The Shifting Dynamics Around Rape and Incest Exceptions to Abortion Bans
As divisive as the issue of abortion is in American politics, one point of broad, longstanding agreement has been exceptions for cases of rape and incest in laws restricting abortion. Arguments for such exceptions used to be commonplace even in pro-life policies and the rhetoric of pro-life politicians: Republican presidents from Ronald Reagan to Donald Trump expressed their support. The Hyde Amendment, which bars federal funding for abortion, allows it for abortions in cases of rape, incest, and threats to the life of the mother.
But the political dynamics surrounding rape and incest exceptions have been shifting for a while, a trend made more obvious since the Supreme Court ruling that reversed Roe v. Wade turned a philosophical matter into a practical one. Many newer state-level abortion bans eschew these exceptions. Louisiana passed a law in June that did not include rape or incest exceptions. Pro-life Democratic Gov. John Bel Edwards expressed disappointment that there were no exceptions but signed his state’s bill anyway. Arkansas’ Republican Gov. Asa Hutchinson has shared similar sentiments about a law he signed three years ago that went into effect after the Dobbs ruling. Meanwhile, Idaho Lt. Gov. Janice McGeachin has called for the elimination of these exceptions, and politicians like South Dakota Gov. Kristi Noem have stood behind their state’s lack of such exceptions.
Students for Life, a pro-life advocacy group with chapters on more than 1,200 campuses nationwide, has been in the vanguard of this change. “Your humanity doesn’t change with the circumstances of your conception,” says Kristan Hawkins, the group’s president. “You are valuable regardless of how you came into existence, or what your father did the night of your conception.” Pro-life activists conceived in rape have long made a similar argument. As Rebecca Kiessling put it in a conversation with then-presidential hopeful Rick Perry, “When you make that rape exception, it’s like you’re saying to me that I deserved the death penalty for the crimes of my father.”
Soon, only seven states will have laws that ban or restrict abortions but with explicit exceptions for pregnancies resulting from rape: Georgia, Idaho, Mississippi, North Dakota, South Carolina, Utah, and Wyoming. If Iowa’s state courts allow for its six-week abortion ban to take effect, it will join this group. All but one of these–Mississippi–also have an exception for pregnancies resulting from incest. Six other states and the District of Columbia allow unrestricted abortion; 10 ban abortion entirely and limit exceptions to some combination of life and health endangerment and fetal anomalies; and the rest of the states begin restricting abortion at some set period of gestation, and do not have a rape or incest exception afterward. (One of Oklahoma’s five contradictory abortion restrictions includes rape and incest exceptions, but none of the others do; even the attorney general’s office was unclear which would take precedence, but, presumably, an abortion legal under the law with exceptions could be prosecuted under one of the laws without.)
Advocates for survivors of sexual abuse point out that, even when such exceptions are present, they are rarely used and, in their view, basically useless. “On a practical level, the exceptions don’t do anything,” the director of an abuse survivor support nonprofit told the Los Angeles Times. The National Alliance to End Sexual Violence, along with dozens of other national and state anti-sexual abuse organizations, supports broad access to abortion in case of rape, but, according to a 2005 Guttmacher Institute study, only 1 percent of abortions are sought because of rape and less than one-half of 1 percent because of incest. Despite being 17 years old, this study is the most recent nationwide data available on the topic. For more recent data, Florida reported that in 2021 only 0.15 percent of abortions occurred in cases of rape and only 0.01 percent in cases of incest.
Four states require that the assault or incest be reported to law enforcement before an abortion can be performed. According to the Rape, Abuse, and Incest National Network (RAINN), less than a third of sexual assaults are reported. Furthermore, Idaho’s ban explicitly requires presenting the abortion provider with a copy of the police report, which is difficult to get. Police reports are not typically available during an ongoing investigation, which can take months to conclude.
Chris Davis, director of marketing and communications at Faces of Hope Victim Center, an interpersonal violence crisis and counseling center in Boise, Idaho, told The Dispatch that her team is “just kind of biding our time, waiting to see what the fallout will be for the people that we serve.” (Unless delayed by pending litigation, Idaho’s six-week ban will go into effect on August 18 and its total ban will follow a week later; both have the same exceptions.) Faces of Hope has an attorney on staff and partners with the University of Idaho College of Law’s Family Justice Clinic who plan to counsel survivors regarding their options once the law goes into effect. In the meantime, according to Davis, local law enforcement is working with the nonprofit and medical sectors to find a way to help victims meet the exception’s requirements.
In states with a gestational age cap on such abortions, delays could ultimately result in women being unable to get an abortion at all. Adding to the difficulty are parental consent requirements for minors seeking abortions, not always waived in cases of incest and abuse. In other words, a victim of incest could be forced to acquire the consent of her abuser (or, at best, get a judicial bypass from a court) in order to receive an abortion. Furthermore, minors who report sexual assault could be taken from their families and placed into the custody of the state, Michele Bratcher Goodwin, law professor at UC-Irvine, told The Dispatch. She added that their situation could be made even more complex if they are placed with a pro-life foster family or through a religious foster agency.
Several states have statutes that do not clearly define the process for verifying rape or incest before performing an abortion, leading abortion providers to hesitate for fear of prosecution. Regarding these exceptions, and exceptions like Idaho’s that seem essentially impotent, “It is possible to sue because a law is vague or it is overly broad,” said Goodwin, predicting that this critique “could be a legal strategy that’s taken up by [pro-abortion rights groups]” in coming court battles. Courts striking down state laws would force legislatures to rewrite them with clarified exceptions–or, depending on the political environment, with none at all.
Providers also claim that performing abortions only in cases of rape and incest would not create enough revenue to keep them in business. Mississippi’s only abortion clinic closed as soon as the state’s ban went into effect in early July. Now, rape crisis centers like the Gulf Coast Center for Nonviolence are dealing with a “patchwork of timelines” in other states’ laws, according to Rene’ Davis, the center’s communications director. “We’re going to try to assist [survivors] with what their decision is, in any way we legally can,” she told The Dispatch. For now, that means providing information and directing women who choose abortion out of state, based on their stage of pregnancy. But Davis worries that may not continue to be legal, if Mississippi passes a law that criminalizes assisting a woman seeking an abortion out of state. Regardless, Davis repeatedly stressed the center’s commitment to both supporting survivors and acting “within the bounds of the law.”
Goodwin told The Dispatch that, with such exceptions, “you have the right [to an abortion] … but are there doctors available?” Restrictive laws will make it difficult, even dangerous, for abortion providers to practice, and some will leave their states. This, Goodwin recognized, is “seen as a victory in the anti-abortion movement. … If there aren’t people to provide those procedures, then the issue has been won.”
