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Many people and politicians who oppose abortion propose to ban the practice but make exceptions for cases of sexual assault. Under such a regime, anyone could claim to be sexually assaulted and thus demand a legal abortion. On one hand, the legal system could believe all victims and functionally legalize abortion for anyone willing to lie (and people who think abortion restrictions are immoral and tyrannical would presumably have no moral compunctions about doing so). On the other hand, the legal system could require evidence of assault. Given the time between usually unreported assaults and the time when a woman learns she is pregnant, any evidence could be difficult to come by. Depending on the degree to which evidence is accepted, restrictions could range from making the exception trivially easy to falsify to making the exception almost never usable and attempting to invoke it would be deeply traumatic for real victims.

How do proponents of abortion bans, except for instances of sexual assault, propose to restrict access to real assaults?

Note: Many anti-abortion folks believe that life begins at conception and thus any abortion is unconscionable, even in cases of assault. I'm not asking about their views or policy prescriptions. Similarly, many pro-abortion folks think life begins some time after conception and think restrictions on abortion violate bodily autonomy for no compelling reason and is thus unconscionable. They almost certainly support easy access to exceptions as a way to strengthen abortion rights. I'm similarly not asking about their views or policy prescriptions.

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    Now, I could be wrong about the masses here, but anecdotally, people I talk to don't really care about the mechanism, because they generally would like to ban it all. They may accept the assault exception because it's politically expedient, but I don't think they'd have any issue with it being very difficult to actually obtain the exemption.
    – Geobits
    Commented May 16, 2019 at 16:40
  • I feel like the title needs some editing to avoid potential confusion. The title could be read as people trying to get access to sexual assault.
    – Obie 2.0
    Commented May 17, 2019 at 1:10
  • @obie2.0 feel free to edit for clarity
    – lazarusL
    Commented May 17, 2019 at 10:08
  • why can't they just require a police report? They don't care about un-reported assaults...
    – dandavis
    Commented May 17, 2019 at 19:24
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    Filing a false police report is already another crime, with it's own consequences.
    – dandavis
    Commented May 17, 2019 at 19:39

4 Answers 4

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Mississippi has a law which bans abortion except to save the mother's life or in cases of rape, so it provides an example of how such a law can be defined. The rape exception requires filing formal charges for rape with the police or other law enforcement, rather than a conviction.

The legislation was originally passed in 2018, but did not come into effect until 2022 when Roe vs Wade was overturned. The background can be found in the Wikipedia article Abortion in Mississippi.

The specific text of the law is MS Code § 41-41-45 (2020)

  1. No abortion shall be performed or induced in the State of Mississippi, except in the case where necessary for the preservation of the mother's life or where the pregnancy was caused by rape.

  2. For the purposes of this section, rape shall be an exception to the prohibition for an abortion only if a formal charge of rape has been filed with an appropriate law enforcement official.

As an aside, waiting for a conviction would not be practical, especially if there were appeals, because the time it would take would make it likely that the baby would be born before the legal process had concluded. And there are significant penalties for filing false claims with the police.

A hypothetical alternative would be to require a declaration under penalty of perjury (not related to abortion, but a declaration on a form is required in the UK where social security benefits are restricted to the first two children except in the case of rape).

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While I agree, those who propose abortion bans, don't think about the consequences of such bans, they may not have to. The U.S. DOJ, Office on Violence Against Women, provides assistance and training to police for Understanding, Investigating, and Responding to Sexual Assault.

Because sexual assault is a crime, as soon as a woman claims sexual assault as a reason for getting an abortion, the police will be called, an investigation begun, social workers involved, etc.

Assuming an actual assault and sensitive, trained assistance, the woman will more likely respond favorably.

Assuming a mere claim, just to get an abortion, the woman will have to claim forgetfulness, fabricate a story, or, simply, be uncooperative. Investigators are trained to recognize patterns that may reveal false statements. Thus the claim could quickly unravel, exposing the ruse.

Depending on how the law is written, and because it is a law, it may be necessary for the investigator to go before a Magistrate or Judge to present evidence for an official approval of the abortion.

Note: I am not a lawyer, the above is based on my decades of life experience.

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  • However the gap between "suspected false report as pretext for abortion" and "proof beyond reasonable doubt that this report was false" is a very long one. I suspect that many cases would fall into this gap. Its also a pretty brutal process for all concerned. Commented Mar 8 at 13:51
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    One other issue: in the very many cases where "consent" is his word against hers, "she's only alleging rape to get the abortion" becomes a compelling way to cast doubt on her testimony. So that means yet more rapists walking away. Commented Mar 8 at 14:08
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    "the police will be called, an investigation begun, social workers involved" In many parts of the US that's pretty optimistic. In too many cases you get assigned a case number and maybe a formal statement gets taken, which then gets no further action. npr.org/2018/12/05/673795500/… Commented Mar 8 at 14:12
  • In quite a few locations, your grounding assertion of "sensitive, trained assistance," is outside the scope of what victims can expect from police.
    – arp
    Commented Mar 13 at 3:12
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There is a fair bit of evidence that while rape and life-saving exceptions to abortion laws are included to make the laws more acceptable to the general population they are deliberately difficult to access in practice to appease extremists.

