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Many states are looking toward abortion bans with no exception for rape, incest

PolitiFact | Historically, Republican elected officials have backed exceptions, in tune with public opinion.
Anit-abortion activists hold signs outside the U.S. Supreme Court after the overturning of Roe.
Anit-abortion activists hold signs outside the U.S. Supreme Court after the overturning of Roe. [ STEFANI REYNOLDS/AFP | Getty Images North America ]
Published Jul. 19|Updated Jul. 19

Most of the states that have acted quickly to curb abortions after the reversal of Roe v. Wade have decided to do away with one longstanding element of abortion policymaking: allowing abortions in the case of rape or incest.

The matter attracted national attention in July after it was reported that a 10-year-old Ohio girl had become pregnant and, on the suggestion of her doctor, was taken to neighboring Indiana to have an abortion. Indiana’s laws on abortion currently allow broader access than those in Ohio, though legislators are expected to tighten them soon.

President Joe Biden elevated the case during a July 8 speech on abortion rights. He and other abortion rights supporters called it a dark portent of a future in which rape survivors are forced to carry a pregnancy to term. Meanwhile, Indiana’s attorney general pledged to investigate the Indiana doctor’s actions in the case.

Fifteen of the 22 states with new or forthcoming limits on abortion after Roe do not permit exceptions for rape and incest. This suggests that anti-abortion advocates are no longer willing to go along with such exceptions, despite their widespread adoption over decades. This position puts anti-abortion advocates and politicians on a collision course with public opinion, which strongly opposes forcing rape and incest survivors to carry pregnancies to term.

Related: Why polling on abortion hides the true complexity of what Americans think

Here’s a closer look at the history of the debate, and how it has changed since Roe v. Wade was overturned.

How common are rape or incest exceptions in the new abortion bans?

We looked at 22 states where strict new abortion laws are, or are about to be, enforced.

Of those 22 states, 15 offer no exceptions for rape, incest or both. Those states are Alabama, Arizona, Arkansas, Florida, Kentucky, Louisiana, Michigan, Missouri, Ohio, Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin.

Related: Florida's 15-week abortion ban took effect today. Here's what to know.

Seven explicitly allow abortions in cases of rape: Georgia, Idaho, Mississippi, North Dakota, South Carolina, Utah and Wyoming. All but Mississippi also allow abortions in cases of incest.

The list of states with abortion restrictions could increase in the coming weeks.

For instance, legislative leaders in Indiana, where Republicans control both the Legislature and the governorship, are expected to pass an abortion ban during a special session this summer.

Polling shows Americans support access to an abortion after rape or incest.

A 2018 Gallup poll found that 77% of Americans support legal abortion after rape or incest during the first trimester of pregnancy. Support was lower in the third trimester, though still a majority at 52%.

A poll taken in April by ABC News and The Washington Post found 79% of Americans approve of exceptions for rape or incest.

Exceptions in abortion bans are no longer a concession

After the Supreme Court ruled on Roe in 1973, guaranteeing a federal right to the procedure, elected officials who otherwise opposed abortion rights tended to accept exceptions for rape and incest in legislation. They saw it as a practical concession to public opinion, said Mary Ziegler, a law professor at the University of California-Davis.

But anti-abortion activists were never convinced of the need for exceptions, Ziegler said. When your deeply held moral belief is that a fetus is a person, “you can’t be for a rape exception,” Ziegler said. Some also worried that the loophole would lead some to lie about the circumstances that led to their pregnancy.

Now, in the post-Roe era — and at a time when opinions on abortion have been thoroughly sorted by partisan affiliation — Republican elected officials appear to be increasingly in sync with abortion opposition groups in rejecting rape and incest exceptions.

Particularly in solidly Republican and conservative states, Ziegler said, “if you’re in the pro-life movement, your attitude is that the Supreme Court is not a problem, the Republican Party is not a problem, so why not just ask for what you want?”

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Ziegler pointed to a comment made by James Bopp to Politico after the case of the 10-year-old Ohio girl became a national story. Bopp, the general counsel for the National Right to Life Committee, said his preference is that the 10-year-old “would have had the baby, and, as many women who have had babies as a result of rape, we would hope that she would understand the reason and ultimately the benefit of having the child.”

