The Rape Exception Does More Harm than Good to Most Women Seeking Abortions

The month of March has seen the rise of two high-profile abortion restrictions: a 15-week ban briefly signed into law in Mississippi before intervention by a federal judge; and last Monday, the proposal of a sweeping abortion ban in Ohio. Both bans have drawn vast controversy for a key reason: Neither provides exceptions for women who were impregnated by rape.

Protecting access to abortion for victims of rape is crucial to helping survivors heal from their trauma. Every year in the United States, an estimated 25,000 pregnancies are the result of rape.

Yet, when it comes to abortion bans or restrictions that make no exceptions for rape, it’s important for women’s rights advocates to note that the lack of exception isn’t the problem so much as the actual restrictions are. Rape exceptions are largely symbolic, with the singular goal of making restrictions appear less cruel and draconian than they really are; in practice, whether or not an exception is attached to a bill affects only a very small minority of women. By simplifying and limiting our conversations around sexual violence and abortion access, the rape exception has greater implications, especially in an era of shifting conversations around sexual assault.

Pro-choice advocates can likely agree that one’s right to bodily autonomy shouldn’t be contingent on whether she experienced rape, or whether she could die if she carries a pregnancy to term. However, in order to move forward and protect the rights of survivors and all women, we must also agree that the rape exception is not only insufficient, but also detrimental to survivors, by promoting the false assumption that rape is easy to prove and report to law enforcement or other authorities.

Unfortunately, the rape exception is rarely discussed in media beyond a cursory line about whether or not a newly proposed bill includes it. This fails to acknowledge the burden of proof that the exception places on survivors, and how the exception effectively does nothing for the decisive majority of rape survivors who do not report their experiences to law enforcement, social services or other authorities.

While they are not many, there are some women who benefit from the rape exception, such as the minority of survivors who report their experiences or those who live in states that require a doctor’s note rather than formal police or social services reports to verify that a pregnancy was the result of rape. But the rape exception’s damaging effects on the dialogue around sexual assault hurt all survivors.

Today, the #MeToo movement has helped expose the prevalence of sexual abuse. One in five women were victims of rape or attempted rape in 2011, according to the Centers for Disease Control and Prevention.

The sheer number of women who have only been able to win some form of justice for sexual assault via social media speaks to how difficult it is for survivors to be accorded recognition and justice through the legal system, to the extent that so few women feel safe enough to give it a chance. Among a survey of the estimated 65 to 84 percent of survivors who do not report their experiences to law enforcement, a plurality cite fear of stigma, police and intimidation from authorities. Sexual assault results in fewer convictions and arrests than any other crime, likely deterring many survivors from coming forward.

The rape exception does not automatically apply to every woman who is impregnated by rape, and it places substantial burden on survivors. When we exclude these realities from the conversation around the exception, we undermine an ongoing system of misogyny that blames, shames and traumatizes survivors, and coerces them into silence. We erase the struggles that inherently go hand in hand with the rape exception, and simplify the challenges all survivors face.

Laws that enable state governments either to force women to give birth or to undergo the painstaking process of trying to prove their assaults took place deny survivors the human right to bodily autonomy. Not many abortion laws are as repressive as the 15-week ban in Mississippi and the Ohio ban that would criminalize all abortions. But those who live in the 17 states with 20-week bans and the 32 states that prohibit coverage of abortions bear the obligation to prove their experiences to access the procedure.

Fewer than 9 percent of abortions take place beyond the first trimester. Because of this, while obviously cruel and unconstitutional, 20-week bans affect a minority of women. But on the other hand, bans on abortion coverage have the potential to affect all poor women, and disproportionately women of color, who seek the procedure.

State laws restricting public funding for abortion with few exceptions exist alongside the Hyde amendment, a federal law that bans federal tax dollars from paying abortions and degrades the concept of abortion as a human right by barring poor women’s access to the procedure. Among the states that restrict coverage, the majority require a doctor’s note to verify the pregnancy resulted from rape, while 11 states require reporting to law enforcement or other state authorities. Since Ohio is one of those 11 states, it seems safe to say that even if its proposed abortion ban did offer an exception for rape, survivors would still face a severe burden.

With abortion restrictions being introduced in unprecedentedly high numbers and at such a speedy rate (more than a quarter of the some 1,000 restrictions on abortion passed since 1973 were passed in the five years between 2011-2016), abortion rights advocates have had their hands full. But our failure to acknowledge the complexities of the rape exception and how it does nothing for the majority of survivors has sidelined and erased untold numbers of survivors, and poisoned the conversation around sexual assault. In light of all we’ve learned from #MeToo, now more than ever, this has to change.

Abortion and abortion policy have always been fundamentally about whether or not we believe and trust women. Especially with a Congress that is 80 percent male and with men occupying 75 percent of state legislator seats nationwide, the issue of abortion access mirrors #MeToo with its striking portrait of men in positions of power colluding to dominate, abuse and deny women control. The rape exception shows just how much this is the case: Rather than believe women when they say they need abortions, lawmakers require them to relive and prove their trauma.