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Redefining Rape

January 28, 2011 - by Donny Shaw

Nick Baumann takes a look at the Republicans’ bill to limit access to abortions, the No Taxpayer Funding for Abortion Act, and finds an especially odious provision:

With this legislation, which was introduced last week by Rep. Chris Smith (R-N.J.), Republicans propose that the rape exemption be limited to “forcible rape.” This would rule out federal assistance for abortions in many rape cases, including instances of statutory rape, many of which are non-forcible. For example: If a 13-year-old girl is impregnated by a 24-year-old adult, she would no longer qualify to have Medicaid pay for an abortion. (Smith’s spokesman did not respond to a call and an email requesting comment.)

Given that the bill also would forbid the use of tax benefits to pay for abortions, that 13-year-old’s parents wouldn’t be allowed to use money from a tax-exempt health savings account (HSA) to pay for the procedure. They also wouldn’t be able to deduct the cost of the abortion or the cost of any insurance that paid for it as a medical expense. 


“This bill takes us back to a time when just saying ‘no’ wasn’t enough to qualify as rape,” says Steph Sterling, a lawyer and senior adviser to the National Women’s Law Center. Laurie Levenson, a former assistant US attorney and expert on criminal law at Loyola Law School in Los Angeles, notes that the new bill’s authors are “using language that’s not particularly clear, and some people are going to lose protection.” Other types of rapes that would no longer be covered by the exemption include rapes in which the woman was drugged or given excessive amounts of alcohol, rapes of women with limited mental capacity, and many date rapes. “There are a lot of aspects of rape that are not included,” Levenson says.

Let’s take a look at the legislative text. Sec. 309 contains the new stipulation:


‘The limitations established in sections 301, 302, 303, and 304 shall not apply to an abortion–

‘(1) if the pregnancy occurred because the pregnant female was the subject of an act of forcible rape or, if a minor, an act of incest; or

‘(2) in the case where the pregnant female suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the pregnant female in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself.

…as Attorney Sterling notes, this isn’t clear at all. What in the world is non-forcible rape? When a women is drugged? When she has had too much to drink and is unable to defend herself? When she doesn’t fight back hard enough because she is in shock?

On the incest exception, note the inclusion of the language, “if a minor.” That means that a woman who is 18 and the victim of incest would no longer be eligible for abortion services under Medicare. In fact, under the bill she wouldn’t be able to use any health plan bought on the soon-to-be-created insurance exchange, even if she were paying for the abortion section of the coverage with her own funds. That’s how the bill works.

The bill already has 173 co-sponsors, including Majority Leader Rep. Eric Cantor [R, VA-7], and Speaker Rep. John Boehner [R, OH-8] recently called it “one of [the Republicans’] highest legislative priorities.” You can expect it to move through the committee process and onto the House floor for passage soon. Obviously, Senate Majority Leader Harry Reid [D, NV] isn’t going to be calling this bill up for a vote in the Senate any time soon; Reid and the Democrats want to preserve the status quo (i.e. the 1976 Hyde Amendment) that already bans the use of federal funding for abortion services. Still, the Republicans can use the same procedure they did for the health care repeal to bypass committee and put it directly on the legislative calendar. That allows them to call for the bill to be considered and could force a test vote on redefining rape, expanding the Hyde restrictions, and making it permanent law.

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