In the fight against abortion, conservatives are pushing to end all exceptions

BOISE, Idaho – Angela Housley was in the middle of her pregnancy when she learned that 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 tech had 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, although after the procedure she had to dodge anti-abortion activists outside the Boise hospital. If the same scenario happened later that year, she would likely be forced to carry until delivery.

That’s because Idaho is one of at least 22 states with laws banning abortions at 15 weeks or earlier, many of which have no exceptions for fetal viability, rape or incest, or even the woman’s health. Several of these prohibitions would become effective if the U.S. Supreme Court issued a ruling upholding the Roe v. Wade’s 1973 repeal, a leaked draft of the report suggests.


Such exceptions were once a regular feature of even the most conservative anti-abortion proposals. But as the fight for access to abortion heats up, experts on both sides of the issue say the exemptions were a temporary springboard to make anti-abortion laws more palatable.

Many of the current abortion bans are designed as “trigger laws” and take effect automatically when the Supreme Court overturns the nation’s abortion law. This verdict is expected to be published in late June or early July.

Alabama and Oklahoma have invariably enacted bans. 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 way to challenge Roe in court and said they could later add exceptions for rape and incest if Roe is overthrown.


“They’re basically using people — women in this particular situation — as collateral damage,” said Democratic Rep. Chris England, leader of the Alabama Democratic Party. “In the debate, we tried to reason with them and say, ‘What happens if you win? That’s the law, you won’t have a chance 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 that do not include exceptions for rape or incest, according to reports from the Guttmacher Institute and Associated Press.

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


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

Public support for outright abortion bans appears to be low, according to a Pew Research Center poll released Friday and conducted in March. The poll found that only 10% of US adults say abortion should be illegal in all cases. Upon further investigation, only 8% believe that abortion should be illegal at all times. Another 27% say abortion should be illegal in most cases.

Arkansas has two near-complete abortion bans — a trigger law passed in 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 lifted its full pre-1973 ban on abortion without restrictions.

Republicans in the state were divided on the issue last year, with Governor Asa Hutchinson and Senator Missy Irvin raising concerns about the lack of protection for sexual assault survivors.


“Do you know how many young girls are under surveillance for being raped, for being victims of incest?” asked Irvin, who ultimately voted for last year’s bill.

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

Elizabeth Nash, a state abortion rights policy analyst who supports the Guttmacher Institute, said of 86 pending abortion restriction proposals this year — including one each in Idaho, New Jersey and West Virginia — include exemptions on rape and incest.

The exceptions are always “incredibly limited,” she said. “You might think these exceptions are helpful. But actually they are so limited that they are very difficult to use.”

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


Newman said his Wichita, Kansas-based group opposes exceptions to rape and incest. Her reasoning: “Do not punish the baby for the father’s crime.”

The Ohio Legislature is considering a trigger law that does not include exceptions for sexual assault. 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 decision about what she’s going to do.” , to help this life productive human being.”

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

Rape “hurts the individual emotionally,” Schmidt acknowledged, “but when a baby is conceived, it’s a human life.”

Democrat MP Tavia Galonski countered that pregnancy itself is often traumatic and dangerous, adding: “Forcing a rape survivor to come to term and have a child is absolutely abhorrent and only adds to the trauma.” , which she has already suffered .”


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

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

Democratic Sen. Mia McLeod responded that Cash had apparently never been raped.

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

“All I ask is that the men on this board give the women and girls of this state a choice,” McLeod said.

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


Republican Rep. Beth Folsom, who in January said she was a rape survivor, argued that the exceptions weren’t necessary because rape victims carefully track their menstrual cycles and don’t wait 24 weeks to request an abortion. An incest exception isn’t necessary, she added, because “this attacker will make sure the young girl or young woman has an abortion before anyone finds out.”

Mallory Schwarz, executive director of Pro-Choice Missouri, expressed concern that legislation like that in Texas, which allows abortions after six weeks in medical emergencies, will require physicians to wait until a patient is pregnant before performing an abortion dying lies.

“Any type of article left for interpretation will generally have a broad chilling effect on providers who don’t want to jeopardize their careers and livelihoods and their practice and ability to care for other patients,” Schwarz said.


Many ban abortion at six weeks, when vaginal ultrasound can first detect electrical activity in embryonic cells that can later become the heart. Proponents call them “heartbeat laws” and argue that heart activity is a reliable predictor of life.

In Idaho, Housley has repeatedly testified against state abortion bans in the Legislature, but said lawmakers are not interested in hearing about her experiences.

“My baby had a heart attack, but that’s not the only thing a baby needs,” Housley said. Anti-abortion politicians “don’t care at all about the reality of this issue. They have hijacked this discussion and that is why we are where we are.”


Hanna reported from Topeka, Kansas. Associated Press writer Hannah Fingerhut and AP Statehouse reporters from the US contributed.

Copyright 2022 The Associated Press. All rights reserved. This material may not be published, broadcast, transcribed or redistributed without permission. In the fight against abortion, conservatives are pushing to end all exceptions

Justin Scacco

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