Election 2024: The Gaslighting of The Rape/Incest Exception to Abortion Bans

With just about 10 days before the general election and with voting already underway, I thought it made sense to talk about one of the biggest issues on the ballot: abortion bans. There are several important points that have not been fully aired out about these bans and that make them, in effect, worse than we might think. The primary one discussed is the exception for rape in incest, but this exception is wholly ineffective and even dangerous, as I will show below.

Before I do, I should note that I chose to discuss this particular exception here because this is a space primarily concerned with issue relating to gender-based violence. However, there are other dangerous misconceptions about abortions as well, which we should keep in mind as we cast our vote. These include the idea that we in blue states with abortion protections in our state law or state constitution are protected. This is untrue for at least two reasons. The first, is that abortion bans in other state and travel into our states to receive care overwhelms abortion care providers and compromises everyone's access to such care. The second, is that if a national abortion ban is passed in Congress, that federal law will control over state law, even state constitutions, under a legal doctrine of "preemption" which essentially establishes the supremacy of federal law. Another misconception is that exception of the "life of the mother". I'll just say that we're seeing around the country that this means that women need to get dangerously close to death – and some have died – before they can receive care for a pregnancy gone wrong.

These misconceptions are reinforced by supporters of abortion bans to make them and the bans seem more reasonable and empathetic to pregnant people who maintain their virtue and blamelessness because they don't insist on being full humans with agency. They got pregnant through no fault of their own (i.e. low-key slut shaming all other pregnant people for having sexual agency). Or are not exercising the right to choose, rather they are terminating a dangerous pregnancy that is not their fault. Or, no less pernicious – merely "returning it back to the states" (we've seen how that worked out for us when black people weren't considered full humans either…) But here's why the rape/incest exception in particularly, regardless of theoretical objections, simply fails under any measure of lived reality.  

The main question here is how does one "trigger" the exception, or – in other words – how do authorities, doctors, etc. know an abortion can be performed because the pregnant person was in fact raped or a victim of incest? In order to fall into the exception, a pregnant person first must report their assault (I will address the complexities of this decision, and how it may not be the best course of action for everyone in a later post). Reporting itself can create a whole new trauma. Law enforcement isn't always affirming or effective. The pregnant person would presumably have to provide a rape kit, which is invasive and physically painful. And it all takes time that one may not have if they're working a fulltime job, they already have children or any other responsibilities, or if they need to be accountable to a partner or parent about their whereabouts and that partner or parent was also the assailant.

It is also not immediately clear, and as far as I know has not been litigated, if reporting itself is sufficient for purposes of the exception, of if there have to be any further steps toward enforcement, steps that may demonstrate that at least initially or on their face doctors and/or authorities believe the pregnant person's claims. Does there have to be an investigation? An arrest? A trial? A conviction? These tend to be rare compared to the prevalence of gender-based violence and take time. Can they even be completed under the time constraints of a pregnancy (remember, presumably the time limits by the ban itself would not constrain the time-line for the abortion under this exception.) In the meantime, while the law takes its course, are doctors supposed to risk criminal prosecution or losing their licenses because they performed an abortion that they believed fell into the exception?

Adding to all that – if the assailant is a partner or family member, one would need to go through all the legal processes and medical procedures without subjecting oneself to further harm. They'd need to be able to go to the police or the doctor without raising suspicion. Possibly finding another place to live (on your relocation options in California, a future post). Get one's finances in order if they must now do without the assailant's income. In many cases reporting itself increases the likelihood of violence from the partner/relative-assailant, as does a pregnancy. These are all calculations pregnant people must make that are excruciating and a huge burden and barrier to reporting and or securing abortion care. And it's all exponentially worse if the pregnant person is also a minor…

So the rape/incest exception isn't actually helpful. Indeed, it may make things worse for a vast swath of pregnant people seeking abortion. And though it is rhetorically invoked to make supporters of abortion ban seem more moderate, they reinforce the dangers these abortions impose, regardless of circumstances.