States of (No) Exception and the Purchase on Choice

Process photo from "ABORTION ON DEMAND WITHOUT APOLOGY," Beck Levy/Astropress (2012)
Process photo from “ABORTION ON DEMAND WITHOUT APOLOGY,” Beck Levy/Astropress (2012)


Bodily autonomy—that’s something you can’t purchase. Or is it?

We have a situation where most restrictive laws surrounding abortion in this country are accompanied by certain exceptions, which isn’t a pattern that gives us fewer restrictions, and the exceptions aren’t such that they improve access for the majority of abortion-seeking individuals. According to a Guttmacher Report dated September 1, 2014, 29 states currently have restrictive laws in place governing insurance coverage for abortions. Of these, 24 states specify exceptions for one or more of the following: the life of the mother, severe health risks, cases of rape, and cases of incest. In other words, in half of the states of the union, people in some situations are entitled by law to access to abortion more easily than others based on their victim status. Abortion in these cases is deemed more necessary, less trivial, less morally problematic, and importantly, not considered or classified as “elective.” And when what is eroded is access to “elective” abortion, what is really being eroded is the access necessary to follow through on the decision to have one legally, and if we don’t have that, such personal decisions and “choice” are relatively meaningless. If we really want to protect abortion rights and access, it’s exactly the so-called “elective” procedures that need to be pushed for and insisted upon.

What is now known most popularly as Michigan’s “Rape Insurance Law,” was initially vetoed in 2012 by the state’s Republican Governor, Rick Snyder, who deemed it inappropriate “to tell a woman who becomes pregnant due to rape that she needed to select elective insurance coverage.” Pro-choice opponents of the bill focused in on this particular element of the legislation, giving it the new, more intense moniker. In a way, it’s a really smart move, considering that the strategy points out how the law’s actual name, the “Abortion Insurance Opt-Out Act” is quite the misnomer itself. The law’s official name does evade the reality that opting out means placing a burden on others (anyone and everyone who can become pregnant), and that it does not require insurance companies to offer coverage to those who want it, for any other reason than loss of life. As the nickname suggests, the highlighted and popular criticism of the law has to do with the absence of any exception for pregnancies that occur as a result of rape.

What also seems evidenced by bills like this one and the more recent Supreme Court “Hobby Lobby Ruling,” is that the logic of freedom within capitalism—in this case, specifically religious freedom—is a consumer logic: it is about what one can, can’t, does or does not have to purchase, both for oneself and for others.

This is all to lead up to why, even though I understand the idea behind the recently coined term “rape insurance,”** as a response to laws governing insurance providers’ coverage of abortion, I disagree with the issue-switch it carries out as well as the way it adopts this same ruling logic of late capitalism. Or, to give the benefit of the doubt, perhaps it’s an example of a double-bind that opponents to such laws are facing. Because the logic of this law is based on freedom-as-consumer-practice, the opponents must argue on those terms, but in order to engage the logic, the issue gets lost. So, in this example, the freedom to not pay is placed in opposition to the unfreedom to have to pay, but additionally, in order to heighten the stakes and win the argument, the opponents have to encase it in terms of potential injury—rape. And further, to make this argument, we are forced into reinscribing women as rapeable subjects, rewriting rape into our political reality and even (inadvertently) normalizing it, while doing the opposite with abortion, when that’s actually something we might benefit from making an effort to normalize. There’s something about this dilemma that doesn’t sit right with me.

The fact is, laws like Michigan’s, which restrict abortion coverage require nothing more—and, most importantly, nothing less—than a higher, separate cost for abortion coverage—a separate insurance rider to cover abortion*** no matter what the circumstances are surrounding the pregnancy. It should be enough to call it like it is: in this situation of blatant discrimination and unbalanced access to essential healthcare services for those with bodies susceptible to pregnancy, we shouldn’t have to appeal to other forms of violence and victimization to demonstrate the cruelty and unfairness of a law. We shouldn’t have to use rape to legitimize access to abortion, ever, and we shouldn’t have to use rape to highlight the cruelty of restrictions to it. It’s an unfortunate characteristic of our political climate that we must rely on versions of worst-case-scenarios to illustrate the importance of abortion access, meanwhile foregoing the fact that it is just as important to attain, as well as legal, for anyone who could become pregnant, under any circumstances.

