Twenty-two states have abortion bans that would become law almost immediately if a leaked Supreme Court decision on abortion rights goes into effect. Many of these state bans contain no exceptions for rape or incest survivors. Not so long ago, such exceptions were regularly included in proposed abortion bans, in part because they’re popular: For decades, about 75 percent of Americans have consistently told pollsters that abortion should be legal in cases of rape and incest. But many of the measures now set to take effect do away with such exceptions.
President Ronald Reagan detested abortion but endorsed exceptions for rape in the 1980s; George H. W. Bush, George W. Bush, and Donald Trump all also indicated their support for the measures. The National Right to Life Committee supported legislation that included exceptions in the 1990s. Even the Hyde Amendment, the federal law that prohibits federal funds from being used to pay for abortions, has long contained these exceptions.
In the past few years, though, the anti-abortion movement has moved in a different direction. In 2019, Alabama legislators passed an abortion ban that lacked rape and incest exceptions. Nine other states—Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Tennessee, and Texas—have passed similar laws. Courts blocked all the laws but Texas’s; if Roe is overturned, it will be a felony for any Texas doctor to perform an abortion for a woman who was raped or impregnated by a family member. In March, Arizona Governor Doug Ducey signed an early-abortion ban without rape or incest exemptions.
[Michele Goodwin and Mary Ziegler: Whatever happened to the rape and incest exceptions?]
It’s rare that a majority of Americans agree on anything, and parties cut against popular opinion at their own risk. Even some Republicans with anti-abortion views might feel squeamish about laws that take such a rigid stance when it comes to cases of rape and incest. Laws like these “probably [have] a cost,” former Republican Representative Tom Davis of Virginia told me. “On the margins, that probably is not the politically wisest course.” But Republicans have plowed ahead anyway, confident that they’re on the right side of this issue not only morally, but politically. Maybe a lack of exceptions for rape is not the poison pill it once was. “We’ve seen state legislatures adopt restriction after restriction and ban after ban, and these legislators remain in power,” Elizabeth Nash, a policy analyst at the Guttmacher Institute, which supports abortion rights, told me. “It doesn’t feel like there are any consequences for them.”
Some abortion-rights proponents argue that to focus on rape and incest exceptions in abortion bans is to miss the point. Obtaining an abortion under a rape or incest exception is difficult. Many states require rape survivors to file a police report to qualify. “These exceptions don’t do the job that people think they’re going to do,” Nash said. But the trend toward blanket abortion bans signals a clear shift in the anti-abortion movement. Banning all abortions, even in cases of rape and incest, is ideologically consistent, the bans’ proponents argue: If abortion is murder, why would murder be acceptable in any instance? “We don’t issue birth certificates in the United States with a ratings system based on how someone was conceived,” Kristi Hamrick, a spokesperson for the anti-abortion group Students for Life, told me. “Clearly crimes must be fully prosecuted, and women [must be] helped. But we mourn as well for the preborn, who also suffer.”
[Caitlin Flanagan: The dishonesty of the abortion debate]
Forcing rape and incest survivors to carry pregnancies to term is unpopular, but it’s no longer an unusual proposal. One taboo, though, has endured: The anti-abortion-rights movement still seeks to portray itself as advocating for pregnant women, rather than seeking to punish them, and leaps into damage-control mode if its allies suggest otherwise. During his primary campaign in 2016, for example, Donald Trump suggested in a town-hall interview with MSNBC’s Chris Matthews that women should face “some sort of punishment” for obtaining an abortion. Republicans and leaders of the anti-abortion movement pushed back immediately. “No pro-lifer would ever want to punish a woman who has chosen abortion,” said Jeanne Mancini, the president of the March for Life Education and Defense Fund. “We invite a woman who has gone down this route to consider paths to healing, not punishment.” Trump, realizing that he had entered politically iffy territory, retracted his statement. So far, all of the abortion bans that would take effect under the leaked SCOTUS decision seek to punish providers, rather than people who seek out the procedure. But this political third rail may be losing its charge too. Several women have recently been arrested and jailed in cases involving self-induced abortions. “If abortion is murder, then women are hiring the hitmen,” Carol Sanger, a professor at Columbia Law School who studies reproductive rights, told me. “It’s not logically impossible to get to that position.”
