The End of the Rape and Incest Exception

All of a sudden, abortion opponents have abandoned rape and incest exceptions to abortion bans.

Louisiana became the latest state to do so last month, following Ohio, Mississippi and, most notoriously, Alabama. That same month, younger abortion foes in groups like Students for Life of America fired off a letter asking the Republican Party to stop supporting exceptions that before this year had long been standard components of anti-abortion legislation.

Why the sudden shift on rape and incest, and what does it mean? Fights about rape and incest exceptions expose deeply different ideas about the guilt and trustworthiness of women — and about how much popular opinion should dictate abortion politics.

These exceptions weren’t always viewed as standard. The American Law Institute, an expert body, created the rape and incest exceptions in 1959 when proposing a model abortion law. Anti-abortion scholars immediately denounced the idea. Even if women were victims of sexual assault, these commentators argued, these unborn children were innocent.

And, they argued, maybe the women were not really victims at all. A lawyer named Eugene Quay wrote an influential article declaring that as a scientific matter, it was nearly impossible for women to become pregnant as a result of rape — a myth whose influence is still being felt — to make the point that many women would simply lie about sexual assault to get an abortion when they had consented to sex all along.

Across the anti-abortion movement, opposition to these exceptions ran high for years. After Congress passed the Hyde Amendment, a ban on Medicaid funding for abortion, abortion foes fought to eliminate a rape or incest exception, suggesting that women would “cry rape” to get their procedures reimbursed.

This began to change only in the 1980s, when rape and incest exceptions became a third rail. In the previous years, abortion-rights forces had effectively used the lack of a rape and incest exception as a cudgel against the anti-abortion movement. When Republicans in Congress seemed to have the votes to pass a constitutional amendment in 1981 declaring that there was no right to abortion, abortion-rights groups wasted no time in reminding Americans that the move would allow some states to force victims to bear their rapists’ children. They also ridiculed the idea that women could not become pregnant as a result of rape, using it to claim that abortion foes were both anti-science and anti-woman.