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By declining to review a Kentucky law mandating that pregnant women undergo vaginal ultrasounds before they can have an abortion, the Supreme Court has allowed this statute to take effect. This procedure is designed to humiliate vulnerable women, and it also constitutes rape by a foreign object. Kentucky should immediately repeal this misogynistic legislation.

I wrote my doctoral dissertation on sexual assault, and I have read hundreds of historic and current laws that address the actions that constitute rape. And I can say with authority that Kentucky’s vaginal-ultrasound requirement definitely falls under the sexual-assault umbrella in many parts of the world, including the United States.

In a bygone era, rape laws were written narrowly to include only forcible penetration of the vagina by the penis; force was myopically defined to require the use of physical violence. Other types of nonconsensual penetration were included in a different, and lesser, class of crime. Plus, in many places around the world and in many states in the US, sexual activity other than “traditional” penis-in-vagina sex was already illegal in the form of “anti-sodomy” laws. In some places, a rape survivor’s father or husband was compensated for the loss of value of his “property.”

But, in the second half of the twentieth century, states began to give more protections to women, who claimed sexual agency of their own. Sexual assault became a major issue in the 1970s, highlighted by the landmark publication of Susan Brownmiller’s revolutionary book “Against Our Will: Men, Women and Rape” in 1975. Rape within marriage is now illegal in all 50 states (though this crime remains under-prosecuted and difficult to prove in court). Men are now seen as “legitimate” victims of rape. Oral and anal rape are criminal acts. Nonconsensual penetration by an object is also illegal.

We have come a long way in naming the lived experiences of survivors of sexual assaults and in criminalizing the variety of ways in which people use sex as a weapon. Indeed, calling them rape is an important step in itself.

But we cannot be complacent in our belief that lawmakers want to criminalize all forms of forced sexual contact. Indeed, the Kentucky statute legalizes rape.

In Kentucky, women seeking abortions must submit to a vaginal ultrasound. It is not a voluntary procedure, and therefore the ultrasound probe inserted into the vagina constitutes forcible penetration without any type of meaningful consent. Acquiescence to the procedure in this context constitutes a constrained choice. In economics, a constrained choice occurs when a rational actor assesses the best choice in a situation in which her options are “constrained” by a limiting factor. In Kentucky, the woman must choose between having the ultrasound and thus being allowed to have the abortion; or, not having the ultrasound and thus being forced to carry the pregnancy (or resorting to an illegal and unsafe abortion). Thus, the “choice” is not really a choice at all; it is not meaningful or affirmative consent. You don’t have to be Captain Olivia Benson to identify the coercion in this situation.

Moreover, the Kentucky abortion law, by the state’s own legal code, constitutes third-degree sexual abuse, defined as: “Subjecting another person to sexual contact without the victim’s consent,” a class-B misdemeanor. It could also be first-degree sexual abuse, a felony, if the person seeking the abortion is a minor, since the doctor in this situation is an authority figure.

The requirement that the doctor describe the fetus to the woman, and that, if possible, the doctor force the woman to hear the fetal heartbeat, is a disgusting version of paternalism. This requirement assumes that women do not understand the meaning of an abortion, and so the law—written largely by men—steps in to explain (or “man-splain”) to the woman what she is really asking for. This implication is insulting, degrading, and infantilizing.

So, I want to urge Kentucky to prove that this law is not a form of legalized misogyny: the state should pass a new law that requires men seeking erectile dysfunction medications to submit to a formal medical measurement and description of their penises.

Or, Kentucky could do the right thing and repeal the mandatory ultrasound statute.

Memorial in Dublin to Savita Halappanavar, who died from a septic miscarriage because doctors refused to perform an abortion. Photo: Buzzfeed.

Pro-choice activists have written widely about the dangers that will befall American women if the Supreme Court overturns Roe v. Wade. Still, these stories sound melodramatic to many anti-abortion activists. Like anti-vaxxers who have never seen polio, most opponents of abortion have never seen women suffer the agony of carrying an unwanted fetus, and believe these horrors to be the province of “third-world” countries. The example of Ireland is difficult to ignore, however, because the country is western, wealthy, and highly developed. Proponents of fetal-heartbeat laws such as the measure in Alabama that a federal judge blocked on October 29th, which made abortion a class A felony punishable by life imprisonment, should learn from Ireland’s experiences so the ranks of our obituary pages don’t swell with American Savitas.

Alabama’s law refuses exceptions in cases of rape and incest, and here, too, legislators can learn from Ireland. In 1992, in the X Case, Irish courts attempted to block a 14-year-old rape victim from leaving the country for an abortion. The girl was suicidal because of the rape and psychological trauma of pregnancy. After initial rulings that the child would be forced to carry the pregnancy to term, protestors held signs that declared “Ireland Defends Men’s Right to Procreate by Rape.” In the end, Ireland’s Supreme Court ruled that X could obtain an abortion because her life was at risk. The original actions of the Irish government in X’s case, like Governor Kay Ivey’s statement that the Alabama law is a “powerful testament to Alabamians’ deeply held belief that every life is…a sacred gift from God” are nakedly hypocritical: they demonstrate a clear preference for the life of the fetus over the mental and physical well-being of women.

Savita and X were paradigm-changing cases in Ireland because both figures were innocent victims who could not be written off as “sluts” who sought abortions in order to avoid taking responsibility for their “sins.” Savita was a married woman; X was a child who was victimized by a predator. Both Savita and X represented the familial nation in crisis: their families were at risk not because of abortion, but because they could not access one.

Ireland has learned from its past and the government has put the nation on a cultural and legal path toward fully valuing women in society. Also on October 29th, the Irish government welcomed the report of the Working Group on Access to Contraception, which endorsed the provision of free contraception, including long-term methods such as intra-uterine devices and implants. Guaranteed access to contraception and sex education will prevent more cases like these two tragedies–and minimize abortion rates. 

Yet Alabama fails on this measure, too. The state does not require sex education in schools, and schools that do offer sex ed endorse abstinence over information. It is unsurprising, then, that the state has some of the highest teen-pregnancy rates in the country. It is misogynistic to refuse to provide information on sexuality and contraception, and then force women to bear the burden of an unwanted pregnancy. 

To be sure, anti-abortion activists will argue that even if abortion is legal only in cases of rape and incest, a flood of women will cry rape–so abortion should just be outlawed altogether. But Ireland also shows that this scenario is pure fantasy: after the X case, Ireland recognized suicide risk as grounds for abortion, and Ireland didn’t see a glut of pregnant women claiming to be suicidal. This theory represents a deranged view of women as manipulative Eves, willing to do anything to erase evidence of their alleged wrongdoing. Regardless, women deserve to have the law dignify our full humanity by allowing us control over our bodies; arguments about rape and incest are adendums to that point.

Spurred by activism in the wake of Savita’s death, in 2018, the people of Ireland voted by an overwhelming majority to legalize abortion. Upon the repeal of the 8th Amendment, Irish people left notes at a memorial to Savita expressing sorrow that the measure was too late to save her. America must learn from Ireland before we have a Memorial to the Women Who Died in Forced Pregnancy.