The Problem With Rape Exceptions

They're bad policy, and reproductive rights advocates should stop asking politicians to support them.

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Throughout this year's campaign season, women's health advocates have pressed candidates who oppose legal abortion to clarify whether they support "rape exceptions" for women seeking to terminate pregnancies that have resulted from a sexual assault.

Politicians like Todd Akin, Richard Mourdock, John Koster, Mitt Romney, and Paul Ryan have already confirmed their support for a sweeping ban to roll back all legal access to abortion across the nation. Nevertheless, it has become important for some supporters of reproductive rights to hear that these men don't really mean it when it comes to survivors of sexual assault. The interest in rape exceptions makes sense from an emotional standpoint—choice advocates, who expect politicians to feel compassion toward vulnerable women who are recovering from sexual violence, often take the opportunity to point out a case where they believe opposing abortion rights is unforgivably extreme. From a policy point of view, though, their push for rape exceptions falls flat.

For one thing, exceptions only in the cases of rape, incest, and preserving the life of the woman are incredibly, impossibly narrow concessions in the broader landscape of reproductive rights. For those who support legal abortion access, the central argument is that society needs to empower women with the autonomy over their own bodies and the power to determine their own futures—and politicians who personally oppose abortion have no right to dictate those things for every woman in the country. Framing the debate as a struggle to get more lawmakers to agree on abortion access for women who have been raped is not the final goal that choice advocates are striving for. But going multiple rounds in the fight over "rape exceptions" sets up that implicit assumption, effectively stalling the conversation about abortion access in this one small place.

And one of the most problematic things about choice advocates imagining that agreeing on "rape exceptions" is a small, positive step toward reproductive justice is the fact that the policy wouldn't work in practice—and could actually hurt women.

Try it out in the hypothetical. If tomorrow Pennsylvania implemented a state-wide ban on legal abortions that included an exception for rape, how would its politicians, doctors, law enforcement, and abortion clinics effectively enforce it? How will women claim their "rape exception"? Will they have to file the appropriate paperwork with the state and, if so, who will be responsible for approving or denying their abortion request? A woman will probably have to definitively prove she was raped, and verify that she isn't just lying to cheat the system. And in that case, sexual assaults may be ranked against each other, as the bureaucrat in charge of dispensing legal abortions determines which women's claims are more valid than others. Perhaps the rapes that appear to have been violent violations of virginal girls will be seen as more tragic, somehow more "legitimate," while other women may be less likely to be approved for their abortion rights if they were raped at a party where they were drinking alcohol and wearing a skirt. Would Pennsylvania adopt regulations that require rape survivors to report the crime to the authorities within a 72-hour time frame to qualify for their abortion benefits—as one state lawmaker there has actually already proposed?

It's not so difficult to imagine the policy of rape exceptions devolving into a power struggle where rape survivors must prove themselves and their experiences to skeptical audiences. In fact, we're not so far away from that policy world already.

The current regulations for women who want to claim government assistance to pay for abortions often already require them to wade through red tape to prove they were raped. Thanks to the Hyde Amendment, which bans federal funding for abortion, 34 states and the District of Columbia will only allow abortion services to be covered for low-income women in the Medicaid program if the pregnancy either resulted from rape or incest or will threaten the life of the woman. Eleven of those states will only consider Medicaid coverage if women can produce documentation that verifies she reported the incident of rape to the police—despite the fact that over half of sexual assaults go unreported to the police because women fear repercussions from their abusers.

And ultimately, these state-level exceptions aren't actually functioning in the way they were intended. Studies have found that Medicaid beneficiaries who qualify for this abortion exception do not often actually end up getting reimbursed for their abortion procedures, and as a result, the Guttmacher Institute estimates that a quarter of women in the Medicaid program who initially planned on getting an abortion ended up giving birth instead. As Stephanie Poggi, the executive director of the National Network of Abortion Funds, told the Washington Post, "Basically, these exceptions don't work. It's really a myth that there is coverage that is still provided."

If these exceptions are a bad policy for regulating which low-income women may receive Medicaid assistance to help pay for their abortion services, they would certainly also be a bad policy for regulating which women across the country can access abortion services. Women's health advocates have many goals in their fight for expanded reproductive rights, but convincing lawmakers to lend their support to a doomed policy shouldn't be one of them.