Analysis Abortion

“Abortion Doesn’t Unrape You:” Following Election Disaster, Anti-Choice Activists Look to Re-frame Discussion of Rape

Sofia Resnick

Faced with polls saying that eight in 10 Americans think abortion should be legal when a pregnancy results from rape, anti-choice activists are actually pushing for more public discussion of the issue. It’s part of a long-term campaign to try to change Americans’ minds and to bring the country closer to banning abortion in nearly all cases.

Published in partnership with The American Independent.

After two GOP Senate candidates saw their campaigns implode when they made controversial comments about abortion and rape, Republicans like Sen. John McCain have been asking their party to just shut up about abortion.

But anti-choice movement leaders disagree. Faced with polls saying that eight in 10 Americans think abortion should be legal when a pregnancy results from rape, these activists are actually pushing for more public discussion of the issue. It’s part of a long-term campaign to try to change Americans’ minds and to bring the country closer to banning abortion in nearly all cases.

One part of the plan is to train politicians how to answer difficult questions about the issue while also attacking pro-choice politicians. Another is to emphasize the humanity of the rape survivor and her unborn baby.

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On a webcast two days after the election, Billy Valentine—the policy director of the Susan B. Anthony List, which supports anti-choice rights candidates—lauded failed Senate candidates Todd Akin (who said, “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down”) and Richard Mourdock (who said that “even when life begins in that horrible situation of rape, that it is something that God intended to happen”) as being “courageous.”

“What Todd Akin and what Richard Mourdock said, what they meant was not wrong,” Valentine said. “In fact, they were taking a very courageous stand. But it’s how they said it. So one thing we’re going to be working on is making sure that candidates the pro-life movement gets behind are well-versed in our messaging and know how to answer the tough abortion questions.”

A day earlier, SBA List President Marjorie Dannenfelser made a similar point during a speech in Washington, D.C.

“We’re going to relook at how we endorse and train candidates,” Dannenfelser said. “From now on they will not be sent in the field with our support without knowing how to actually discuss the issue with compassion and love and to exploit the other candidate’s extremes.”

Part of the group’s strategy is to recruit more women candidates. The SBA List has celebrated Nebraska Republican Deb Fischer’s election to the Senate, which, says Valentine, makes her one of two pro-life female senators. “It was clear with some of the messaging problems we had on our end that had we had more women candidates, we wouldn’t have those problems,” he said.

Another group that has been particularly vocal about the rape exception issue is Students for Life of America, which was founded in the late 1970s for the purpose of training high school and college students to engage in anti-choice activism and advocacy.

One of the things SFLA currently does is sell postcards that “explore rape and incest arguments for the unborn” for anti-choice advocates to distribute. “Can you tell which child has a criminal father?” the cards read. “Should a child die for his or her father’s crimes?”

A couple of weeks after Akin’s “legitimate rape” comment went viral, SFLA President Kristan Hawkins wrote a blog post explaining why her anti-choice stance has evolved to opposing abortions in all circumstances, even in “those most awful of circumstances, rape and incest.”

“As pro-lifers, we believe that all human life should be treated with dignity and respect, no matter what your parentage may be,” she writes. “If my father goes out today and commits an act of mass murder, does that justify someone killing me? If the mother, a victim or rape, chooses to carry her child through her pregnancy and then decides at age 2 that the child reminds her too much of the rapist, should she be then allowed to kill the toddler?”

Personal testimonials

On Nov. 15, SFLA sponsored a rape-focused panel discussion at the University of St. Thomas in Houston. The discussion, which was broadcast online, featured Rebekah Berg, a rape survivor. Berg said that after briefly considering abortion, she decided to parent her child who was conceived as a result of the rape. The panel also included Ryan Bomberger, an anti-choice activist conceived in rape and placed for adoption. Berg gave a tearful testimony about how her son helped her heal from the trauma of being raped. Bomberger argued that abortion does not help rape survivors.