Bopp is “not some fringe figure” in the anti-abortion movement, Ziegler said. If elected officials adopt the argument that women must give birth after rape or incest, she said, they’ll be in alignment with the most staunchly anti-abortion advocates, but not necessarily with rank-and-file voters, even in solidly red states.

How the debate over exceptions could affect the midterm elections

There is anecdotal evidence that some Republican leaders are growing cautious about moving too fast on tightening abortion restrictions.

In Florida, Republican Gov. Ron DeSantis successfully urged the GOP-controlled Legislature to pass a 15-week abortion ban without exceptions for rape and incest before Roe was overturned. But since the Supreme Court’s action, DeSantis, who is running for reelection, has been quieter about whether he will pursue a law with an earlier cutoff. And in South Dakota, Republican Gov. Kristi Noem said she would not call a special session sought by some anti-abortion legislators to close what they call “loopholes” in the law.

Related: DeSantis stays quiet on abortion's future in Florida as Republicans strategize

Others do not seem worried about having to defend an unpopular position on abortion.

In Wisconsin, most of the leading Republican candidates for governor say they would enforce a law passed in 1849 that had been blocked by Roe and that includes no exceptions for rape and incest. (Democratic leaders are in court to block reimposition of the 1849 law.)

In Mississippi, House Speaker Philip Gunn was asked whether he would make an exception in the case of a 12-year-old girl raped by her father or uncle. He responded that she would have to carry the fetus to term and could choose to put the baby up for adoption. Tougaloo College political scientist Steve Rozman said he didn’t expect that view to become a liability in Mississippi, a state where Democrats have little chance of winning statewide office.

And in Oklahoma, Republican officials seem satisfied with laws that don’t include rape or incest exceptions, said Michael Crespin, a University of Oklahoma political scientist. This includes Gov. Kevin Stitt, who has said he wants to be the nation’s most “pro-life governor” and will sign any legislation that comes across his desk.

But in more politically competitive states, the prospect of abortion bans without rape or incest exceptions may energize abortion rights supporters.

In Michigan, for instance, abortion rights backers rapidly collected a record number of signatures to place a measure on the statewide ballot in November that would add a right to abortion in the state constitution, said Bill Ballenger, a political analyst and newsletter publisher in Michigan. Michigan’s 1931 law banning abortion — which includes no exceptions for rape and incest — could snap back into place, though Democratic officials are in court seeking to prevent that from happening.

In a state like Texas — solidly Republican for decades but with large pockets of Democratic voters — Rice University political scientist Mark P. Jones said there is some risk for Republican officeholders who don’t support exceptions on abortion.

Jones said a forthcoming survey from the University of Houston Hobby School of Public Affairs found that 77% of Texas registered voters believe that the state’s nearly complete abortion ban — which has no rape or incest exceptions — is too restrictive. Even a ban that included exceptions for rape and incest was too restrictive for 52% of respondents.

Political messaging on exceptions

Some Republican politicians frame abortion rights supporters as extremists on exceptions. In generally Democratic New Mexico, Republican gubernatorial candidate Mark Ronchetti — a former local TV broadcaster who is running a competitive race to unseat Democratic Gov. Michelle Lujan Grisham — argued that the incumbent “supports abortion up to birth.” “That’s extreme,” Ronchetti said.(Assertions that Democrats support abortion up to birth have often been inaccurate or misleading.)

One undernoticed aspect of the debate over rape and incest exceptions, Ziegler said, is that Democrats may have conflicted feelings about them. Emphasizing efforts to enshrine rape and incest exceptions in law could be seen as a willingness to accept strict limits on abortions that are not caused by rape and incest, and that runs counter to the beliefs of bodily autonomy that many abortion rights advocates feel strongly about.

It also would rob abortion rights supporters of a useful rhetorical tool, Ziegler said, since public views on abortion are likeliest to change when confronted with gut-wrenching examples, such as the case of the 10-year-old girl in Ohio.

Abortion rights supporters realize that if opposition to abortion is defined as forcing a 10-year-old to give birth, “some people are going to say, ‘Well, I must be pro-choice, then,’” Ziegler said.

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