggest otherwise contradicts basic biological truths.” For other proper scientific evidence, you can click here, here or here. 

From where did such idea come about; and what role do the Nazis play? The answer can be found in an excellent article in Slate (The Nazi Anatomists) by Emily Bazelon who reports that the false idea about the low pregnancy rate resulting from rape can be traced back to the work of Nazi anatomist Hermann Stieve who worked with bodies that came from the executions taking place in the Plötzensee Prison during the Third Reich.Bazelon writes

“Stieve published 230 anatomical papers. With the data he gathered pre-execution, as well as the tissues and organs he harvested and studied, he could chart the effect of an impending execution on ovulation. Stieve found that women living with a looming death sentence ovulated less predictably and sometimes experienced what he called ‘shock bleedings.’ In a book published after the war, Stieve included an illustration of the left ovary of a 22-year-old woman, noting that she ‘had not menstruated for 157 days due to nervous agitation.” Stieve drew two conclusions that continue to be cited (for the most part, uncritically). He figured out that the rhythm method doesn’t effectively prevent pregnancy. (He got the physiological details wrong but the conclusion right.) And he discovered that chronic stress—awaiting execution—affects the female reproductive system [emphasis added].”

We might conclude that as ever, and perhaps this is a futile aspiration, we might ask that any commentary on empirical cases should be grounded in adequate evidence.

by César Palacios-González






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