First off, I want to talk about an abortion ban that leaves exceptions in place only for instances of rape, incest or life of the mother. The first thing that I want to say about this policy is this: this is a pro-choice position. The proponents can call it whatever the hell they want, but the bottom line is that this position is pro-choice. A person who takes this position is acknowledging that a woman has the right to terminate a pregnancy. What we are actually quibbling about here is who gets to decide when the woman’s reason is good enough. With the classic pro-choice position, the person who gets to decide if the woman’s reason is good enough is the woman. Herself. The rape/incest exception people – their position is that they get to decide if someone else’s (i.e., some other woman’s) reason is good enough. I am pro-her-choice. They are pro-their-choice.
In addition, however, to the extraordinary presumption and paternalism inherent in the position that you – whoever you are – should have more control than the pregnant woman over her reproductive future, is the absolutely, unequivocally impossible enforcement situation that this policy would create. So, we criminalize abortion but leave in place exceptions for rape, incest and the life of the mother. As a policy matter, what does this mean?
Well, it involves me. That is pretty much a certainty, because I am a prosecutor and I prosecute people accused of crimes. So if we find ourselves in a situation where women who get abortions that don’t fall under one of those exceptions have committed a crime, then I’m going to be the one making the decisions about what happens next. That’s my job. And I have to say, I am more than a little bit uncomfortable about being legally mandated to prosecute other women because they have terminated a pregnancy when it is a bunch of non-pregnant people – many of whom are men who can’t even become pregnant – who don’t think her reason was “good enough” to be “legal”.
But, please, enlighten me. How do I decide if prosecution is warranted? And, by the way, how does a woman who qualifies for one of these exceptions go about availing herself of the exception? Are we going to take the pregnant woman’s word for it that she was raped (somehow I suspect that the answer to this question will be “no”)? Is there going to be a form that she has to fill out? Will she be placed under oath? Will there be post-abortion investigations by the police to ensure that she was truthful when she said that she was raped? If we aren’t going to just take her word for it, what will be the mechanism for fact finding we will use?
Will there be some sort of hearing, in a public courtroom, before a judge, where a woman is required to prove that she was raped? How much humiliation will we require the woman to endure during this hearing? Will her attire at the time of the “rape” be relevant? How about her reputation for chastity? Will Rule 412 apply? Will she be subject to cross-examination? Will she have the right to counsel, court appointed if she cannot afford to her own lawyer? Who will represent the interests of the state/fetus? Will it be someone like me, with a similar job title? What will the burden of proof be for the hearing? How will we expedite the hearing so that the abortion can occur within the appropriate time frame, given that there is a window of opportunity that cannot be missed? Will there be an appeal process? Has ANYONE who wants to criminalize abortion while leaving open some exceptions spent even seven seconds considering any of these questions?