In the wake of the Todd Akin firestorm, Mitt Romney and a flip-flopping Paul Ryan have emphasized that their anti-choice stance excludes rape. In a Romney administration, abortions would be outlawed except in the case of women who have been raped, the Republican ticket has promised.
So here’s an idea, first suggested by my daughter and one of her friends: Who’s going to be the first reporter to ask Romney or Ryan how that would work? How would they implement that exception?
Would a woman’s rapist have to be convicted in court? How would that work, given that in most criminal cases it takes longer than nine months from when the crime is committed to catch the criminal (assuming the criminal is caught), prepare charges and reach a verdict. In fact, the window would be significantly less than nine months; it would start from when the pregnancy is discovered and end somewhere around the 16 to 20 weeks left during which abortions can be performed most safely.
Or would the exception be triggered just on the woman’s say-so? (Maybe that’s part of what the mentally challenged Akin was talking about when he referred to “legitimate” rape.)
Or would there be some kind of new quasi-judicial process falling somewhere between a full-fledged trial and a simple statement of victimization? Would each state have to set up a new tribunal to handle these “cases”? Who would be the judges or juries? What evidence would be admissible? Would there be an adversary engaged to challenge the woman’s claim and whatever evidence she offers? Who would that be? Could those challenges include references to her prior sexual history? Would there be criminal penalties for perjury? And, if as the Republican platform decrees, the outlawing of abortion should be implemented via a “human life” amendment to the Constitution, would Romney suggest that language defining rape and how it would qualify for the exception also be written into the Constitution? How would he craft language establishing that a fetus that is the product of rape is not a human life?
If each of these scenarios seems so absurd that it leaves Romney or Ryan tongue-tied when asked these simple, practical questions, maybe that says something about getting the state involved in these decisions, let alone rewriting the Constitution to codify them.
Beginning in 1976, a federal statute known as the Hyde Amendment inserted government into a sliver of this issue, with results that cannot be satisfying to either side. The Hyde Amendment generally forbids federal funding for abortions except in cases of rape or incest or when the woman’s life is in danger. The blog post last week by the Washington Post‘s Dylan Matthews found that states generally require a doctor’s certificate or a police report for women to qualify for the rape exception. However, Matthews reported, quoting from a study from Ibis Reproductive Health, that “over half of eligible abortions—that is, of pregnancies due to rape or incest or in cases where continuing the pregnancy would threaten the mother’s life—conducted for Medicaid beneficiaries were not reimbursed by the program. By and large, hospitals and doctors who did not get Medicaid reimbursements said that the paperwork for getting the money was too onerous, and it was easier to fund the procedures from nonprofit groups that focus on assisting low-income women with abortion funding.” In other words, the abortions happened anyway, but the exception provided for in the law was typically not implemented. In other cases, Matthews reported, women seeking coverage under the exception could not meet the paperwork requirements and, because they were not able to pay for an abortion, gave birth to babies they claimed were the product of rape.
Matthews concluded by quoting Stephanie Poggi, the executive director of the National Network of Abortion Funds, as saying: “Basically these exceptions don’t work. It’s really a myth that there is coverage that is still provided.”
The Romney-Ryan exception presents far greater challenges because it is not simply about insurance coverage. The only issue under the Hyde Amendment is who pays for an abortion for a woman on Medicaid, not whether any abortion for any woman can happen. Thus, women are exponentially more likely to seek the exception under the Romney-Ryan plan than they have under the Hyde Amendment. And those opposing abortions would be equally more likely to contest those exceptions to prevent what they view as murder.
So these are hardly tongue-in-cheek questions. Nor is the broader question, which only the late Tim Russert ever regularly asked anti-choice politicians: With Romney and Ryan planning to make any abortions that are not subject to their rape or incest exceptions a federal crime, what is the specific prison term they would impose on offending women? And if they would penalize only doctors, wouldn’t that undermine the enforceability of the law as well as their stated principle that abortion is murder?
Steven Brill , the author of Class Warfare: Inside the Fight To Fix America’s Schools, has written for magazines including New York, The New Yorker, Time, Harper’s, and The New York Times Magazine. He founded and ran Court TV, The American Lawyer magazine, ten regional legal newspapers, and Brill’s Content magazine. He also teaches journalism at Yale, where he founded the Yale Journalism Initiative.