The anti-abortion statute signed by the governor of Alabama this week is shocking partly because it aims to outlaw all abortions, including those for unwanted pregnancies that are the result of rape and incest. The Alabama law (and other similar laws in Missouri, Ohio, Kentucky, and Georgia, with more on the way) is even more broadly shocking because Roe v. Wade has been the law of the land for nearly a half-century, supporting women’s efforts to achieve the status of full citizenship. The new Alabama law endorses the end of this project.
Some members of the Alabama legislature have admitted that the criminalization of abortions as a response to rape and incest amounts to a grandstand play, a tactic to hasten judicial review and the demise of Roe. This may or may not prove to be a sound strategy. It is definitely an innovation, if a logical culmination of decades of an anti-abortion position that degrades pregnant individuals in the interests of the “unborn child” or the “fetal person.”
Before Roe, rape and incest were usually not mentioned in the 19th century laws criminalizing abortion. The American Medical Association did not consider rape a justification for abortion primarily because they believed women who claimed rape might be lying. In 1904, after state anti-abortion laws were on the books everywhere, the editor of the Journal of the American Medical Association reminded a doctor that women rarely become pregnant because of a real rape. He added, “The enormity of the crime of rape does not justify murder.”
Nevertheless, whatever any given anti-abortion law said, many doctors agreed that a pregnant victim of rape or incest should be spared the horror of coerced pregnancy and motherhood in these cases. In the late 1950s, the obstetrical staff at more than two dozen California hospitals were polled regarding the hypothetical case of “Miss C.,” a 15-year-old girl who had been raped and impregnated by an inmate at a state institution and was suffering “emotional distress” as a result. Despite the status of abortion as a felony in California, around half of the doctors participating in the survey were willing to break the law to help Miss C. Many of the others believed the girl could find her own “therapeutic” abortion if she shopped around hospitals in San Francisco and Los Angeles.
Less than 20 years later, in the mid-1970s, the Hyde Amendment set the standard for abortion restrictions designed to limit the procedure in the legal era, chiefly by imposing restrictions that refused federal financial assistance for Medicaid recipients. The amendment entrenched a two-tier system of women’s reproductive health care, throwing up obstacles to access for low-income women as well as other people whose health care is paid for with federal funds, including through the Indian Health Service, the Children’s Health Service, the military, and the prison system, among others. These programs denied abortion funding except, once again, in cases of rape, incest, and threats to the life of the pregnant individual.
While these exceptions have held over the past 40 years, other developments have supported judicial decisions and legislation that eclipse the rights of pregnant people in the interests of the unborn. The anti-abortion movement in the 19th century justified criminalization as the best way to protect women, rarely bothering with questions about when life begins. But that changed in the 20th century. Policies and practices began treating the interests of pregnant people and the fetus as hostile and focused on protecting the rights of the latter.
Fetal imaging, widely used for the first time in the 1970s, made an impact. These images showed a human-like fetus alone in the uterine environment. Women were rendered invisible, mere housing for the inch-long “baby” who, according to the new pregnancy experts, required a morally nourishing environment. Providing this defined the pregnant woman’s work and the meaning of pregnancy, overriding previous ideas about motherhood as women’s destiny.
Despite the federal Pregnancy Discrimination Act in 1978, employers began routinely sidelining pregnant employees from various environmental or physical conditions at work, often invoking the need to protect the fetus, not the employee, and firing the ones who complained. Drug and alcohol programs excluded pregnant women while drug laws targeted suspect pregnant women, especially poor women of color, denying them treatment while charging them with harming their unborn children.
By now, though, elevating the rights of the “unborn” over the rights of pregnant women is a long-term anti-abortion strategy. The Alabama ban that ignores the rape and incest exemptions reflects this trend. Whether that state’s strategy is savvy or not, apparently “fetal personhood” reigns as the most effective argument for overturning Roe v. Wade.
It remains to be seen whether the 70 percent of Americans who want to see Roe v. Wade preserved can defeat those who want laws that coerce reproduction and that degrade the dignity and safety of pregnant individuals. With such a high level of support for keeping Roe in place, the Republican Party may be in danger of miscalculating its advantage on this terrain.
But regardless of what happens, the removal of widely popular and accepted rape and incest exemptions from the most recent bans show how far the anti-abortion movement has come in emphasizing the sanctity of an unborn fetuses’s life over the mother.
Rickie Solinger is a historian and the author or editor of 11 books about reproductive politics and satellite issues.
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