“Abortion doesn’t unrape you,” said Bomberger, who co-founded the Radiance Foundation, a marketing nonprofit that creates ad campaigns criticizing abortion. Some of the group’s billboards and videos, which are displayed on TooManyAborted.com, suggest that Planned Parenthood targets African-Americans for abortion, with messages like “The #1 killer of black Americans is Planned Parenthood and the abortuaries that target us” and “Stop Planned Parenthood End the Genocide.”

Bomberger often speaks at anti-choice conferences about his birth mother undergoing a traumatic pregnancy and allowing him to be adopted into a happy family with 15 kids, as he did last week, at a press briefing held by anti-choice movement leaders in Washington, D.C., ahead of the 40th anniversary of Roe v. Wade next month.

After the briefing, Bomberger told me the anti-choice movement should be using people’s personal stories when addressing the rape exception issue.

Okay, but should women have the option to have an abortion if they have been raped? I asked.

“See the problem is that’s not really the issue, though,” he told me. “The issue really is that 99 percent of all abortions have nothing to do with this act of violence, with rape, incest, or the physical endangerment of the mother. So it allows too often, I think, politicians like Mourdock and Akin to be taken off track and away from the reality. The reality is we have 1.21 million abortions, and 99 percent plus have nothing to do with the act of rape.

“I’m always called a rapist’s child,” he added. “Well, I’m also the child of my mother, and many women believe that that child has been their only healing grace, their only redemption. So I think any time we talk about this issue, we have to talk more about what happens beyond the act of rape.”

This type of personal appeal was also employed last year, with the “Rape Victim’s Child Tour,” an event sponsored by a national group pushing Mississippi’s failed “personhood” amendment, which would have outlawed abortion by defining a fertilized egg as a person.

While abortion-rights groups seek to expose lawmakers and candidates who oppose abortion even in the case of rape and incest, anti-choice advocacy groups are trying to figure out how to sell the argument that abortion should be banned. 

But some, like Teresa Collett, a law professor at the University of St. Thomas at Minneapolis, thinks most Americans are not ready to ban abortion without rape exceptions.

And public opinion polling tends to agree with her.

In late August, shortly after Akin’s comments, a nationwide poll produced by CNN and ORC International found that 83 percent of Americans polled said abortion should be legal “when the pregnancy was caused by rape or incest.” Periodic polling from Gallup since 1996 has found that between 75 and 78 percent of Americans say abortion should be legal in the case of rape or incest. 

Collett spoke at a recent anti-Roe lecture at Harvard University that was co-sponsored by Law Students for Life, an affiliate of SFLA. She suggested that most women who become pregnant through rape do not choose abortion. She cited a study published in the late 1970s, often promoted by the anti-choice community, “that found that 75 to 85 percent of those choose against abortion.”

However, a longitudinal survey published in 1996 in the American Journal of Obstetrics & Gynecology—which estimated that more than 32,000 pregnancies result from rape annually—found that about 50 percent of pregnant rape victims chose abortions, 32 percent opted to keep the baby, six percent opted for adoption, and 12 percent miscarried. Overall, 32 percent of the rape victims did not discover they were pregnant until the second trimester.

In her talk, Collett explained why the majority of Americans believe abortion is acceptable in the case of non-consensual sex. As an example, she brought up South Dakota’s recent attempts to ban abortion, beginning in 2006, when the state legislature passed a bill that banned all abortions except those to save the life of the mother. That law was overturned by a referendum.

“At the time that Roe versus Wade was decided, though, many abortion bans contained a rape exception,” Collett said. “And Roe struck that down. That certainly would be a law that I believe, were we to try to pass a ban, politically, as they did in South Dakota, a majority of Americans would require that there be an exception for victims of rape, and yet that would affect only 2 percent of the abortions in this country. Only 2 percent.”

She went on to say that many Americans who are against abortion believe in the rape exception because “they have an innate jurisprudential sense that law is about requiring people to live up to their duties more than it is about affirming people’s rights.

