Abortion has become one of the issues in the US election, and it has the potential to become a political issue in the near future here as well. Some anti-choice advocates, such as the hierarchy of the Roman Catholic Church, although they are certainly not the only group, are against abortion in all instances. There are many however, who recognize that at least in cases where pregnancy was forced on women, the victim should have the choice whether or not to continue that pregnancy. The primary examples are rape and incest (just another name for rape within families, but still rape).
This was brought to the forefront last week with the comments of Republican candidate Todd Akin, whose biology knowledge is severely lacking, who brought up the concept of ‘legitimate‘ or ‘forcible‘ rape as being different from other types. In other words, if the victim isn’t bruised enough, it’s not really rape. However, as anyone who thinks about the issue for even a few minutes must realize, rape exceptions are problematic and basically unworkable.
Jesse Taylor writing at Raw Story explains three arguments why these exceptions are not feasible.
Question 1: What triggers the exception?
The point of the exceptions is that the legal availability of abortion is vastly reduced – there are to be no abortions except for these carve-outs. That means there needs to be some threshold before a woman falls into the exception. If the threshold is a mere allegation to a doctor, then it’s less an exception than just the reason any woman who wants an abortion will privately tell a doctor before obtaining it. For antis, it does have the benefit of creating a lot of false “accusations”, which further serves the purpose of delegitimizing rape accusers; but it results in a lot more abortions.
The more likely trigger will be that the woman in question needs to at least press formal charges against an alleged rapist, particularly given that doctors would likely be prosecuted for illegal abortions otherwise.
Question 2: When can a woman obtain an abortion under a rape exception?
Suppose a woman has pressed charges against a rapist. Is that enough to allow her to obtain an abortion under the rape exception?
The exception is a legal method of obtaining an otherwise illegal procedure that would, presumably, constitute a felony. The doctor would have to have some legally reliable indicator that the rape actually occurred. Charges being filed would probably not be enough; the charges could, theoretically, disappear after a short investigation. Must the rapist be indicted by a grand jury? Must the rapist actually be convicted? Is there a jurisdiction in this country that could handle a rape trial in under 24 weeks?
If the woman has any right whatsoever to obtain the abortion, there has to be some cutoff where she can obtain it regardless of the legal outcome of the proceedings against the rapist.
Question 3: Does a rape exception violate due process for the accused rapist?
Here’s the big one.
An abortion under a rape exception would involve some determination that the abortion is not illegal, and is justified by the actual occurrence of a rape. The allowance of the abortion is, at least in part, a legal finding that a rape did, in fact, occur.
If an accused rapist is on trial, and an abortion for rape is allowed, then a determination critical to your guilt or innocence has already been made, potentially without full and fair process. If you admit you had sex, but contend it was consensual, the abortion is prima facie evidence that rape was committed. Accused rapists would have a strong constitutional case to block any abortion under the rape exception, unless they had somehow been convicted of or pled to the crime in less than six months.
Another exception that has been discussed is the health of the mother. In some recent cases, such as the one in the Dominican Republic, where a young woman’s cancer treatment was delayed over a debate on the potential impacts on the foetus she was carrying. Cases like this are usually criticized by all but the most zealous of the anti-choice campaigners. This comes directly back to rape, as both the physical and emotional health of the victim of rape are more negatively impacted by a full pregnancy and birth than they are by an abortion.
In situations that involve the woman’s health, the decision must be made about how serious and imminent any threats to the life of the woman would need to be to trigger an exception to any anti-choice law. As in the rape exception above, this leaves both the woman and her doctor open to charges if a prosecutor disagrees with the rationale behind the decision. Along with the potential liability and legal ramifications discussed above, in most cases, particularly where the woman’s health is directly imperilled, delays can only cause further negative impacts. These delays could result from the doctor’s need to receive legal advice, or in the woman searching for a doctor who will provide the paperwork required.
Another impact is in the racial and socio-economic disparities are emphasized in such exceptions. In both Canada and the US, race plays a huge role in the reporting of crime, the investigation of crime, and in the the prosecution, conviction, and sentencing of the accused. Access to health care is also directly correlated with disposable income. In other words, in any abortion legislation that allows for exceptions, non-whites, or those with less income will not have the same access to those exceptions, even though the impact on them will be greater.
The people who advocate exceptions for abortion in cases of rape or the woman’s health are not really pro-choice at all. Promoting legislation that restricts abortion with exceptions makes anti-choice more palatable while actually providing very little choice for women, especially those who are already disadvantaged.