CW: this op-ed has mentions of sexual assault and intimate partner violence in the context of abortion bans
On May 2, Politico released a leaked authentic initial draft opinion of Dobbs v. Jackson Women’s Health Organization, which reveals that the Supreme Court is poised to overturn Roe v. Wade and Planned Parenthood v. Casey, two cases that ensure the right to abortion. Even though the Supreme Court has not officially released the opinion, the fall of Roe and more abortion bans are imminent. In the months since the Dobbs oral arguments, anti-abortion state lawmakers in Idaho, Kentucky, Oklahoma, and Florida quickly rushed to craft and pass draconian abortion bans. Idaho and Oklahoma’s recent abortion bans mimic Texas’ SB 8, which allows anyone to sue someone who performs an abortion or helps a pregnant person access the procedure as early as six weeks into pregnancy. Florida and Kentucky’s 15-week abortion bans include no rape exceptions, a stark departure from 60 years of abortion lawmaking. After this June, anti-abortion state legislatures will pass even more punitive abortion bans. In states where Republicans command legislative majorities, pro-choice allies may try to add rape exceptions to anti-abortion laws that are guaranteed to pass. In fact, this is already happening: a Democratic state representative in Ohio argued to include a sexual assault exception to a trigger ban bill that does not currently have one.
Yet, rape exceptions to these severe laws will never fulfill survivor justice. Because of their lack of intersectionality and endorsement of gendered stereotypes, rape exceptions allow survivors to slip through the cracks, exacerbate inequities, and undermine reproductive justice. Now is the moment for survivor and abortion rights movements to work together and devote our energy toward accessible, affordable abortion on demand and proactive abortion policies.
While there is popular support for allowing abortion in the instances of rape, it seemingly stems from an understanding of rape as solely a criminal offense and not a civil rights violation. It also reinforces the belief that anyone seeking abortion care cannot have that bodily autonomy unless somebody else violates it. If legislators fully accepted that rape and other acts of sexual harm deny surviviors human dignity, liberty, and ownership of their lives and personal identities, they would view rape exceptions as ineffective compromises that severely complicate the ability of pregnant survivors to obtain abortions. The Hyde Amendment illustrates why rape exceptions will never give survivors the justice they deserve. The amendment, named after a staunch anti-abortion congressman, has prohibited the federal government from funding abortion through Medicaid since 1976. Yet, it does contain a rape exception. For survivors to access Medicaid reimbursement to terminate a pregnancy that resulted from sexual assault, some states require a doctor’s note or a police or social service agency report. These options may be inaccessible to survivors.
Narrow definitions of rape that proliferate states’ legal codes will not allow survivors to access the justice they need. Pregnancy may result from a wide range of sexual harms, including rape, intimate partner violence, reproductive coercion, and stealthing. It is improbable that anti-abortion lawmakers, who pass forced pregnancy laws, would support an expansive definition of gender violence.
Rape exceptions’ reliance on the legal and health care systems also alienates marginalized abortion seekers. Most rapes are not reported to the police, and interacting with the carceral system may retraumatize survivors or perpetuate more violence on the survivor. Black, Indigenous, and people of color, disabled folks, queer and trans people, incarcerated people, and others oppressed by the same structures and processes that both fuel sexualized violence and anti-abortion laws cannot depend on our current systems to address harm.
Survivors, abortion-seekers, and people who inhabit both of these stigmatized identities deserve control over their lives and the ability to make decisions about their reproductive futures. Rape exceptions—and any abortion restriction or ban—prevent survivors from having the ownership of their lives that they deserve.
Legislators and advocates must think creatively about how abortion and survivor justice are inextricably intertwined and pursue actions that are pro-survivor and pro-abortion, like drafting and passing legislation that would accommodate out-of-state abortion seekers, protect their state residents from vigilante lawsuits if they help someone in a different state obtain an abortion, and enact more expansive legal defintions of rape and sexual assault in the civil law context. Most importantly, we must donate to abortion funds and allow those who are closest to these experiences to be closest to the power. Survivor justice and abortion justice depend on our creative solutions and steadfast rejection of ineffective compromises in the post-Roe world. We have settled for the floor, and we now demand so much more.
