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Rape exceptions: ineffective, damaging, and discriminatory

Between Rep. Todd Akin's bizarre ideas on biology and Richard Mourdock's thoughts on God's will, Gov.

Between Rep. Todd Akin's bizarre ideas on biology and Richard Mourdock's thoughts on God's will, Gov. Mitt Romney's support for abortion rights in the case of rape or incest might seem like the height of moderate politics.

But experts say existing rape exceptions in Medicaid funding laws are ineffective, discriminatory, and physically and emotionally damaging to rape victims; furthermore, these problems would persist and worsen if abortion were to be outlawed and replaced with a federal exemption in the case of rape.

msnbc host Rachel Maddow pointed to the fundamental flaw in rape exceptions during her show Wednesday night. “Who adjudicates who has been raped?" she asked. "Do you take every woman’s word for it? What if the man who is the alleged rapist says, ‘it wasn’t rape’—do you take his word for it? Who makes that final ruling?  Is it a cop?  Is it a judge?  Is it a jury?  Is it Mitt Romney?”

Medicaid is only federally required to fund abortions in cases of incest or risk to the mother's life. States have broad latitude to decide whether state funds will pay for abortions, in what cases, and how women must qualify for the funding. 27 states’ laws limit Medicaid-covered abortion to cases of rape, incest, or life-threatening health risk, and at least 15 states require women to report those rapes to the authorities to qualify for the funding. Reproductive rights lawyers say these existing laws would be the foundation of a rape exception in a federal abortion ban.

The Center for Reproductive Rights’ Litigation Director Julie Rikelman told that a rape exception, if put into effect, would “eviscerate” victim's rights. Moreover  forcing women seeking abortions to jump through additional legal and bureaucratic loophole could traumatize them and create new health risks. “Even for those women who were still in theory able to have their constitutional right to abortion, it would be very difficult for them to have it in practice,” said Rikelman. “It would traumatize them, and there’s no doubt they’d be suffering emotional harm.”

In 2006, the most recent year for which Medicaid expenditure data available, only 54 women in the 27 states with additional restrictions on Medicaid abortion funding were approved for a Medicaid-funded abortions.  Approximately 5 percent of rape victims, an estimated 32,000 women a year are impregnated from sexual assault.

“Reporting requirements are a huge barrier,” according to Gretchen Borchelt, the senior counsel director of state reproductive health policy at the National Women’s Law Center. “A very small number [of patients seeking an abortion after a rape] actually get Medicaid funding.”

Roughly 54 percent of victims don’t report their rapes, fearing emotional trauma, perpetrator retribution, and shame, noted Rikelman.

Legal and bureaucratic hurdles—such as requiring women to certify that they have reported their rapes to the police—also creates financial burdens and health risks for the victim, Borchelt said.

“Any kind of delay for a woman seeking abortion creates financial barriers, as abortions become more expensive the farther along in the pregnancy the woman gets,” Borchelt said. “The farther along she gets, too, the health risks increase.”

Under a federal rape exception, women’s location would limit their ability to access abortions. “For those of us in New York, we could probably get one. For a woman who lives in North Dakota, or Arizona, they’d probably have to have five different police officers certify that this had happened,” Rikelman said. She added that women with resources would likely be able to take advantage of such an exception, but that it would discriminate against poor women—like the ones who qualify for Medicaid.

“What's egregious here is that they believe that government should make  this decision,” Nancy Keenan, the president of NARAL Pro-Choice America said on The Rachel Maddow Show Wednesday night. “They don’t trust [women] to make sure that the woman has said, ‘I have been raped. '”

So what would a federal abortion ban look like? “That’s the million-dollar question and I don’t think there’s an answer,” she said.

Medicaid actually provides one of the most generous rape exemption rules, and some state legislatures are contemplating additional restrictions. A Pennsylvania bill introduced into the state senate last week would refuse additional aid to women who became pregnant while receiving public funds, unless they've reported a rape to the police.