How Focusing on Rape-or-Incest Exceptions Distorts the Abortion Debate

The New York Times misleadingly claims that cases like the abortion sought by a 10-year-old Ohio rape victim "are not as rare as people think."

The horrifying case of a 10-year-old Ohio rape victim who crossed the border to Indiana for an abortion understandably attracted national attention. According to her doctor, the girl was six weeks and three days into her pregnancy. That put her beyond the window allowed by an Ohio law that prohibits abortion after fetal cardiac activity can be detected, which typically happens around six weeks. Ohio's ban makes an exception for a "medical emergency" but not for pregnancies resulting from rape or incest.

Such cases pose moral challenges to both opponents and supporters of abortion rights. Pro-life advocates who favor laws like Ohio's must confront the disturbing implications of forcing women and girls to bear their attackers' children. Pro-choice advocates, meanwhile, must contend with the counterargument that abortion in such circumstances compounds the original crime by victimizing another innocent person.

It was not hard to predict which side The New York Times would take in this debate. But a Times story published on Saturday, headlined "What New Abortion Bans Mean for the Youngest Patients," misleadingly conflates the issue of rape-or-incest exceptions, which rarely apply, with the much broader issue of abortions obtained for other reasons.

The Times story begins with the Ohio case: "She was just 10 years old, so young that many people were horrified when they heard it, and others refused to believe it. But the ordeal of the child rape victim in Ohio who had to cross state lines for an abortion, and the ugly political fight that followed, have highlighted two uncomfortable facts."

One of those "facts" seems incontrovertible: "New abortion bans are likely to have a pronounced impact on the youngest pregnant girls." But the other "fact" is much more dubious: "Such pregnancies are not as rare as people think."

Given the context, readers will tend to assume that Times reporters Dana Goldstein and Ava Sasani are talking about cases similar to the one they have just described. That impression is reinforced in the second paragraph, which focuses on rape-or-incest exceptions.

"New bans in nearly a dozen states do not make exceptions for rape or incest, leaving young adolescents—already among the most restricted in their abortion options—with less access to the procedure," Goldstein and Sasani write. "Even in states with exemptions for rape and incest, requirements involving police reports and parental consent can be prohibitive for children and teenagers."

The third paragraph also focuses on cases like the one in Ohio. "The situation out of Ohio is in no way unique," Indiana obstetrician-gynecologist Katie McHugh, a board member of Physicians for Reproductive Health, tells the Times. "This is a situation that every abortion provider has seen before."

But the rest of the story ranges far beyond that issue. Based on 2017 data collected by the pro-choice Guttmacher Institute, Goldstein and Sasani note, "there were 4,460 pregnancies among girls under 15, with about 44 percent ending in abortion." That amounts to 1,962 abortions in this age group, or about 0.2 percent of the total in 2017.

As The Washington Post notes, "abortions performed on patients younger than 15 in the country are extremely rare." And as Goldstein and Sasani concede, "It is unclear how often these pregnancies are the result of incest or rape." While "children in this age group are generally below the age of sexual consent," they note, "sexual contact between two similar-aged young teenagers is not always considered a crime," and "some states allow children to marry with parental permission."

After initially citing a 10-year-old rape victim, Goldstein and Sasani are now talking about abortions obtained by "young teenagers," an unknown fraction of which may have involved pregnancies resulting from rape or incest. In the 27th paragraph, they finally present data that seem more relevant: In Texas, where a ban similar to Ohio's took effect last September, "state records show over 200 children aged 15 and younger received abortions in 2021." Goldstein and Sasani add that "one of those patients was 11 or younger, and 30 were 12 or 13 years old."

In the second-most populous state, in other words, one girl who was about the age of the Ohio rape victim had an abortion in 2021, and the Times does not specify the circumstances of that pregnancy. Based on the Texas data, it looks like such cases are "as rare as people think," contrary to what Goldstein and Sasani imply in the first paragraph.

