June 27th, 2022

The Abortion Exception(s) – I Got Questions

With Roe v. Wade dumped on its head last week by the Supreme Court in Dobbs v. Jackson Women’s Health Organization, overthrowing 50 years of precedent, a number of new issues are presented. A great many of them are political issues, as NPR discusses regarding the legitimacy of the court and how this may affect other existing constitutional rights.

I deal today with a different issue, one of practicality and proof. In many states, there will be exceptions for rape and incest. The public will demand it, even in many red states.

The problem? If the only way for a desperate woman to get an abortion is to assert rape or incest, won’t that increase the number of such allegations? Isn’t that likely if the door of easy access is slammed shut?

Will some accusations be bona fide? Yes they will. Some who might have otherwise remained silent will now have an additional, and immediate, reason to come forward.

But will some not be bona fide? Probably. Desperate people, after all, do desperate things.

Will an abortion be a defense to rape? Well, if the woman has an abortion, and this was the only way to obtain one, mightn’t a defense lawyer argue, “This was a consensual act, She only made the allegation to get the abortion.” Will that have an impact when the defense is consent?

Will a rape allegation made solely to get an abortion (assuming you actually knew that answer) serve to denigrate those who have been raped (assuming you actually knew that answer), by diluting accusations? Will this make convictions for rape even more difficult than they are now?

And will an allegation be enough? What kind of proof will the state demand? Will she need state approval? What if an anti-abortion bureaucrat state dilly-dallies? And what if the acquisition of the proof — which may entail, for example, searches of electronic devices — takes a few months? Will the woman have to wait? Does she get the abortion only with a conviction of the accused? And if she does have to wait, well, you know where that is going.

Other have written of the many problems this decision will have, oft times dealing with the issues of FDA approved drugs, traveling out of state to get an abortion, telemedicine from out of state doctors, funding abortions, etc. Expect a flood of new legislation, all of which will be challenged.

I approach this from the perspective of one who does not do criminal defense law. But I do look at proof all the time. Regardless of whether an allegation is civil or criminal, proof is always an issue for the person that approaches Incident X with an open mind, as we all should.

Add this to the list. The laws and litigation that will flow from this day forward will be immense given the issues that have been raised. Will some new standard of proof be invented?