Damned if You Do, Damned if You Don’t: The Problem of the Rape Exception

In the 2000s, more people have come to believe that rape survivors who get pregnant should have to carry the pregnancy to term, according to data from the University of Chicago NORC General Social Survey. From the nineties to the ‘aughties that number rose from 16% to 21%—more than one in five Americans.  

Meanwhile the GOP has, since January, been busy trying to shrink the very definition of rape to only deem those who suffered “forcible rape” eligible to receive federal funding for an abortion. Forcible. Not statutory rape. These are the kinds of distinctions they find it crucial to draw. What, you thought they’d give up after the public outcry in February? Ah, not so. As Nick Baumann reports for Mother Jones:

The backdoor reintroduction of the statutory rape change relies on the use of a committee report, a document that congressional committees produce outlining what they intend a piece of legislation to do. If there’s ever a court fight about the interpretation of a law—and when it comes to a subject as contentious as abortion rights, there almost always is—judges will look to the committee report as evidence of congressional intent, and use it to decide what the law actually means. In this case, the committee report for H.R. 3 says that the bill will “not allow the Federal Government to subsidize abortions in cases of statutory rape.”

Wow. Well, how to make sense of this? I can think of a few possible angles:  

The LOLsobbily Logical

On the one hand, the rape exception has always been dicey for those who want to claim that, while they’re not fond of denying medical decision-making to women per se, nevertheless incipient human life is still human life and should be protected. For if we don’t protect the most vulnerable in our midst—the thinking goes—then everyone’s protections are called into question.  

Problem is, a rape exception isn’t about a fetus: It’s about the conditions under which the pregnant woman had sex. Did she have the kind of consensual hetero sex that is rather like a mobile phone contract with a hidden pregnancy fee buried in the contract? [shrug] Nobody held a gun to her head, so she has no right to complain… or, you know, make her own healthcare decisions.

(The crassest versions of this argument are those dazzlingly astute Didn’t want ____? You shouldn’t have had sex! lines of logic that crop up in every mainstream newspaper comment thread about abortion, ever. Didn’t want to have a baby? You shouldn’t have had sex! Didn’t want to be a mom? You shouldn’t have had sex. Or, for that matter, in stories about mothers doing things not precisely in the way that the irate commenter prefers: Are you so poor that you need government assistance to feed your children? You shouldn’t have had sex. It’s gotten to the point that my friend Jess and I have enjoyed appending this willy-nilly—pardon the pun—to other political discourse: Think teachers union contracts are too long? You shouldn’t have had sex. Or: Don’t like carbon offsets? You shouldn’t have had sex. Because it makes almost exactly as much sense.)

On the other hand, if she were raped—AND had the good sense to scream and fight instead of going numb and dissociating; AND her rapist isn’t too-too famous; AND the police took her seriously; AND there was evidence to convict; AND she’s pretty enough not to elicit “Who would rape you?” questions but not SO pretty that everyone knows she’s a trollop; AND she wasn’t drinking and didn’t flirt and was a virgin and was on her way to church dressed in a neck-to-toe Oshkosh B’Gosh jumper when he jumped out of the bushes with a knife; and did all the other things that make it rape-rape—then she shouldn’t have to bear the child or the additional trauma, the thinking goes.

Or, evidently, used to go. Perhaps now people are waking up to the fact that this position is consistent if you believe pregnancy is the price women are supposed to pay for consensual sex; but not consistent if your position is “Fetuses are very small, very vulnerable children with a legal claim to use another person’s internal organs.”  

So… Um… Three cheers for consistency? Sigh. More on that in a moment.  

The Transparently Misogynist

On the other hand, the uptick could signal that even more people are kept awake at night worrying about The Lying Sluts Who Cry Rape: Abortion Edition. Indiana State Representative Eric Turner recently suggested that the very very restrictive abortion legislation then under consideration was problematic since it had a “giant loophole.”

The loophole, evidently, works like this: If you pass a law which says that only rape victims can procure abortions; and, also, you’re inclined to impart bad motives to women facing unintended pregnancies; then you might be able to imagine a scenario in which a woman gets an abortion by untruthfully claiming that she was raped. Ah, gotcha!

