I had a different post planned for today, but Savita Halappanavar’s story intervened.
Her tragic death illustrates the problem with ‘life/health of the mother exceptions.’ The details of such policies are rarely discussed, but they inevitably includes a provision that says the doctor, not the patient, decides whether a woman’s health or life is jeopardized by a pregnancy. That means two things. One, the definition of ‘health’ is up to the doctor, not the patient. For example, if a woman faces incontinence as a result of a pregnancy, she may feel that’s enough of a compromise to her health to warrant an abortion, but her doctor may not. Two, the patient’s care will be influenced by how concerned that particular doctor is about the various potential legal repercussions of the decision; In Savita’s case, the hospital felt they ran a greater legal risk by giving her an abortion than by letting her die as a result of denying her one. ‘Life/health of the mother’ exceptions make such situations inevitable.
‘Rape exceptions’ have similar problems. (Many are laid out in an excellent blog post by a former prosecutor and expert on sexual assault cases who usually writes about classic literature, but felt compelled to speak out on this issue.) Restricting abortion access to those who have been victims of a crime means involving the legal system in a patient’s care. Do we intend to require a woman to prove she was raped before being allowed to have an abortion? Let’s set aside the fact that that’s exactly what was rejected by the Supreme Court in Roe v. Wade, and look at why it doesn’t work. Does she only have to prove she was raped, or does she have to identify her rapist? We can’t require that the rapist be found and convicted, because there are many cases in which a rape clearly took place, but the rapist is never caught (even when the victim files a report, has a medical exam, and the DNA matches a convicted rapist.) If she just has to prove a rape occurred, what if the she didn’t immediately report it, so there’s no physical evidence? (Rapists often threaten further violence if the victim reports the assault.) Would the alleged victim be the plaintiff or the defendant, and who would argue against her? Is this a civil or criminal issue, and what’s the burden of proof? It takes longer than 24 weeks (the current limit on legal abortion) to bring a case from charge to verdict (or whatever this would be, in the absence of a charge) – how would we expedite these cases so an abortion could take place? What about the appeals process? Long story short, this approach is unworkable.
The alternative is to allow women to have abortions based on claims of having been raped, and then put them through some legal process afterwards to determine whether they were telling the truth. (This time we’ll set aside the fact that the “pro-life” movement would probably reject this as vehemently as full legalization.) Many of the same problems apply, plus some new ones. If a woman is found not to have been raped, but she had an abortion, what do we charge her with, and what’s the sentence? If life begins at conception and the unborn have the same rights as everyone else, is she eligible for the death penalty? Is the doctor who performed the abortion an accessory to murder? What if it’s a case of incest or statutory rape in which the sex was consensual, but still illegal? If the alleged victim is a minor, who will be punished if the rape claim is found to be false – the minor or her parents or guardians?
It all brings me back to the same place – the only workable solution is to allow women to make their own decisions, and live with the consequences.