Abortion in America


The Akin case is similar. Todd Akin spoke about “legitimate rape” because of abortion laws associated with rape. In most places in America where abortion is legal, rape (or incest) is one of the deciding factors. Akin was trying to raise the point that he thought it should always be illegal (which it is in the majority of US states anyway) because rape rarely results in pregnancy.

I don’t want to be a jerk and distract from Cam’s central point here — go read his post! — but I keep seeing this misunderstanding come up, particularly among younger Australians.

Abortion on demand is legal everywhere in the United States. This is because of the 1973 Roe v Wade Supreme Court decision that found the right to privacy in the Constitution protected abortion. This right was reasserted in 1992 by Planned Parenthood v Casey.

The Court will permit state governments to regulate abortion, which has had the effect of some procedures (for instance, dilate and extraction) being banned in some places, and others imposing a fetal viability test. But the Court continues to uphold the principle that women in the United States have a right to seek an abortion for whatever reason they choose, and the state must not place an undue burden on her access to the procedure.

That’s why much of the work of anti-abortion activists involves testing the limits of this right — making it harder for women to access abortion procedures. That’s why you hear about governments passing laws regulating the width of the hallways in abortion clinics, or requiring minors to get parental consent, or mandating that women receive an ultrasound before getting the procedure. These are all serious attacks on a woman’s right to choose and should be fought. They make it harder for American women to make use of a right guaranteed to them by their nation’s founding document. But they do not change the fundamental truth thatin the United States of America, abortion is legal.Whether you’re in Manhattan or Mississippi. Buffalo or Birmingham.

The “except for rape or incest” clause is a rhetorical stance rather than a legal one, although when states ban certain procedures, the Court requires them to make exceptions for when the life of the mother is in danger, and often rape or incest exceptions are made here as well. But, usually, “except for rape or incest” is a way for anti-abortion politicians (particularly Catholic Democrats) to moderate their rhetorical opposition or for pro-choice activists to accentuate the extreme views of a political opponent. (“He doesn’t even support abortion after rape or incest!”)

The confusion here is partly due, I think, to tactics by pro-choice activists — and I stress my criticism isn’t particularly strenuous, because internecine conflict isn’t very helpful and because pro-choice activists have a lot more experience and make a lot more effort in this regard than I do. Pro-choice activists are very good at accentuating the threats to legal abortion on demand, and I understand that this a good way of drawing attention to a serious issue. But I think they should be equally active in asserting that, in America, women have a right to choose, a right that no government can take away. (Absent a Supreme Court decision.) This is a right like free speech, the free exercise of religion, or to bear arms: It’s in the Constitution. Anti-choice activists want to make illegal something that the Constitution keeps legal.

I think this is something Australians should recognize about the United States as well. America is a stronger protector of abortion rights than we are. It often seems that abortion rights are more tenuous in the United States because the issue is much more politically salient. But the truth is that abortion is a legal procedure everywhere in America. The same is not true in Australia.