Ted Cruz has been outspoken in his uncompromising opposition to abortion in all cases, even for pregnancies resulting from rape or incest, and Donald Trump has suggested that there should be legal repercussions of some kind for a woman who undergoes an illegal abortion, rather than just for the doctor who performs it. So-called “moderate” Republicans claim both of these positions are outside the mainstream of their party. They rush to insist that, heavens no, this isn’t about punishing the poor woman who actually gets an abortion, why, she’s as much of a victim as the unborn child! They freely acknowledge that a woman shouldn’t be required to carry her rapist’s child to term, and believe in the goodness of their hearts that there should be some kind of exception written into any post-Roe v Wade-overturn abortion ban in the case of rape, and maybe some other vaguely-defined cases affecting the health of the mother. But how, exactly, would a “rape exception” work in practice?
It seems like a humane and straightforward proposition, right? But there’s actually a lot to unpack in this notion. Let’s start by taking a look at three fictional examples for discussion:
Example 1: Juanita.
Juanita liked working at the cocktail lounge at the Marriott downtown. The clientele was mostly professional business travelers, and they usually weren’t obnoxiously persistent when they tried to hit on her. The hours were good and the tips were generous on most nights. What she didn’t like was the skimpy outfit she was required to wear, and the fact that had to pay for her own parking at an underground garage 2 blocks away from the Hotel.
One night, after a late closing shift, a man was waiting for her when she stepped out of the stairwell in the parking garage’s lowest level. While she fumbled for her keys, he charged her from behind, and slammed her backwards into the windshield of her car, cracking the glass and, perhaps mercifully, causing her to lose consciousness. When she awoke in the hospital, she had multiple bruises and scrapes, a fairly serious concussion, two cracked ribs, and to her horror, a new pregnancy.
Her attacker was never identified. He had chosen the location for his ambush carefully, out of range of the garage’s few security cameras, and she got only the merest glimpse of his hoodie-shadowed face before she blacked out. A rape-kit was performed in the emergency room, but the kit was filed into the backlogged evidence room at the police department, and never examined.
Example 2: Cindi.
As a shy Freshman, away from home for the first time, Cindi was absolutely bowled over when Blake, the handsome varsity quarterback, asked her, of all people, if she wanted to go to a party with him. The “party” turned out to be in his dorm room, and the only others there were Drake’s roommate Ben and his girlfriend Tina. They played a hilarious game called “tequila tickles” where you tried to swallow a shot of Jose Cuervo while being held down on the bed and ruthlessly tickled by the other players and trying not to laugh. She was having so much fun that she didn’t realize how drunk she was getting, and she also wasn’t aware when Ben and Tina slipped out of the room and left her alone with Blake.
The next morning, she took a humiliating “walk of shame” back her room, her cheeks burning under the gaze of what felt like the entire student body. Her hair and makeup were disheveled, she had lost her panties and one shoe along with her dignity and her virginity, and she had a roaring headache that lasted for the rest of the weekend. What she didn’t discover until several days later was that she was also carrying Blake’s baby.
Cindi wanted to speak out and have Blake arrested right away, but her roommate sat her down and explained the facts of life to her: what would happen if the captain of the best football team the school had fielded in a generation were suddenly benched; what kind of questions she would have to answer if the case ever went to trial; and how unlikely that was to even happen. Tearfully, she dropped out of school and went back home to decide what to do.
Example 3: Kelly.
Kelly’s life, like her marriage, was a mess. She had been married to Stan for two years, and things had been rocky almost from the beginning. Now he had lost his job and began drinking more than usual, sometimes lashing out at her in his frustration. One night things got really bad. Angry, jagged words were flung, and flung back, things escalated beyond words, and in anger he took her, in spite of her tears, or maybe partly because of them. In the end, he cried too, and begged her not to leave, but she just couldn’t bring herself to stay. She went to stay at a friends house, and over the next days, she tried to come to terms with what had become of her life, the man she loved and now, at the worst possible time, the realization that another life was now at stake.
Kelly and Stan had talked about having kids, but neither felt ready, either emotionally or financially. The “incident” seemed to have broken some kind of fever that had been gripping Stan ever since losing his job. He had seen a glimpse of a monster within himself that night, and vowed to try to make it up to her. Kelly still wasn’t sure whether she could ever really forgive him, or whether her marriage could be saved, but of one thing she was absolutely sure: that a baby would destroy any chance it might have at this delicate time.
OK, got all that? First off, let’s all agree right now that all three of these are stories about rapes. If you want to talk about whether Juanita should’ve seen it coming, or Cindi was asking for it, or that there’s no such thing as rape if you’re married, you can go fuck right off. There are plenty of people who would agree with you, and there are other people who would be interested in arguing with you about it, but those people don’t look anything like me. When we think of rape, we tend to think of stories like Juanita’s, but in reality, random assault by a stranger is the least common form of rape. These examples may not be the same “degree” if you like, but they are all the same crime. Blake, Stan and the unnamed assailant in Juanita’s story are all rapists; Juanita, Cindi and Kelly are all victims of rape, and their pregnancies can all be legally terminated, if a proposed law otherwise banning abortions includes an exceptions in cases of rape. Period.
