The experience of a 10-year-old rape victim in Ohio who had to travel to Indiana for an abortion drew national attention because it was horrific — and because most Americans believe it shouldn’t have happened.
Nearly 70 percent of adults in the U.S. say abortion should be legal if the pregnancy is the result of rape, according to a recent Pew Research poll. Yet most states that have banned abortion since the Supreme Court struck down Roe v. Wade last month are bucking popular opinion. Just three of the 22 states with pre-viability abortion bans include exceptions for rape and incest, along with three states that are poised to outlaw abortion soon, according to the Kaiser Family Foundation.
“I think people thought there would be more exemptions,” said Elizabeth Nash, principal policy associate at the Guttmacher Institute. But the lawmakers drafting abortion bans “are not interested in exceptions — they see them as loopholes,” she said. “And when there are exceptions, they are incredibly narrow.”
In theory, such exceptions should spare sexual assault survivors the additional trauma of carrying a pregnancy caused by rape to term. But in reality, that is often not the case. Bureaucratic hurdles, like requiring rape victims to show that they’ve filed a police report before receiving an abortion, will keep many from qualifying for exceptions. According to the Rape, Abuse and Incest National Network, 8 out of 10 rape victims know their rapist — and may fear retaliation if they report their assault. Others may worry that they won’t be believed. And victims may also have trouble finding abortion providers in their home state, as clinics shut down in the wake of strict limits or bans.
“Exemptions are bullshit,” said Laurie Bertram Roberts, executive director of the Mississippi Reproductive Freedom Fund. They’re written to make it seem like abortion will be legal in these extreme circumstances, she said, “but in function and form it will not be.”
Exceptions for rape or incest predate the most recent round of abortion restrictions. The Hyde Amendment, which has prevented Medicaid from covering abortion since 1976, does not apply in cases of rape or incest.
But evidence suggests the policy often doesn’t work because of how individual states implement Medicaid. South Dakota’s Medicaid program, for instance, fails to cover cases of rape or incest, according to a 2019 Government Accountability Office report. In other states, many providers simply don’t bother submitting claims because of all the extra hurdles states have built into their versions of Medicaid, the report found.
“For states that were doing life, rape, incest exceptions only, there really aren’t any abortions being paid for under Medicaid,” said Nash.
Approximately 1 in 4 women experience rape or attempted rape in their lifetime in the U.S., according to the Centers for Disease Control and Prevention. And nearly 3 million, or 2.4 percent, of U.S. women have experienced a rape-related pregnancy in their lifetime, according to the agency’s 2010-2012 National Intimate Partner and Sexual Violence Survey. About 15 percent, or 1 in 7, of female rape victims became pregnant from their assaults, according to the 2016-2017 version of the same survey.
The trauma of being raped, and the reality that most victims of sexual assault know their attackers, prevents many from reporting what has happened to them. Nationwide, roughly 2 of 3 rapes or sexual assaults are never reported to the police, according to the Rape, Abuse and Incest National Network, which analyzed Department of Justice data.
“Most people never tell anybody that a pregnancy is the result of rape or incest,” said Grace Howard, an assistant professor of justice studies at San José State University. Victims’ reasons for not reporting assaults to police “are basically infinite,” she added. They include worries about not being believed, fear of retaliation and general distrust of law enforcement. “There’s not a good record of police treating sexual violence victims well,” Howard added.
Less than 1 percent of rape charges result in a conviction, and investigations have shown that many police departments grossly mishandle evidence — such as DNA evidence preserved in rape kits — that could be used to prosecute assaults.
And people who do end up reporting don’t necessarily do it immediately. “There’s added trauma to have to report the assault. You have to relive things, and you may not be prepared to do that right away,” said Nash. “It may take time, and when you need an abortion, time is not in your favor.”
Howard agreed. “Take one of the most stigmatized things in our society and add another one of the most stigmatized things on top of it, and then add a ticking clock,” she said. “It’s not workable.”
Many people who have been assaulted may not even consider themselves victims, said Barbara Sheaffer, medical advocacy coordinator at the Pennsylvania Coalition Against Rape. The CDC’s 2016-2017 sexual violence survey found that nearly 60 percent of women reported sexual coercion by an intimate partner over their lifetimes, and nearly 40 percent reported being raped by their partner.