But since this Lying Lady Sex-Haver is thus far hypothetical, surely we can overlay other variables onto her life, right? Flesh out her character a bit more? What I mean is: we could say, hypothetically, that she needs an abortion in order to preserve her life, her mental or physical health, or her access to safe housing, but some law requires her to claim rape in order to get one because the lawmakers valued other things more highly than they valued her life, health, and safety? I mean, I’m just speculating here.  

But perhaps denying her those things is exactly the point. As Amanda Marcotte suggested last year:

This unwillingness to extend abortion rights even to rape victims may indicate more than simply a hard line attitude about abortion, but also a negative attitude about a woman’s right to live free from violence… There’s widespread myths that rape victims are either lying about being raped or somehow brought it on themselves, and therefore if they get pregnant, they deserve to be punished for being liars or temptresses or both.

This, despite the fact that at least one study suggest that sexual violators are the ones engaging in reproductive deception—hiding birth control pills and otherwise sabotaging a woman’s ability to avoid getting pregnant by the one violating her sexually.

The Theological. Ish.

Many early Christian writers opposed abortion to an extreme degree—perhaps none more colorfully than in the Apocalypse of Peter, an early 2nd century text which offers the following eternal punishment for women who had procured abortions: they would have to sit neck-deep in a lake of “discharge and stench,” while their crying aborted fetuses would zap rays of fire into their eyes. Partly this had to do with a general proscription against Christians taking any human life. Too, there was the desire to portray the nascent Christian community as more moral than its pagan and Jewish surroundings; and, perhaps, they wanted to lay to rest the whisperings that this sect of Jesus-followers sacrificed and ate babies at their gatherings.  

But as Gordon D. Newby explained on RD, this is not the only established Christian position—and certainly not the only established religious position—on abortion. Judaism, Islam, and Christianity all have traditions of reflection in which the mother’s health, safety, and freedom must be upheld, even if it means ending a fetal life.  

Here again, it all depends on what you decide you must be immovably consistent on, and who has to suffer for your consistency. If you’re against any abortion, ever, because you think that the fetus has an absolute and legally enforceable claim to the mother’s internal organs until it is either born viable or one of them dies from the pregnancy—no matter what that might mean for the woman, her health, the children she already has, or the conditions in which she lives—then one thing nobody can fault you for is being inconsistent. (Now, that’s not to say yours would be a consistently biblical position—check out Exodus 21:22-25—but then, what would a consistently biblical position even be? Oops, my hermeneutics are showing.)  

No, what you consistently value is the requirement that women who get pregnant have to stay pregnant, under threat of penalty, no matter the circumstances that will befall her as a result. If that’s what you believe, then I dare say you’re not likely to change your mind as a result of further conversation. The question for the rest of us then becomes: What role should extreme positions like yours be allowed to have in shaping the rules by which we all have to live?  

The Unifying, Common Ground, Find-What-We-Should-Be-Able-To-Agree-On Gesture of Goodwill  

Or maybe it’s all of the above and more, a confused hodgepodge of reasons: Women are notorious liars whose health and safety isn’t really all that important, which is why they are the exact right people to sacrifice everything for The Children! Think of The Children! Fine. Okay.  

Can we agree, though, on one thing, in the interest of consistency? That if you’re going to force a woman to bear her rapist’s child, that if you actually think that’s both your business and an appropriate use of the law, you had better be falling over yourself to end sexual violence and rape culture? That you’d best be trying to figure out how everyone can access contraception, including emergency contraception, and including contraception that their abusers can’t sabotage in order to perpetuate the abuse? And that you naturally want to make it safer, easier, and less expensive for all families to keep children healthy and in good schools? And you’d probably also, for good measure, want to look like you care a lot about what John McCain found it so easy to put in snide air quotes: “the health of the mother”? And that maybe you might like to listen to the non-fetal people with insight into the legislation you’re considering?  

Because if not: sheez, talk about a giant… ahem… loophole.

Shannon Fleck contributed invaluable research and feedback on this article.