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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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  • cfallin 01/28/2011 8:46am

    SUPER EXAGGERATION BLOGGER AT OPEN CONGRESS!!!! I think this blog over exaggerates the bill, in most states a 24 year old and a 13 yr old is considered forcible rape because the child is below age of consent. Woman says no it’s forcible rape so this is still an exaggeration. Now to the 16 year old who consents but with a 26 year old that falls into true statutory rape, I think that it’s the responsibility of the 26 yr old to pay…. But The rapist should pay, not the government and if the woman chooses to have the baby he still should pay child support through the state…. Medicaid pay up front, rapist pay back medicaid.

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    jnww 02/01/2011 11:51am

    How can one possibly exaggerate rape?

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    nebeltanzerin 02/02/2011 1:30pm

    You and I both know that’s not how the world works. Rarely are rapists willing to do anything financially for their victims. Saying they should be forced to pay assumes that the women they rape can prove to a court that they were raped by a specific person – and even then, you get into the ballpark of all the people that evade their child support payments and get away with it. The system as you say it “should” work – doesn’t work.

  • jabariabramson 01/29/2011 5:21am

    Just like murders, drug dealers and white collar criminals should pay but chances are they never will/do. They’re criminals. It makes sense of course to make the rapist pay but that’s assuming the rapist stays around, is caught, has the funds, etc. Rapist pay back Medicaid? How would they track funds like that, it’s tough enough as it is. And if he doesn’t have any money, it’s gonna be hard for a felon to get employment to pay that back.

  • yoder 01/29/2011 12:53pm

    The GOP is now “that uncle nobody talks about”. This latest attack on rape victims is slimy and sick.

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    mouseissue 01/30/2011 12:08pm

    I’m not a fan of the GOP or of the masters of misinformation, the so-called Progressives… Both are slimy!

    But as an independent observer, over time I’ve noticed far more of it oozing from those on the “left” than those on the “right”.

    And Yoder, based on your posts, you seem to have a sexual fetish with the GOP.
    If you can, try to keep your remarks above the “gutter” line.

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    yoder 01/30/2011 3:13pm

    Wow personal attacks. Classy.

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    mickawhat 02/02/2011 9:23am

    I created this account just to comment here… That was a very grade school age comment there about fetishes.

  • fakk2 01/30/2011 1:23pm

    I guess the bi-partisanship of OpenCongress doesn’t apply to the blogs?

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    creativegal 02/03/2011 10:51am

    Yeah, I just joined this site a few minutes ago and noticed the exact same thing.

  • yoder 01/30/2011 3:31pm

    I agree that bipartisanship is a very desirable goal, however, when you are trying to have a conversation with someone who keeps punching you in the face, you would be ill advised not to start punching back.

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    fakk2 01/30/2011 9:20pm

    Definitely understand that, I probably should’ve made it clear I was wondering about the blog article itself, not so much the comments. Sorry I didn’t make that distinction sooner.

  • uncleray 02/01/2011 5:00am

    The Republicans harped “Where are the jobs”.
    China is eating our lunch while time and energy is being spent
    on things that can wait rather than the problem at hand.

    “Where have all the Statesmen gone?”

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    mouseissue 02/01/2011 9:15am

    That’s the Billion Dollar Question, uncleray!

    We have a very small handful of statesmen in Congress.
    We need MANY MORE statesmen in desperately.

    Politics WILL NOT solve this nation’s ills.
    Statesmanship will!!!

    We need more Ben Franklins, Thomas Jeffersons, etc..

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    mickawhat 02/02/2011 9:32am

    We did not elect Statesmen into the congress… we elected many people that have zero experience in how to create jobs, much less do it on a government level. They have zero policy experience with legislation.

    WE elect people based on perceived religious views, there fired up personality, and their looks. It has nothing to do with their actual quality of leadership as a general rule.

  • Cruizerdave 02/01/2011 8:19am

    They just need to remove the word “forcible.” All rape, be it drugged and raped, or tied down and raped, is forcible.

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    mouseissue 02/01/2011 9:19am

    You are right, Cruizerdave!

    Here’s the definition of the word “rape”:

    –as a noun
    an act of sexual intercourse that is forced upon a person.
    the unlawful compelling of a person through physical force or duress to have sexual intercourse.
    statutory rape.
    an act of plunder, violent seizure, or abuse; despoliation; violation: the rape of the countryside.
    Archaic . the act of seizing and carrying off by force.

    –as a verb (used with object)
    to force to have sexual intercourse.
    to plunder (a place); despoil.
    to seize, take, or carry off by force.

    –as a verb (used without object)
    to commit rape.

  • jnww 02/01/2011 11:55am

    Republicans are the ones crying for small government but it would appear they are the biggest government makers and moral imposers of them all. Is there any minority they haven’t gone after? Gays, Women, African Americans, Muslims, immigrants, Japanese, Unions… the list goes on! I donated money to Planned Parenthood in light of this news and do every single time a lawmaker attempts to chip away at reproductive freedoms.

  • PolicyNurse1 02/07/2011 5:11pm

    What do you think the purose of this bill is? Is it to disuade women from having abortions by hitting them financially? Or is is just an overall lack of concern for women’s reproductive rights in general by elected officials who obviously do not care about the women they are elected to serve?

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  • 4thBattalionDevilDog 02/20/2011 3:08pm

    I’m not surprised. Having seen first hand how the government can turn a blind eye on all the rapes in the military. This wasn’t a shock at all.

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  • pjlatombo 11/09/2011 6:59am

    Sound exaggerated to me but I enjoy reading your story. chronic yeast infection

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