Exceptions are a part of the growing mountain of restrictive legislation that gives footing to anti-abortion activists and legislators. One way to understand them as such is to consider who writes them. No one whose stance unapologetically and firmly insists on safe, legal, accessible, reasonable, and affordable abortion will lace their legislation with exemptions to ease the palate of citizen or politician. But even taking a step back and assuming that exceptions surrounding the circumstances of life, rape, and incest are well-intentioned and rooted in empathy, or are additions pushed for by pro-choice lawmakers who are trying to preserve what access they can while on the defensive, it seems worth it to ask—could these exceptions be actually eroding access in the long run?

As is the case with current abortion restrictions in laws pertaining to healthcare and insurance, when exceptions are embedded in restrictive law, they appear to function as a reprieve to the harshness and absoluteness of the restriction. This illusory quality of exceptions is what seems most injurious and potentially complicating. At best, these are places where the law, rather than affirming women’s bodily autonomy, seems to recognize it as a grey area—as flexible moral territory, a place upon which morals aside from the individual woman’s can be inscribed, and as a negotiable site of purchase. The exception is not apart from the restriction, it is a companion to the restriction. Technically, housed under a restrictive law, the exception is the restriction, and is indistinguishable from it. Really, we might consider how these exceptions can enable the most egregious restrictions to become law, meanwhile reinforcing an uncritical stance toward the prevalence of violence against and domination of women in our culture.

Why do we have to cloak this type of institutional violence against women within another of its forms? Why do we have to make a conversation that is, and should remain about abortion, into a conversation about something else? Why should we be sidelined and mainstreamed into saying that a law that restricts and limits access but does provide certain exceptions (one or more of the big three: life, rape, incest) meets a bare minimum of decency when our standards of decency should certainly be higher and more firmly held in this case?

One answer, perhaps, is that what requires such a move is the climate in which we debate this issue—right now, American politics is one of hyperbole, because every issue has to compete for a public over-saturated with media and information. “Rape insurance” catches the eye more than the outplayed, but still relevant, “abortion rights” (yawn!). The efficacy of this new term and its overarching strategy can definitely be questioned, though. While it garnered media attention, it did not succeed at changing the minds and votes of the anti-abortion lawmakers in Michigan, and the bill passed through both legislative bodies despite powerful testimony and debate from the opposition. Another possibility is that we still have difficulties with proclaiming a stance of abortion without apology. Articulating what these difficulties are, where they come from, and what their basis may be, might be an important step to discovering strategies that aren’t defensive responses. It might seem like a step backwards, but now might be as good a time as any for abortion advocates to reassess our goals.

Which leads me to my final criticism, which applies to both the law and response to the law: Media coverage of the law has focused on this one part, to the unfortunate exclusion of the importance of the other sections of text in this law and their potential reach. For example, Section 11.A gets into some sticky territory when it says that “’Elective abortion’ means the intentional use of an instrument, drug, or other substance or device to terminate a woman’s pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a fetus that has died as a result of natural causes, accidental trauma, or a criminal assault on the pregnant woman.” (Full text here.) This law is specific to insurance coverage, but its definition of “elective abortion” is way too wide open and vague in its assertion that anything that doesn’t “increase the probability of a live birth” can fall under this umbrella. The criteria and precedent for the growing criminalization of pregnant women is all too visible in this piece of legislation for us to be so narrow in our criticisms.


**It’s not that the term is altogether untrue—there is also an unfortunate truth to this statement. It’s just that we shouldn’t act like what a woman is purchasing is access to abortion in the case of rape, because none of us can guarantee that an unwanted pregnancy for which we would require an abortion would be the result of rape—as far as we can tell, far more unwanted pregnancies occur by consensual sex. The best way to ensure access to abortion in the case of rape is to ensure access all the time and under any conditions, because as Jessica’s posts telling women’s own abortion stories highlight (here and here), women need abortions in all sorts of different circumstances, and the only commonality is pregnancy.

***Which, in another twist, is actually not even an available option to those purchasing individual insurance plans not through an employer. This is the one part which betrays the religious freedom argument that is supposedly the intention behind this legislation. The one part that makes clear, in a completion of the circle, that this law is really about abortion access, and it is  on those terms that it needs to be opposed.

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