Alito, Rape, and Incest

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Posted in: Reproductive Law

On May 2, someone—perhaps a conservative employee of the Supreme Court—leaked a draft of Justice Samuel Alito’s (SA’s) majority opinion in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade and Planned Parenthood v. Casey. I have written a number of outraged posts, here and elsewhere, reacting to the legal substance as well as the tone of SA’s opinion. Here I want to focus on the Mississippi law’s lack of a rape or incest exception and SA’s failure to discuss this feature of the law he saw fit to uphold.

Rape/Incest Exception

In a law prohibiting abortion, a rape/incest exception specifies that victims of rape or incest have a legal right to terminate the resulting pregnancies. Such a right is important, quite apart from the general right to abort, because a man who commits a rape against a woman or incest against a girl has forced his victim into a pregnancy to which she in no way consented. By contrast, people who are against a right to abortion commonly say that by having consensual intercourse, a woman “agrees” to a resulting pregnancy, much in the way that a man who has consensual intercourse thereby undertakes eighteen years of support for any child or children that result. The two situations (the woman’s and the man’s) are quite distinct, but the argument is that everyone knows that sex often leads to pregnancy, so people who have sex thereby “assent” to the pregnancy that follows along with its sequelae.

In rape/incest, though, the perpetrator initiates a pregnancy inside his victim against her will. For that reason, some abortion opponents do recognize as legitimate an exception for rape or incest. But not Mississippi and not Sam Alito.

Why Not?

To be sure, some folks oppose virtually all abortions, regardless of the circumstances. Opponents of a rape/incest exception sometimes say, “Did I Deserve the Death Penalty?” (with a picture of a woman supposedly conceived in rape). If the innocent zygote or embryo or fetus were not imposing intimate physiological burdens on the pregnant woman, that argument might be persuasive. But other opponents of a rape/incest exception have a different reason for their opposition. They borrow from a misogynist trope that Sir Matthew Hale—a misogynist jurist that Sam Alito cites in his leaked opinion—inflicted on American law for what turned out to be over three hundred years. Hale declared, and trial judges then instructed juries, that rape is easy to charge and difficult to defend and that juries should accordingly bring a special skepticism to evaluating the credibility of rape victims. The sentiment was that even though declaring oneself a rape victim was and is stigmatizing to this day, women should be presumed liars in this domain. SA cites Hale for a different proposition, but I suspect that SA’s complete indifference to the predicament of rape and incest victims is no coincidence. (I’ll leave alone the fact that Hale sentenced two women to death for witchcraft).

Alito, Rape, and Incest

If SA accepts the thinking of Matthew Hale regarding the prevarication of alleged rape victims, he might readily worry about a rape/incest exception to an abortion ban. What if a woman lies? How will we know what her real reason is for seeking a termination? And wouldn’t the incentive to lie be quite strong, given that she wants an abortion and—under a rape and incest exception—can get one only if she says she was victimized? In a sense, the unwanted pregnancy gives rise to the woman having a motive to lie that is real (by contrast to the misogynist fiction applied to women testifying in criminal prosecutions against their rapists). Just as the accused man has every reason to say “I’m innocent” even if it is a lie, the woman who wants an abortion truly does have a reason to say she was raped if that is the one way she can access a termination.

One could deal with the woman’s predicament in another manner, of course, one that would be unacceptable to SA. One could say that because some men force themselves on women and women become pregnant as a consequence, we ought to protect access to abortion for all women, since we cannot definitively tell which pregnancies resulted from rape and which from consensual sex. SA could have said, in fact, that forced pregnancy is enough like rape by the State that the law must not prohibit abortion, period.

But SA was not about to take that step. He has been waiting at least since the Supreme Court reversed his decision as an appeals court judge in Planned Parenthood v. Casey to overrule Roe and Casey and to give voice to his Catholic belief that a zygote could reasonably be characterized as an “unborn child” (a characterization I have compared to calling an apple seed an “unpicked apple”). SA says nothing about the predicament of a pregnant girl or woman (or trans man or nonbinary person) who never agreed to be penetrated and turned into an unwilling creator and incubator for forty weeks. Perhaps he worries that women would lie, the concern of his hero Matthew Hale. Or perhaps he has just bought into the cutaway view of pregnancy that sees the zygote, embryo, or fetus but not the person whose blood and minerals and oxygen, etc. get diverted from her to the zygote, embryo, or fetus. Perhaps the next draft will solve the mystery, though I doubt it.

The main takeaway is that SA could not care less about the individuals who will, because of his pronouncements, become creators and incubators against their will with all that entails or who will die of sepsis or bleed to death on an incompetent practitioner’s dirty table. He calls dedicated abortion providers by the slur “abortionists,” but that is the word for the entrepreneurs who rush into the back alley when real doctors and nurses stop providing the procedure. It is therefore SA who will usher in the real “abortionists” by turning his back on the women of America. It will be he, the one who ignored the cries of rape and incest victims inducted into reproductive servitude by a rapist and his getaway car, the State, who will have the blood of thousands on his hands.

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