Let us also stipulate that any or all of these women could choose to carry her baby to term, and either raise it or give it up for adoption. Of course. To make such a monumental sacrifice is nothing short of heroic, and no one should have anything but the utmost respect for a woman who chooses that path. Let’s assume, however, for the sake of argument, that each of these three has chosen, after much agonized soul-searching, to terminate her pregnancy. So she goes to a clinic, and as she is filling out the usual clipboarded stack of routine pre-admission paperwork, she comes across a page with a box halfway down that reads something like,
AFFIDAVIT
By signing below, I, __________________, do solemnly swear that the abortion I have requested to undergo is legal and authorized under paragraph blah, subsection blah blah, of the blah blah blah abortion law of 2017. I hereby attest and affirm that I am a victim of a rape, and that the physician performing this procedure is legally authorized therefore to terminate the pregnancy which has resulted from this crime. I agree to indemnify and hold harmless Dr. ___________________, MD, and any and all associates, agents, heirs and assignees from any liability or criminal prosecution resulting from this procedure.
Signed, ____________________________________ Date ___________________
Now, is the doctor legally required to verify that the information is true? How could he? He is a medical practitioner, not an officer of the court. He does not employ private investigators, and is under no obligation to verify the legal claims made by his patients, any more than a mechanic is required to verify that a car hasn’t been stolen before he agrees to change the oil. So in this, Trump is correct (even though typing those words makes me throw up in my mouth a little): if abortion is considered to be a crime, outside of very narrow exceptions (which is the position Trump has stated he supports), and if the doctor performing the abortion is deceptively informed that such an exception applies, then shouldn’t the individual doing the deceiving be seen as the one who is guilty of committing the crime?
So how do we go about proving that a “legitimate rape”, to borrow Todd Akin’s memorable phrase, has occurred? Must there be an arrest and conviction first? Well, first of all, everyone agrees that an abortion, if one is permitted, is better to take place sooner, rather than later in the process. Trials take time, and it is unlikely that there would be enough time for the entire process to be completed before a child was ready to be delivered, let alone within the earliest weeks. For that matter, the vast, vast majority of rapists are never even arrested, let alone tried and convicted. In Juanita’s story, the identity of the attacker is never even determined, yet in her case, more so than the others, the authorities are more likely to believe her, given her injuries and the early involvement of law enforcement. Obviously the determination of a “rape exception” can’t be dependent solely on the presence of an actual perpetrator.
Now imagine Juanita’s story had ended differently. Suppose the man who assaulted her is actually apprehended and charged with rape. The trial drags on for weeks, but in the end, the jury is not able to agree on a conviction. The rapist is found not guilty and released. Does this mean Juanita wasn’t raped after all? Surely not. Could she be charged retroactively with a crime for having solicited—and undergone—an abortion under false pretense? The American system of justice is predicated on the presumption of innocence, until guilt has been proven in a court of law. If someone must be proven guilty in order to confirm someone else’s innocence, this notion is turned on its head.
So what about requiring a police report? Even if the perpetrator is unknown, wouldn’t a victim of a rape at least be required to file a police report, you ask, even if she chose not to file charges? Well, what about a case like Cindi’s? She came to the conclusion that even reporting the incident was counterproductive. Whether you agree with her decision or not, does that mean she wasn’t raped? Of course not! And what about Kelly and Stan? It is entirely possible that their marriage may survive. Even if it doesn’t, she may not want to press charges or report the incident, knowing that the man she still cares for would be branded as a sex offender for the rest of his life. Kelly and Stan might have made sweet, perfectly mutually consensual love the night before the rape, and might do so again in the future. Does that change the fact that what happened on that night was a rape? No it does not!
So let’s consider another scenario, the one that people like Ted Cruz are sure would play out over and over again if the hangar-door-sized rape-exception loophole were permitted in their cherished anti-abortion law. Let us envision an average twenty- or thirty-something single woman, with a boyfriend who may or may not be a serious marriage prospect. Maybe they took precautions, and their birth-control method failed—it happens—or maybe they simply forgot to use it, in the heat of passion, or inebriation or simple stupidity. Let’s assume that the news of their resulting pregnancy is equally unwelcome to both of them, and they agree that the pregnancy should be terminated if at all possible. They hit upon the idea of claiming that she was raped, rather than admit to willingly having unprotected sex—maybe the ruse was even his idea, or he agrees to go along with the story as long as she promises not to press charges.
Could this happen? Would it? Almost certainly. Will irresponsible people use this as an easy way out of a bind they got themselves into? Do they now? Sure. But don’t make the mistake of assuming that women make the decision to have an abortion lightly. Anyone who has ever had to deal with the a crisis pregnancy, either their own or a loved one’s, understands the desperation that grips both prospective parents when confronted with such a terrifyingly life-altering situation.
Rape, like abortion, is a complex, nuanced phenomenon, different in every case. You simply can’t craft a law, or a definition of rape, that would cover all situations, and prevent non-rape victims from obtaining abortions, yet at the same time allow actual “deserving” victims the access to this service that even most abortion opponents agree they should have. In the final analysis, it all comes down to a question of “who decides?” If you find yourself facing an unintended and unwanted pregnancy, whether as a result of a rape or not, who do you trust to make that terrible, terrible decision for you? What if it was your daughter, your sister, your mother, your best friend? Who gets to decide for her? A doctor? A judge? Some panel of lawyers or legislators?
Here’s an idea: let’s all agree that abortion is a terrible, soul-wrenching decision, and that there is one and only one individual who is capable of making the decision to have one or not, and that person doesn’t look anything like Ted Fucking Cruz or Donald Fucking Trump.