How Would A Rape Exception Work? (Hint: It Wouldn’t)
Irin Carmon wrote a great piece about how rape exceptions make no sense in the choice debate; Amanda wrote a great piece about how rape exceptions, motivated by a desire to restrict abortions, can’t work in when anti-choice sentiment goes hand-in-hand with rape denialism and shaming.
Something came to mind last night when I was discussing the mechanisms of a rape exception with Gene Demby on Twitter: even assuming there are no questions of philosophical inconsistency; even assuming that we live in a world where rape allegations are treated as presumptively credible; how would a rape exception work in action?
For the purposes of this thought exercise, we’re assuming that abortion is outlawed except for rape, incest and the health or life of the mother, but that the last two are irrelevant.
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.
The takeaway from this? There doesn’t appear to be any coherent, constitutional fashion in which a rape exception can be administered unless “rape” is the magic word you use to obtain an abortion with no other legal consequence or requirement.