The phony rape exception to abortion bans

Now that the Supreme Court permits states to outlaw abortion, Republican state legislators are bitterly split over whether abortion bans should include exceptions in cases of rape. This is a pointless political fight. Laws forbidding abortion often force women to bear their rapists’ babies. If you don’t want to do that, don’t support abortion prohibitions.

For many years, an overwhelming majority of Americans have supported such exceptions. That includes most of those who generally oppose abortion. About a quarter of Americans think abortion should be illegal in most cases but want the law to make exceptions for rape.

But raped women often find it difficult to invoke them. Now that there is no constitutional protection for abortion, most state prohibitions don’t have any rape exceptions at all. The minority that do typically require the victim to file a police report. 

Most victims, however, know their assailants and many fear retaliation if they talk to the police. Criminal complaints are rare (in most such cases no one is arrested), and there are convictions in about 2 percent of cases. Most women know that rape can be hard to prove, that victims are often disbelieved and that if they tell what happened they risk being stigmatized and mistreated by their friends, family, communities and the police. That’s why most rapes are never reported. 

Some rape exceptions are unworkably vague. Mississippi requires that “a formal charge of rape has been filed with an appropriate law enforcement official” but doesn’t say who is “appropriate.” Others require doctors to verify rape without saying how they are to do it, while warning that they will go to prison if they guess wrong. This is one reason why in the states with such laws, there have been almost no abortions.

The most consistent anti-abortion position is one that allows no exceptions, ever — that entails, for example, that a 10-year old rape victim should be forced to have the baby. 

Most abortion opponents can’t stomach that. “I’m very much a conservative on this issue, but you have to acknowledge the fact that there are tragic and cruel circumstances where it’s presumptive, edging on hubris, to say that people can’t make their own decisions,” said South Carolina state Rep. Micah Caskey, a Republican who proposed an exception for rape and incest victims who are minors. But by supporting abortion prohibitions in most cases, he is already committed to that.

Caskey acknowledges that, in some cases, forcing women to have babies is unacceptably brutal. Yet he still thinks that the law can discern the women whose unintended pregnancies aren’t their fault; that legislators can accurately make life-altering judgments of women whose stories they don’t and can’t know. If there is anything that the sorry history of rape law teaches us, it is that the state is utterly incompetent to determine when women have consented to sexual intercourse. Any ban-plus-exception will err on the side of compulsion, because it is based on distrust of women’s choices.

The rape exception also has unpleasant implications. In an important study, the first sustained exploration of the exception’s history, Prof. Mary Ziegler has shown that it has often been used “to denigrate the motives and question the innocence of most women choosing abortion.” That has been true since the exception was first enacted in the 1960s: It cordoned off the most sympathetic cases, while simultaneously incorporating the assumption that most women lie. It creates a prototypical victimized woman and then treats most women as culpable because they do not conform to the prototype. 

A narrative of that kind appears to be necessary in order to justify imposing on those women the severe and (despite what the Supreme Court says) unconstitutional burdens of forced childbearing.

If you want to lower the abortion rate, there are noncoercive ways to do it, ways that might be even more effective than criminal prohibition and that would not endanger women facing medical emergencies. States could abandon abstinence-only sex education, which keeps many girls ignorant of how to contracept. They could make contraception itself more available. They could provide better financial and medical support to pregnant women, many of whom would not abort if they had better financial options.

In short, an abortion prohibition with rape exceptions is not on the menu of legislative options. The exceptions are mostly there for decoration. Here are the actual choices: Either you will force women to have their rapists’ children, or you will get out of the business of micromanaging other people’s lives. The principal attraction of a rape exception is that it helps legislators lie to themselves and to their constituents about the reality of what they are doing.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him on Twitter @AndrewKoppelman.