Earlier this month, Indiana passed a law that entirely bans abortion, except in the case of rape, incest, fatal fetal anomalies, or if the life of the pregnant person is endangered. The bill, SB1, was passed was despite the objections of thousands of activists, healthcare workers, business leaders and even corporations in the state.
Weeks earlier Indiana had made international news when a pregnant 10 year old from Ohio traveled there for an abortion. The repeal of Roe v Wade triggered an abortion ban in her home state that doesn’t allow for exceptions for rape. Although we can easily infer that rape happened in that case- since a child can’t consent to sex- Republicans, including the state Attorney General, openly doubted the story until a 27 year old was arrested for having assaulted the child. The Attorney General is now ghoulishly pursuing criminal charges against the physician who helped the little girl.
If the same fate befalls another girl- or if literally anyone in Ohio, Indiana, or nearby states needs abortion care- they will now have to travel hundreds of miles to receive it. Already Pennsylvania clinics are becoming overwhelmed by the increased demand. The right to abortion care remains intact in Pennsylvania but that status is tenuous and rests heavily on the outcome of the next governor’s race.
But let’s go back to the new law in Indiana, set to take effect in September. For most people, making exceptions to abortion bans for the horrific situations of rape and incest are the baseline of compassion. After someone experiences a traumatic violation of their autonomy, the literal least we can do is let the survivor make their own choices for their body. In a particularly cruel and on-brand move, Indiana Republicans had tried to remove those exceptions. Currently 15 states have or are heading towards abortion bans with no exceptions.
The vast majority of countries in the world allow abortion in the case of rape and incest, and the United Nations Human Rights Committee explicitly requires it. The UN’s Committee on Torture considers the denial of abortion access to survivors to be “torture and / or cruel, inhuman or degrading treatment.” An whopping 69% percent of Americans think that abortion should be allowed if a pregnancy is a result of rape. It’s rare to find that level of agreement on an issue.
But if a country or state is going to otherwise ban abortion except in these cases, the issue of logistics quickly arises. How will it be ascertained that the pregnancy is a result of sexual assault? Who is legally responsible for this determination? Will an arrest or conviction of the assailant be necessary? Will the survivor be forced to endure police questioning or testifying at a trial? What about survivors who are reticent to speak out, out of fear of retaliation? The vast majority of survivors don’t ever come forward in any official capacity, especially in cases of incest. Could any of this process even feasibly happen quickly enough to acquire a safe abortion?
In Mississippi, survivors of rape must file a police report in order to obtain an abortion. Utah requires this as well, putting the onus on the physician to verify police involvement, with a 15 year prison sentence on the line. Idaho makes patients give a copy of the police report to the abortion provider, which is a nearly impossible ask for an ongoing investigation. Worse still, Idaho allows anyone who would have been related to the fetus to sue abortion providers–and while a rapist himself would not be able to sue, his family members would be.
In reality, it’s medically impossible to prove rape and most providers say the rules are too vague and place them at risk for prosecution no matter what they do. The only practical, humane way to handle it is to take the patient at their word. Since abortion is safer the earlier it takes place in a pregnancy, the World Health Organization urges that the process shouldn’t involve any police reports or forensics evidence, as that would delay treatment. After much debate– the Indiana law does not appear to require police involvement or a conviction, but only allows survivors 10 weeks to seek an abortion- which is barely after someone might realize they are pregnant.
There’s also the practical issue of enforcement. While half of the murders of living people go unsolved, some police are apparently super motivated to make examples out of abortion providers and patients. In Nebraska, a mother and her daughter are facing multiple felony charges after authorities obtained Facebook messages between the pair, allegedly discussing a self-managed abortion. Most often, cops go after folks who have had abortions when they are snitched on by people they know.
And what about the cascading consequences when someone is desperate to get abortion care? While false rape accusations are incredibly rare, in places where it’s the only pathway to end a pregnancy, the incidence rises. More often, those patients will seek illegal procedures and at-home remedies, making the situation riskier than it needs to be. This is why the World Health Organization says, “Lack of access to safe, timely, affordable and respectful abortion care is a critical public health and human rights issue.”
Exceptions for rape, incest and health of the pregnant person may be the absolute basement bare minimum in providing dignity and respect to a pregnant person. Yet these exceptions prompt practical considerations that reveal the underlying truth: the best outcomes are when abortion care decisions are limited to the pregnant person and their healthcare provider.