None of this makes the Ohio case less appalling. Nor does it detract from the undeniable burdens that laws like Ohio's impose on teenagers, or women of any age, who are forced either to carry an unwanted pregnancy or to seek an abortion elsewhere, regardless of how they became pregnant. But the specific issue raised by the Ohio case is the lack of an exception for rape or incest, which is how Goldstein and Sasani initially frame the story before expanding their focus. While that is a genuinely troubling issue, exaggerating its magnitude does a disservice to anyone trying to grapple with it honestly.

According to a 2005 Guttmacher Institute analysis of data from two surveys, 1 percent of women who had obtained abortions "indicated that they had been victims of rape, and less than half a percent said they became pregnant as a result of incest." The two surveys involved a total of about 12,000 women, a fifth of whom were 19 or younger. Their seemingly relevant findings are notably missing from the Times story. While the article quotes a pro-life Oklahoma legislator who describes the Ohio case as "an incredibly rare instance," it does not cite readily available data that back up her point.

Despite the rarity of such abortions, USA Today noted in 2019, "the battle over exceptions for [rape or incest] has garnered outsized attention in the national abortion debate." The story quoted abortion-law historian Mary Ziegler, who said "exceptions for rape and incest are much more 'symbolic than they are relevant,' given that they don't apply to the majority of women having abortions."

Ziegler elaborated on the symbolic significance of the debate about such exceptions. While there once was a "consensus" that "if you didn't include exceptions for rape and incest, politicians wouldn't go for it, voters wouldn't like it and the Supreme Court wouldn't tolerate it," she said, "what you see now is pro-life groups saying it's no longer a political necessity." Pro-choice groups, meanwhile, "see rape and incest exceptions as the canary in the coal mine when it comes to extremism. They argue [that] if you're willing to abandon these exceptions, then there's no saying when you're going to stop."

Now that the Supreme Court has decided that abortion bans are constitutionally tolerable, we have a clearer idea of how far pro-life politicians are willing to go. Some still see exceptions for rape or incest as either politically or morally obligatory. Utah's ban, for example, includes such exceptions. But the Times counts "nearly a dozen" states with bans that apply even in those cases.

According to Gallup, more than three-quarters of Americans think abortion should be legal in the first trimester when a pregnancy results from rape or incest. That overwhelming majority includes many Americans who describe themselves as pro-life.

In 2019, when South Carolina approved a six-week ban that did not make exceptions for rape or incest, Nancy Mace, then a Republican state legislator and now a U.S. representative, vigorously objected, citing her own experience as a 16-year-old rape victim. "I'm pro-life," she said. "I would choose life, and I would hope if it was my daughter she would choose life. But I also don't believe it's the government's right in cases of rape or incest to tell a woman what she should do with her body. It's abhorrent."

President Joe Biden, weighing in on the Ohio case, unsurprisingly took a similar view. "She was forced to have to travel out of the state to Indiana to seek to terminate the pregnancy and maybe save her life," Biden said. "Ten years old—10 years old!—raped, six weeks pregnant, already traumatized, was forced to travel to another state."

The contrary argument, that a rapist's crime does not justify sacrificing an innocent life, is logically consistent if you view abortion as tantamount to murder. But it is a tough sell, even among many people who are inclined to share that perspective.

James Bopp, general counsel at National Right to Life, addressed the Ohio case in an interview with Politico last week. If the 10-year-old girl had not obtained an abortion out of state, Bopp said, "she would have had the baby, and as many women who have had babies as a result of rape, we would hope that she would understand the reason and ultimately the benefit of having the child."

Bopp added that the model legislation he wrote for his organization "does propose exceptions for rape and incest…because that is a pro-life position, but it's not our ideal position. We don't think, as heart-wrenching as those circumstances are, we don't think we should devalue the life of the baby because of the sins of the father." Kristan Hawkins, president of Students for Life of America, likewise argues that "the violence of rape will not be cured by the violence of abortion."

Wherever you come down on that issue, we should be clear-eyed about how common such situations are and avoid conflating them with the much more frequent cases where girls and women seek abortions for other reasons. In the broader abortion debate, focusing on rape victims, let alone 10-year-old rape victims, is just as misleading as focusing on late-term abortions, which likewise account for a tiny share of the total.