 |
| Abby Hafer |
How so? First, there is the problem that rape exemptions essentially punish women for having sex voluntarily, as though this is punishable for some reason, even if the embryos themselves are exactly the same. Since protecting the embryos is supposed to be what abortion bans are all about, this distinction is mysterious.
Second, there is the problem that, in states with abortion bans, the reality is that all the abortion clinics close, so abortion cannot be had in that state anyway, which renders the rape exemption meaningless.
Third, there is the problem that most states with these exemptions require a police report to have been filed. Unfortunately, many rape victims know their rapists and fear further abuse from them if they have the audacity to file such a report. Further, excellent research reported in the Journal of the American Medical Association shows that far more rapes are committed than are ever reported to the police. This means that exemptions, in reality, do no good for the vast majority of their supposed beneficiaries.
Then we get some complicated legal questions.
Consider the following problems:
First, let’s start with the complication of defining rape. What would be the rule for a woman who is under the age of legal consent? Many cases of incest fall into precisely this category. Would any pregnancy resulting from the rape of an underaged woman be automatically covered by the rape exemption? Anti-abortion activists should have to clarify their position.
Second, there are still more complications having to do with filing police reports when this is required for the exemption. Specifically, what must happen after the woman files the report?
Suppose a woman makes a rape complaint to the police, but it does not result in a conviction, but she has already had the abortion? Is the accusation alone enough? What if there is an initial conviction, but the conviction is overturned? After all, court cases can drag on for years, and abortions can only take place within a very limited period, even when legal. Shall a two-year-old child watch Mommy go to jail for an abortion she had three years ago when Mommy got raped but the courts hadn’t made a decision until now? How many years will Mommy get for this? Would a politician support criminal liability for the woman in this case?
Third, there are the complications for doctors. For instance, what evidence would a doctor need to require before performing an abortion? Would doctors be potentially liable?
After all, abortions must be performed in a timely manner. The time window for abortion is shorter still in states with bans, even for those being given an exemption for rape. On the other hand, gathering evidence for a rape could take more time than the abortion window allows.
Also, who would do the investigating? Would doctors have to take time out of their busy days to do this investigation? Would they hire others to do this? Who would be considered to be a trustworthy investigator? Who would pay for the doctor’s investigation? What evidence would be considered sufficient?
How would doctors be protected, or would they simply have to risk fines and possible incarceration every time they performed an abortion because a woman said she had been raped? Again, what evidence would be seen as sufficient to protect the doctor?
Fourth, let’s consider a really complicated case. But before going further, let me point out that the number of rapes committed in the United States each year is vast. So vast that almost any situation that can be imagined, no matter how seemingly improbable or hypothetical, has probably already taken place in the real world or will take place at some point.
So — what if a woman has consensual sex with her partner and is later raped by someone else? How will she prove that the pregnancy is the result of the rape rather than the consensual sex? How would this be accomplished? Would a DNA test be required? Would a DNA test be required of her partner, who has committed no crime? Of the embryo while in utero? How much time will this take? What if a woman has several partners? Would there still be enough time to have an abortion after all these tests have been done? How will legislators, lawyers and judges handle that one? Because sooner or later, they will have to.
Unfortunately, anti-abortion legislators, opinion-makers and their enabler journalists do not want to consider any of these problems, because they point out the essential fallacy of rape exemptions to abortion bans. The fallacy is that these exemptions actually work. That is, that if a woman suffers a rape and wants an abortion, then she can get one. For the vast majority of cases, this is not true.
Again — what if a police report is filed, but a conviction is not obtained? Or is not obtained soon enough? Or is later overturned? What if the court case takes so long that the abortion has necessarily already taken place? What if the doctors couldn’t gather sufficient evidence to protect themselves before the time for performing an abortion had already elapsed? What if a woman has sex with her partner before the rape takes place? After all, women with partners often have sex with them.
These obvious complications make my case clear. Rape exemptions don’t work, in large part because they can’t work. They are not designed to work — that is, they are not designed to provide help to a person who is pregnant due to having been raped. What they are is a tiny shadow of a cover-up for politicians who don’t want their full cruelty to be exposed. But the rape exemptions themselves are meaningless.
Many conservative U.S. politicians like to say that they are the ones who are willing to make the “tough decisions.” What they really mean is that they are willing to make decisions that are tough on other people while leaving themselves unscathed. Abortion bans fall into this category. The politicians get to appear to be tough and righteous while visiting the consequences onto women of reproductive age who don’t have money and are unable to travel out of state.
The only way around this nonsense is to leave the decision about getting an abortion up to the person who would actually have to carry the pregnancy. That is to say — leave the decision to the woman.
This is the fourth part in a series. Part one: Rape exemptions to abortion laws, or why women shouldn’t have sex for fun. Part two: More reasons why rape exemptions to abortion laws don’t work: Access. Part three: Exemptions to abortion bans: More reasons why they don’t work — police reports.
Dr. Abby Hafer is a biologist, educator and writer with a doctorate in zoology from Oxford University. She teaches human anatomy and physiology at Curry College. She is the co-author of Bill H.471, a bill in the Massachusetts legislature that requires that all science taught in public schools be based on peer-reviewed science. Learn more at professionaldebunker.com and reach her at ahafer@curry.edu.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at Peter.Carter@LexisNexis.ca or call 647-776-6740.