For a person who has just undergone a major violation of their bodily autonomy in the form of sexual violence, being unable to access healthcare is a violation of human rights that compounds the initial trauma, said Manisha Shah, senior director of crime-victim assistance at the non-profit group Safe Horizon. “Preventing someone from making a choice about their own body is one of the most powerful and destructive ways to exert power and control,” she said.
When having an abortion isn’t possible for people in these situations, Shah said, abusive relationships become more difficult to escape: “Reproductive rights and the right to live free from intimate partner violence are sides of the same coin.”
Minors face even more barriers to access
Understanding and reporting sexual assaults and abuse may be even more difficult for minors, who might not have the knowledge or support to recognize that what has happened is a crime or how to report it. That’s especially true if their abuser is a family member or authority figure, which is often the case when a child is sexually assaulted. Only 12 percent of child sex abuse is reported to the authorities, according to the National Sexual Violence Resource Center.
“It almost makes my head explode to think about what that would be like for a young child,” Sheaffer said. “Something has happened to them which is a crime, and it’s incredibly wrong in a million ways. What would that even be like, emotionally, to realize, and even have the wherewithal to know what’s happening to their bodies? Who is it safe to tell? What options do they even have?”
Ohio, where the 10-year-old girl became pregnant through abuse, bans abortions after the sixth week of pregnancy — defined as six weeks after the pregnant person’s last menstrual period — and does not include an exception for victims of rape or incest. The girl’s mother reported her abuse to police in Ohio on June 22, according to the Columbus Dispatch. By the time the girl underwent an abortion in Indiana on June 30, she was six weeks and three days pregnant.
At least 36 states also require parental notification or consent for minors seeking abortion care, according to the Guttmacher Institute. “We know that young people tend to involve their parents, but those who do not have very good reasons for excluding their parents from this decision,” Nash said, especially in cases of incest.
Some states allow minors to bypass parental consent requirements by appearing before a judge, which involves navigating a complicated legal and logistical maze. “You’re expecting someone who’s potentially of single-digit age to figure out this process where you have to physically go before a judge and convince them that you are mature enough to be making the decision, on your own, to not stay pregnant,” Howard said. “How do they find this out? How do they get a ride?”
Fewer providers to turn to
Rape victims who manage to qualify for an exception may still struggle to find access in their states as abortion clinics close and providers fear lawsuits. That will likely force many to travel out of state to receive care that they should, by law, be able to access closer to home.
In Mississippi, whose 2018 ban on abortions after 15 weeks prompted the legal challenge that ended with the Supreme Court overturning Roe v. Wade, the state’s last abortion clinic closed its doors earlier this month. Its shuttering coincided with the onset of a near-total ban on abortions, with limited exceptions for rape and saving a mother’s life. “Who’s gonna be the provider now that we’ve closed the only clinic that was left in the state?” Roberts said.
North Dakota, which also allows abortion in cases of rape and incest, will soon lose its last clinic, too.
Physicians at hospitals in these states can provide abortion care for people who meet all of the criteria, but many doctors may not want to take that chance. Caitlin Bernard, the Indiana physician who provided abortion care to the 10-year-old rape victim, is being investigated by the state’s attorney general — who falsely accused her of not filing proper paperwork. “What doctor is going to put themselves out there for that? Nobody,” Roberts said.
As cases like the one in Ohio accumulate, public pressure may force lawmakers to carve out more rape and incest exceptions in their abortion bans, Nash said. But given how unworkable these are in practice, such gestures would be largely empty.
While abortion advocates outline all the unforeseen consequences to even bans with exceptions, many view it as the logical consequence of the Supreme Court’s rejection of a constitutional right to privacy in Dobbs v. Jackson Women’s Health, the case that resulted in Roe’s downfall.
“Any pregnant person should be able to have access to complete reproductive care because we just don’t know everybody’s story,” Sheaffer said. “Nor is it ours to judge.”
Thanks to Lillian Barkley for copy editing this article.