Commentary Abortion

The Fallacy of Rape, Incest, and Life Endangerment Clauses

Sarah Erdreich

Any law that allows abortion only in certain cases also helps create two classes of women: those who “deserve” abortions, and those who do not. This is a complete fallacy; all women deserve access to safe abortion care, along with the entire range of reproductive health care.

Earlier this year, North Dakota made headlines for passing the most restrictive abortion law in the country. The bill would ban abortions after a fetal heartbeat can be detected, even in cases of rape and incest, only granting an exception in cases in which a medical emergency threatens a woman’s life.

By refusing to allow a woman to have an abortion when the pregnancy is the result of rape or incest and by defining “life endangerment” so strictly, anti-choice legislators in North Dakota are actually being refreshingly honest about their goals. They don’t just want to ban abortion as early as possible in a pregnancy—they want to ensure that virtually no woman will be able to access safe abortion care.

In light of their honesty, I think it’s past time that the pro-choice movement accept a hard reality: that the rape/incest/life endangerment exemptions are nothing more than a feel-good smokescreen that never deserved to become the acceptable compromise that so many individuals on both sides of the reproductive rights divide seem to treat it as. Insisting that any or all of these exemptions be included in measures that seek to curtail reproductive rights is a waste of time and does a great disservice to all women who seek abortion care.

These exemptions create two huge problems. Practically speaking, they erect barriers to abortion access. And on the societal side, they further stigmatize abortion.

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On the practical side, a “no abortion except in cases of rape” exception makes it harder for a rape victim to get an abortion than a pro-choice law would. We see this play out in the 32 states that allow rape and incest victims to seek Medicaid payment for abortions. (How these states define and fund their Medicaid exemptions is its own complex tangle.) In not one of these states does Medicaid take the patient at her word. Instead, 21 of these states require the doctor to submit a note stating that the woman was raped; the other 11 require a report from either the police or a social services agency. Considering that 54 percent of rape survivors do not report their assaults to the police, this means that many women who become pregnant as a result of rape and wish to terminate their pregnancies will lack the official documentation necessary to qualify for Medicaid coverage.

Even if a woman is able to obtain the necessary documentation, she still must find an accessible clinic that will accept Medicaid reimbursement. A study from Ibis Reproductive Health that examined Medicaid funding in 15 states found that “[i]n most states with restrictions on Medicaid funding, and in three without restrictions, very few of the abortions which the providers thought should be eligible were funded by Medicaid. Most providers had largely given up on working with Medicaid due to the excessive staff time spent trying to get reimbursement, bureaucratic claims procedures, and ill-informed Medicaid staff who hampered their efforts to seek coverage for this care.”

Obtaining an abortion in cases of life endangerment is equally difficult. First, there’s the question of how to define “life endangerment.” Since three states allow public funds to be used both in cases of life endangerment and to safeguard a woman’s physical health, there appears to be some confusion about where one ends and the other begins.

In addition, each state (plus Medicaid) can have their own definition not just of what counts as life endangerment, but how that determination must be made. A 2012 paper examines just how challenging it is to obtain Medicaid reimbursement for abortion procedures: “[I]t is unclear exactly what the documentation is required to prove life endangerment, and what criteria the reviewers at Medicaid are using to assess the condition.” These hazy definitions also extend to the rape exemption, with clinic staff reporting that Medicaid can use different definitions of “rape” than either providers or women.

Given all this, it’s hardly surprising that between 2009 and 2010 the federal Medicaid program contributed to the cost of 331 abortions in cases of rape, incest, or life endangerment. The 17 states that allow public funds to be used in most or all abortion procedures obtained by low-income women, on the other hand, assisted in the cost of 181,000 abortions.

While many of the logistical difficulties of obtaining an abortion in one of these three exemption cases can be traced directly to Medicaid, a number of these barriers also apply to women who are able to pay for abortion care out-of-pocket. Women who became pregnant through rape or incest, or whose lives are threatened by their pregnancy, and who live in states that ban abortion after a certain number of weeks may be particularly vulnerable to the vagaries and complications of obtaining abortion care in those cases.

Aside from the legion of logistical problems encountered by both women and abortion clinic staff, these three exemptions are troubling from a messaging standpoint. First, they help perpetuate the idea that if a woman becomes pregnant through consensual sex, she deserves whatever the consequences are, and that a woman could, or should, only want to terminate a pregnancy in the most exceptional of circumstances. The very existence of these clauses reinforces the stigma that still surrounds abortion, and gives weight to the anti-choice narrative that abortion is an exotic form of medical care that should only be attainable at certain times by certain women.

Speaking of anti-choice narratives, why hasn’t the pro-choice movement made a larger issue of the logical disconnect that the exception stance represents for the anti-choice movement? By deeming abortions allowable in some circumstances but not others, the movement is undercutting its very goal of outlawing abortion entirely. If an entire movement dedicated to repealing Roe v. Wade would allow for abortions under certain circumstances, aren’t they actually at least a little bit pro-choice?

Any law that allows abortion only in certain cases also helps create two classes of women: those who “deserve” abortions, and those who do not. This is a complete fallacy; all women deserve access to safe abortion care, along with the entire range of reproductive health care. Just as a woman’s ability to have an abortion shouldn’t depend on how much money is in her wallet, it also shouldn’t depend on the specific circumstances surrounding conception.

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