Conservatives fight to end abortion exceptions

BOISE, IDAHO » Angela Housley was halfway through her pregnancy when she learned the fetus was developing without parts of its brain and skull and would likely die within hours or days of birth, if it survived that long. The news came during her 20-week ultrasound.

“The technician got a really horrible look on her face,” Housley said. “And we got the really sad news that our baby was anencephalic.”

It was 1992 and abortion was legal in Idaho, though she had to dodge anti-abortion protesters outside the Boise hospital after the procedure. If the same scenario were to happen later this year, she would likely be forced to carry to term.

That’s because Idaho is one of at least 22 states with laws banning abortion at the 15th week or earlier, many of them lacking exceptions for fetal viability, rape or incest or even the health of the woman. Several of those bans would take effect if the U.S.

Supreme Court issues a ruling overturning the 1973 Roe vs. Wade decision, as a leaked draft of the opinion suggests.

Such exceptions were once regularly included in even the most conservative anti-abortion proposals. But as the battle over abortion access heats up, experts on both sides of the issue say the exceptions were a temporary stepping stone intended to make anti-abortion laws more palatable.

Many of the current abortion bans are designed as “trigger laws,” automatically going into effect if the high court overturns the nationwide right to abortion. That ruling is expected to be released by late June or early July.

Alabama and Oklahoma have enacted bans with no exceptions. Alabama’s 2019 law is blocked in federal court but could be reinstated based on the Supreme Court’s ruling. The Republican sponsors envisioned the legislation as a vehicle to challenge Roe in court, and they said they could add rape and incest exceptions later if Roe is overturned.

“They’re basically using people — in this particular situation, women — as collateral damage,” said Democratic Rep. Chris England, the chairman of the Alabama Democratic Party. “In the debate, we tried to talk reasonably to them and say, ‘ What happens if you win? This is the law, You’re not going to have the opportunity to change it before people get hurt.’ ”

Several other states, including Arizona, Florida, Kentucky, Louisiana, Missouri, South Dakota, Tennessee and Texas, also have bans or trigger laws in place that lack exceptions for rape or incest.

Idaho and Utah have exceptions for rape or incest, but they require the pregnant woman to file a police report first and to prove to the abortion provider the report was made. Only about one-third of sexual assaults are reported to police, according to the Rape, Abuse & Incest National Network.

Texas and Idaho allow exceptions for “medical emergencies” but leave that interpretation up to physicians, making some critics fear doctors will wait to intervene until a woman is near death.

Public support for total abortion bans appears to be low, based on a Pew Research Center survey released Friday and conducted in March.

The survey showed just 10% of U.S. adults say abortion should be illegal in all cases. When probed further, just 8% think abortion should be illegal with no exceptions. An additional 27% percent say abortion should be illegal in most cases.

Arkansas has two neartotal abortion bans — a trigger law from 2019 and one passed last year that is blocked in federal court. Neither have exceptions for rape or incest, although they do allow abortions to save the woman’s life.

The state also never repealed its pre-1973 total abortion ban with no restrictions.

Republicans in the state were split on the issue last year, with Gov. Asa Hutchinson and Sen. Missy Irvin expressing reservations about the lack of protections for sexual assault survivors.

“Do you know how many young girls are on suicide watch because they were raped, because they were a victim of incest?” asked Irvin, who ultimately voted for last year’s bill.

The sponsor of last year’s ban, Republican Sen. Jason Rapert, defended the lack of exemptions, saying it still allowed the use of emergency contraception.

Elizabeth Nash, a state policy analyst for the Guttmacher Institute, which supports abortion rights, said that of 86 pending proposals for abortion restrictions this year, only a few — including one each in Idaho, New Jersey and West Virginia — include rape and incest exceptions.

The exceptions were always “incredibly limited,” she said. “You might think these exceptions are helpful. But in fact they’re so restricted, they’re very hard to use.”

Troy Newman, president of the national antiabortion group Operation Rescue, said exceptions to abortion restrictions for rape and incest and to protect a pregnant woman’s life in the past have been “thrown in there to appease some centrists.”

Newman said his group, based in Wichita, Kan., opposes rape and incest exceptions. The rationale: “Don’t punish the baby for the crime of the father.”

The Ohio Legislature is weighing a trigger law that lacks sexual assault exceptions. During a hearing last month, the bill’s GOP sponsor, Rep. Jean Schmidt, caused controversy when she called pregnancy resulting from rape “an opportunity” for the rape victim to “make a determination about what she’s going to do to help that life be a productive human being.”

She was responding to a question from Democratic Rep. Rich Brown, who asked if a 13-year-old impregnated during a rape would be forced to carry to term.

Rape “emotionally scars the individual,” Schmidt conceded, “but if a baby is created, it is a human life.”

In South Carolina, supporters of a 2021 abortion ban added exceptions for rape and incest because it was the only way to get the law passed. During debate, Republican Sen. Richard Cash argued against the exceptions.

“Punish the rapist ... but it doesn’t belong on the baby,” he said.

Democratic Sen. Mia Mcleod responded that it was obvious Cash had never been raped.

“Well, I have. You’re looking at a sexual assault survivor,” she said, adding that requiring rape victims to carry babies to term could lead them to desperate measures, including dangerous illegal abortions or suicide.”

New Hampshire has banned abortion after 24 weeks of gestation except for when the woman’s health is threatened, although the state soon will add an exception for fatal fetal anomalies. The Republican-led legislature has rejected attempts to add rape and incest exceptions.

Mallory Schwarz, executive director of Pro-choice Missouri, expressed concern that provisions in laws such as the one in Texas that allow abortions past six weeks in medical emergencies, will require doctors to wait until a patient appears to be dying to perform an abortion.

In Idaho, Housley repeatedly has testified against the state’s abortion bans in the Legislature but said the lawmakers were uninterested in hearing about her experience.

“My baby had a heartbeat, but that’s not the only thing a baby needs,” said Housley. Anti-abortion politicians “are not at all interested in the reality of this issue. They’ve hijacked this discussion, and that’s why we are where we are.”