Less than a third of rapes are reported to the police, for a variety of reasons. (Source: US Gov't statistics (PDF)1.). Laws that permit abortions to save the mother's life don't generally outline any method by which a doctor can be sure that a given abortion won't lead to criminal prosecution.

“The more confusing it is, the more likely there will be no abortion in the state of Tennessee,” he said. “That’s a win for people who are opposed to abortion.” -- Bob Ramsey, Tennessee State Representative

For an older example, laws that allow a judge to permit a minor to get an abortion without her parents' permission don't require judges to actually hear such cases, and some states only had one judge willing to hear such cases. (Citation needed.)

(Note: please forgive the lack of gender-neutral language, the vast majority of pregnancies and abortion patients are women or girls.)

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On the other hand, the legal system could require evidence of assault. Given the time between usually unreported assaults and the time when a woman learns she is pregnant, any evidence could be difficult to come by.

Highlighting is my own. Wanted to point out that the problem here is that the claim of difficulty in procuring evidence is wrong. Forensics science revolves around the golden rule known as Loccard's Exchange Principal, which holds that any time two things interact with one another, they will exchange elements of the interaction, no matter how small or fleeting, and without these exchanged elements, we must assume that the exchange never occurred.

A Pregnant woman who is seeking a Sexual Assault Abortion will usually have some evidence of the assault occurring. There are many terms for the most common type of evidence found, but for simplicity's sake, lets call this evidence the BABY that is inside of her.

Again, as you asked, I will not for the purposes this answer, discuss when it can be defined as human or has obtained personhood and nothing here should be construed as doing so. However, there is no documented medical evidence of a pregnancy that did not involve a male human. Everyone has come to the realization that, sexaul reproduction means that your parents had sex at least 1 time in their life time... and you're the evidence of that.

Having children is genetic: If your parents did not have kids, you aren't likely to be having children either. So the fact that a woman is pregnant means that there is enough genetic material of the fathers that still exists inside of her. The child is going to have a 50% identical match to exactly one male, which is good enough to go find the guy and ask a few question about the night they got together as well as search for eyewitnesses and ask people who are looking. It's pretty easy to find the man who is the daddy, since we have the baby and thus half of his DNA. Even if a genetic match is not 100%, we are able to tell how distantly two people by DNA... such that a match of 0.01% will likely be a 6th cousin. In a large familial extension, out to sixth cousin it's likely that a stronger match is going to be found as the chances that a person with a criminal record or having a career in teaching, law enforcement or military are likely to be identified in a CODIS system. Even submitting to DNA family tree company could trigger a CODIS hit, as they do share DNA sampling with law enforcement. It's not an uncommon news story to hear of a cold case being solved because a DNA family tree company submitted DNA that matched with an unidentified suspect DNA sample added by investigators. (Fun fact: At least 1/4 of all people on Earth are genetically related to Ghengis Khan and only one President of the United States, Martin Van Buran, was not a direct descendant of Prince John of England... the same one Robin Hood fights. Even then, that's direct descendants. Van Buran still counts an ancestor of Prince John among his relatives, meaning all U.S. Presidents, even Obama, have a connection to the British Monarchy... and we know this because DNA).

Since a parent and child have 50% of DNA in common, it's pretty easy to find the dad in such a case.

Furthermore, as none of the abortions in these laws criminlize the mother for getting an illicit abortion, the standard of proof could be considerably lower than Beyond Reasonable Doubt. Again, for academic purposes, I will not discuss how low, but stating that this standard is only used in criminal cases and thus we don't happen to be absolutely certain she's telling the truth, but probably mostly certain.

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    "If your parents didn't have kids, you aren't likely to have children either" - well, if your parents didn't have kids, then you don't exist.
    – gnasher729
    Commented May 16, 2019 at 21:19
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    The question concerns proposed laws that would ban abortion except in the case of rape. You discuss how you'd find out who the father is, but not how the state would determine whether or not the conception was caused by rape, and thus eligible for this exception.
    – divibisan
    Commented May 16, 2019 at 22:14
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    @gnasher729: That is of course the joke.
    – hszmv
    Commented May 20, 2019 at 13:24
  • @divibisan: Well, knowing who the father is could be a very important step in confirming the rape allegation. I did not go into specifics beyond that because of the idiosyncratic nature of an individual case in determining any standards. In some cases, it could be fairly easy to determine, but in others, it could be much more difficult in making a determination.
    – hszmv
    Commented May 20, 2019 at 13:28
  • Finding the father of a fetus based on a DNA sample is non trivial, and paternity by itself is not evidence of rape, merely of sexual contact.
    – arp
    Commented Mar 8 at 3:42

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