A distinction without a difference

Missouri Representative Todd Akin’s (semi-recanted) comments about women’s bodies being able to “shut down” pregnancy following “legitimate rapes” have once again lifted abortion legislation to the top half of the national front page. As ever, we seem to be making strange distinctions – between the “extreme” and “less extreme” versions of proposed anti-abortion legislation.

These are, respectively, 1) the absolute ban on abortion for any reason (except, possibly, in cases where the pregnancy will result in the death of the woman) and 2) the same ban, with exceptions made for pregnancies that are the result of rape or incest. In @ThundarKitteh’s BBC World Service interview yesterday, this supposed distinction was the primary subject of discussion. Advocates of the “extreme” position argue that, given their belief that the fetus is a human person from the moment of fertilization, the circumstances surrounding that fertilization are immaterial. The “less-extreme” counter is that, basically, “things are complicated,” and that the evil a woman suffers by undergoing rape excuses her from the responsibility of carrying the fetus to term.

In this trenchant Salon piece, Irin Carmon argues that granting the distinction between these positions is incredibly dangerous.

[W]hen progressives cede the moral center to the rape exception, they are implicitly buying into the idea that some reasons to have abortions are more justified than others — and that we should be interrogating these reasons at all. As Tracy Weitz, who conducts empirical research on women who have abortions (remember science?), wrote recently, ”In many ways people opposed to abortion in all cases have a more consistent, and I would say, honest position. For them, either a blastocyst, embryo or fetus has a right to life, no matter how it was conceived, or a woman doesn’t have the right to terminate a pregnancy, no matter the circumstances.” She calls out commentators, including the very pro-choice Rachel Maddow, for saying that politicians are extreme when they even oppose exceptions for rape and incest. ” Unfortunately,” Weitz writes, “it is extreme to oppose the right of any woman to make decisions about the direction of her life, no matter the circumstances under which she finds herself pregnant.” In other words, either you believe a woman has the right to decide not to be pregnant anymore, or you think you should get a say in her decision.



(Emphasis mine)



This is a fundamental concept to grasp in the debate over abortion rights. Roe v. Wade framed abortion as a matter of Constitutionally-protected privacy – finding that the state had no arbitrating role in a woman’s decision to proceed with or terminate a pregnancy. The suggestion that any kind of burden of evidence be placed between a woman and an abortion provider completely rejects the idea of privacy, and the legal ramifications of that could be far-reaching (possibly nullifying, for instance, provisions of the Health Insurance Portability and Accountability Act of 1996).

But imagine rape and incest exceptions to an abortion ban as a policy implementation matter. How would this play out in the real world? The short answer is, it wouldn’t.

The implication of the exceptions is that a woman seeking an abortion would have to prove she became pregnant due to rape or incest (we can take it as read that women would not simply be taken at their word). This would require providing some kind of bona fides to an arbitrating body. Would that be a medical board or investigator, or a law enforcement entity? Who would establish the validity – the “legitimacy,” if you will – of the woman’s claim? Short of creating a new industry of crack pregnancy detectives within the medical establishment, it seems likely that the matter would be handled by law enforcement.

It should be no surprise to readers of this blog that rape is a notoriously difficult crime to prosecute. A 2010 study by End Violence Against Women International found that a whopping three percent of rape cases ultimately result in the rapist being convicted and incarcerated. Now, it is sometimes easier to determine the fact that a woman has been raped than the guilt of a rapist, but even so, this is still a marginal figure. But this is only the case when physical brutality has been used in commission of rape, and where the evidence of that brutality still exists. For most rapes, these requirements cannot be met – but that does not in any way make them less “legitimately” rapes.

Should a woman overcome this nearly-insurmountable burden of proof in the “rape exception” world, though, where would she go to actually have an abortion performed? Considering the fact that an investigation of any kind would take some time – months, it’s easy to imagine – second- and third-trimester abortion facilities would be needed to terminate her pregnancy. Would the amount of demand, restricted to nearly nothing by the effective ban, financially justify any hospital or clinic maintaining the facilities to carry out these “allowable” abortions? “Good news, ma’am – you can terminate your pregnancy. The bad news is there’s no one left to do it.”

So to hem and haw between the “extreme” and “moderate” positions on abortion bans is to make a distinction without a practical difference, and we should never be “impressed” by a conservative politician’s “generous concessions” of exceptions to abortion bans for cases of rape and incest. They know it makes no difference, and so should we.