Coercing Rape Survivors to Be Pregnant for the State—The Texas Way

Gov. Greg Abbott’s disturbing pledge to “eliminate all rapists” fits in line with a tried-and-true political strategy: claim to address a public health issue by pivoting to crime control.

The Women’s March in Austin, Texas, on Jan. 21, 2017. (Steve Rainwater / Flickr)

The recent passage of S.B. 8 in Texas, the law that bans all abortions six weeks after a person’s last menstrual period, threatens access for most people seeking abortions in the state. Shockingly, the law contains no exceptions for rape or incest. These exceptions often mitigate the perception that lawmakers care nothing about a girl or woman’s life. Texas lawmakers didn’t bother with that pretense with S.B. 8.  

When asked about the lack of a rape exception to the law banning most abortions in the state, Republican Governor Greg Abbott claimed that he was planning to eliminate rape in Texas:

“Let’s make something very clear: Rape is a crime, and, Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets.”  

Given that Texas has one of the nation’s highest rape rates, Abbott’s track record thus far falls alarmingly short.

Despite the push to include a rape and incest exception since Governor Abbott’s press statements, the reality is that time and again he has declared there will be no abortion exception based on rape.  

His anti-abortion platform is disturbing for many reasons—among them, at six weeks after their last menstrual period, most women do not know if they are pregnant, whether they were raped or not. And, women who experience unwanted pregnancies resulting from rape are further traumatized by the state’s coercion, which forces them to be pregnant when they would otherwise choose to end the pregnancy.  

That’s not all.  

Abbott’s statement fits in line with a tried-and-true political strategy: claim to address a public health issue by pivoting to crime control. As scholars of public health, reproductive justice, constitutional law and criminal law, we have seen this bait and switch, witnessing time and again how politicians undermine an actual public health response and instead propose the criminal law as the answer. Ramping up criminal law as a purported response to public health concerns harms people denied basic services as well as those caught in the expansive net of the criminal justice system.  

While many people suffer, politicians seem to benefit from the explosive anti-crime rhetoric that appeals to voters. The turn to crime control in the public health context is not new, particularly where poor, marginalized communities endure public health traumas. The case of the purported “crack baby epidemic” serves as a powerful reminder of how crime control as a strategy to address public health crises, in the reproductive care context, can go very wrong.  

In the 1980s, rather than provide meaningful support to low-income families, states demonized self-medicating, pregnant Black women—some who were dependent on illicit drugs. Black women became victims of aggressive political and prosecutorial campaigns to punish women for drug use during pregnancy. Using racist rhetoric, politicians claimed that the war on drugs would stop drug use.  

They claimed harsh prison sentences and separating mothers from their children would end what they portrayed to the world as a crime control issue. This stigmatization helped to propel the war on drugs, initiated by Ronald Regan, now widely understood to have pushed forward laws at the federal and state level that led to increased prosecutions and mass incarceration.    

Using racist rhetoric, politicians claimed that the war on drugs would stop drug use. (Branson ‘Breaking the Taboo’ on drugs/ YouTube)

Lawmakers deployed the same bait and switch in the AIDS crisis. In the 1980s, as HIV was spreading quickly through marginalized groups, including gay men and people who use drugs, politicians responded by stigmatizing communities. Gay men were attacked for their lifestyle. Sex workers were told they were vectors of the virus. Despite the horrors of the AIDS crisis and the grave need for medicines and services, people of color were largely ignored. The Ryan White Care Act passed in 1990—the first comprehensive federal legislation designed to respond to the epidemic—required that states certify that they had a legal mechanism to prosecute HIV-infected individuals who knowingly and intentionally infected others with HIV.  

In conjunction with laws criminalizing sex work, drug use and LGBT people, victims of the virus often found themselves centered in the response—not as worthy of and deserving of support, but as potential perpetrators of an epidemic.    

The emphasis on crime control in moments of health crises plays into personal responsibility tropes. Today, they reflect the welfare state retracting while the emphasis on personal responsibility dominates political rhetoric. The result in the 1980s and ’90s: Women lost custody of their children, high rates of HIV in prison, communities flailed to survive, and death. The focus on criminal law distracted the public from the possibility of other solutions, among them, a range of public health, harm-reduction and housing options.    

To be sure, Greg Abbott may not be invested in actually ramping up a response to rape whether or not it will prevent abortion. But his words fit into a predictable pattern for legislators: Any issue that might be dealt with through compassion and better social services—from immigration to reproductive health care—is met with a call for more police and prosecutions. In doing so, Abbott panders to the state security apparatus and the individuals who believe that policing and prosecutions are the primary way to respond to social and political issues.  

For Abbott, the attention to his draconian law is an opportunity to further a crime control rhetoric that appeals to stoking fear in his base. But, people need basic access to abortion services and this requires investing in and providing reproductive health services in the state of Texas and beyond.  

If anything, history has taught us that public health crises will not be solved in the prosecutor’s office or by claiming to be tough on crime.   

Up next:

About and

Aziza Ahmed is a professor at Boston University School of Law and co-director of the BU Law Program on Reproductive Justice. Before joining BU, Ahmed was a professor of law at University of California, Irvine School of Law. She also taught at Northeastern University School of Law. She is the author of Risk and Resistance: How Feminists Transformed the Law and Science of AIDS and the forthcoming book Feminism’s Medicine: Law, Science, and Social Movements in the AIDS Response, published by Cambridge University Press, and co-editor of the forthcoming handbook, Race, Racism, and the Law, published by Edward Elgar Publishing.
Michele Bratcher Goodwin is a prolific thoughtleader on matters of constitutional law and health policy. In addition to Ms. magazine, Dr. Goodwin's commentary can be read in The Atlantic, The New York Times, the Nation, CNN and The L.A. Times, among others. She holds the Linda D. & Timothy J. O'Neill chair in constitutional law and global health policy at Georgetown Law School and serves as the co-faculty director of the O'Neill Institute for National and Global Health Law. She is the executive producer of Ms. Studios.