“And so they believe that when women have consensually engaged in sexual intercourse, the natural consequence is, on occasion, pregnancy, and there is no injustice in forbidding them in terminating that pregnancy. But where a woman has not consensually engaged in the activity that we know can result in pregnancy, that we ought to at least allow her some window of opportunity.”

“Not arguing for it,” she added. “I’m trying to explain why so many of our fellow citizens, who even self-identify as pro-life, think the rape cases are different, think the responsibility of people who did not even engage in the activity they know could be procreative should be excused for some brief period of time. Although even among those who would support a rape exception, I question whether they would accept it after the fourth or fifth month. There’s some sort of idea that you’ve waited long enough, you’ve made your decision.”

After the lecture, one audience member asked a question apparently related to rape exceptions.

“No, I think there will always be a rape exception,” Collett responded.

“I think that is likely, just politically,” agreed Alliance Defending Freedom attorney Steven Aden.

“I think that’s sad,” Collett added, “but we saw in South Dakota… it was unsuccessful.”

“As you saw Professor Collett’s stat that most women who are subjected to rape decide to keep the baby,” Aden said. “And those babies provide joy and fulfillment to other couples. But until there’s a place in the heart in this society for every person, even those conceived in horrible, indefensible circumstances, I think that politically perhaps there always will be.”

News Abortion

Study: United States a ‘Stark Outlier’ in Countries With Legal Abortion, Thanks to Hyde Amendment

Nicole Knight Shine

The study's lead author said the United States' public-funding restriction makes it a "stark outlier among countries where abortion is legal—especially among high-income nations."

The vast majority of countries pay for abortion care, making the United States a global outlier and putting it on par with the former Soviet republic of Kyrgyzstan and a handful of Balkan States, a new study in the journal Contraception finds.

A team of researchers conducted two rounds of surveys between 2011 and 2014 in 80 countries where abortion care is legal. They found that 59 countries, or 74 percent of those surveyed, either fully or partially cover terminations using public funding. The United States was one of only ten countries that limits federal funding for abortion care to exceptional cases, such as rape, incest, or life endangerment.

Among the 40 “high-income” countries included in the survey, 31 provided full or partial funding for abortion care—something the United States does not do.

Dr. Daniel Grossman, lead author and director of Advancing New Standards in Reproductive Health (ANSIRH) at the University of California (UC) San Francisco, said in a statement announcing the findings that this country’s public-funding restriction makes it a “stark outlier among countries where abortion is legal—especially among high-income nations.”

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The researchers call on policymakers to make affordable health care a priority.

The federal Hyde Amendment (first passed in 1976 and reauthorized every year thereafter) bans the use of federal dollars for abortion care, except for cases of rape, incest, or life endangerment. Seventeen states, as the researchers note, bridge this gap by spending state money on terminations for low-income residents. Of the 14.1 million women enrolled in Medicaid, fewer than half, or 6.7 million, live in states that cover abortion services with state funds.

This funding gap delays abortion care for some people with limited means, who need time to raise money for the procedure, researchers note.

As Jamila Taylor and Yamani Hernandez wrote last year for Rewire, “We have heard first-person accounts of low-income women selling their belongings, going hungry for weeks as they save up their grocery money, or risking eviction by using their rent money to pay for an abortion, because of the Hyde Amendment.”

Public insurance coverage of abortion remains controversial in the United States despite “evidence that cost may create a barrier to access,” the authors observe.

“Women in the US, including those with low incomes, should have access to the highest quality of care, including the full range of reproductive health services,” Grossman said in the statement. “This research indicates there is a global consensus that abortion care should be covered like other health care.”

Earlier research indicated that U.S. women attempting to self-induce abortion cited high cost as a reason.

The team of ANSIRH researchers and Ibis Reproductive Health uncovered a bit of good news, finding that some countries are loosening abortion laws and paying for the procedures.

“Uruguay, as well as Mexico City,” as co-author Kate Grindlay from Ibis Reproductive Health noted in a press release, “legalized abortion in the first trimester in the past decade, and in both cases the service is available free of charge in public hospitals or covered by national insurance.”

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.