Rape and incest abortion exceptions don’t really exist

The case of a 10-year-old Ohio rape survivor who traveled to Indiana to obtain an abortion drew national attention to Ohio’s near-total abortion ban, which does not allow abortions even in cases of rape or incest.

Ohio isn’t unusual. Despite broad agreement among Americans that victims of rape should be allowed to obtain an abortion, nearly all of the states with abortion bans do not make exceptions for rape or incest.

Out of the 13 states with abortion bans in effect, only a few of them have these exceptions: Mississippi has an exception for rape but not for incest, while South Carolina’s and Georgia’s exceptions extend to both. (Oklahoma has passed multiple bans — some with exceptions, some without — and it’s still unclear which takes precedence.)

Another nine states have passed bans that are on hold. Four of those states include exceptions, according to data from the Guttmacher Institute, a reproductive health rights think tank.

The modern rape and incest exception dates back to 1959 when a legal research group, the American Law Institute, wrote model abortion legislation for states. Republicans adopted the language as a compromise as they reformed their abortion legislation, while most anti-abortion groups opposed the rape and incest exceptions outright. They have argued that the manner in which a child is conceived does not matter and have been suspicious of women who claim to be victims of sexual assault. “The anti-abortion movement wanted to preserve the status quo, which was at the time that abortion was a crime throughout pregnancy unless a pregnant person’s life was at risk,” said Mary Ziegler, an expert on US abortion history and a professor at the University of California Davis School of Law.

Over time, some anti-abortion groups came to tolerate the politicians who opposed abortion and paid lip service to exemptions out of political necessity. And it was politically useful: Every Republican presidential candidate since Roe was decided in 1973, including Donald Trump, has said they support the exception.

There’s overwhelming public support for allowing victims of rape to obtain abortions. A recent Pew Research Center poll found that 69 percent of Americans, including 56 percent of Republicans and 83 percent of Democrats, said that abortion should be permitted when the pregnancy is the result of rape.

But anti-abortion activists, who have been influential in state abortion debates, have pushed for legislation that defies public opinion. Students for Life of America urged Republicans in 2019 to rethink the exception: “A child conceived in rape is still a child. We don’t blame children for other matters outside their control. Why should we do so here?”

The Republican Senate candidate in Ohio, J.D. Vance, said last fall that “two wrongs don’t make a right,” to explain his opposition to abortion in cases of rape or incest. In 2019, former Iowa Rep. Steve King defended abortion bans without exceptions by arguing that without pregnancies from rape or incest, there wouldn’t be “any population of the world left.”

The exceptions have been more useful as a political fig leaf, one that makes draconian bans seem less punitive, than as a way of meaningfully guaranteeing access to abortion for anyone. The vast majority of people who seek abortions in states with restrictions won’t be eligible under these exceptions. Abortion rights advocates are leery of the exceptions’ implication that there are “good” and “bad” reasons for receiving an abortion. And as carveouts meant to protect “the life of the mother” have shown, the existence of an exemption doesn’t make it easy or uncomplicated to get an abortion, even for those who theoretically qualify.

It’s unclear how many people seeking abortions need them due to rape and incest. Many states don’t require clinics to collect or submit this information, and survivors are typically reluctant to report that they’ve been abused. A 2005 analysis of two surveys involving about 1,200 women from the Guttmacher Institute found that 1 percent of women who had obtained abortions said they were victims of rape, and less than half a percent reported that their pregnancy was a result of incest.

“The ambiguity of these laws is a real barrier to access,” said Elizabeth Nash, a reproductive rights policy expert at the Guttmacher Institute. “Exceptions are narrowly tailored and difficult to interpret, which is scary for providers and patients. Abortion opponents see exceptions as loopholes — limiting access to abortion is the point.”

One example: When asked whether the 10-year-old Ohio rape survivor should have been given an abortion in her home state, Jim Bopp, general counsel for the National Right to Life, the country’s largest anti-abortion organization, said, “She 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.”

Most of the rape and incest exception clauses in abortion bans say that an abortion seeker must report the sexual assault to the police and then give the police report to their abortion provider, a process advocates say creates added stressors and hurdles for pregnant people.

In Mississippi, where a ban is in effect, the law states that, “No abortion shall be performed or induced [...] except in the case where [...] the pregnancy was caused by rape. For the purposes of this act, rape shall be an exception to the prohibition for an abortion only if a formal charge of rape has been filed with an appropriate law enforcement official.” The law does not specify who an “appropriate” law enforcement official is.

In Utah, where a judge is keeping the state’s abortion ban on hold due to a lawsuit filed by Planned Parenthood, the trigger law would ban almost all abortions but allow them in the case of rape or incest. Under this ordinance, the responsibility to verify that there was a rape falls on the health care provider.

The law states that the “physician who performs the abortion verifies that the incident [...] has been reported to law enforcement.” The physician would also have the responsibility to report any known child abuse. Physicians must comply “with requirements related to reporting suspicions of or known child abuse,” the law says.

In Idaho, where the state’s Supreme Court put its trigger law on hold, the ban would make the narrow exception for rape and incest only if police documentation is given to the provider. But that law, unlike the others, says that in the case of a minor or someone subject to guardianship, a parent or guardian has to be involved in reporting the incident to law enforcement or child protective services, and then have that documentation provided to the physician.

Idaho’s trigger ban has also gotten significant attention because it would deputize private citizens to file lawsuits against abortion providers — even family members of a rapist if the abortion resulted from sexual assault.

In South Carolina, one of two states with an abortion ban in effect that makes an exception for both rape and incest, the exception only applies within a certain time frame. The law states that “a physician may perform, induce, or attempt to perform or induce an abortion on a pregnant woman after a fetal heartbeat has been detected [...] if the pregnancy is the result of rape, and the probable post fertilization age of the fetus is fewer than twenty weeks; [and] the pregnancy is the result of incest, and the probable post fertilization age of the fetus is fewer than twenty weeks.”

Georgia’s abortion ban, which took effect on July 20 following legal challenges, sets a similar requirement. A person cannot pass the maximum 20-week “gestational age of the unborn child” and be covered under the rape and incest exception.

Laws in states like South Carolina and Wyoming do not specify how doctors are to determine a patient’s claim of rape or incest.

Abortion advocates see all kinds of issues with these requirements. They create additional roadblocks for abortion seekers who are already facing challenges in a country where anti-abortion advocates want to ban the procedure outright, and who have undergone a traumatic experience already. The majority of sexual assaults — two out of three — are not reported to the police, and rape victims are often assaulted by someone they know, which further complicates their decision to file a report since they fear retaliation or believe the police won’t help, among other reasons.

And when people do report having been sexually assaulted, they are often not believed by law enforcement: The story of the 10-year-old Ohio rape survivor wasn’t believed, with Ohio Attorney General Dave Yost claiming that “there was not a damn scintilla of evidence” to support the story. Onlookers only believed the story when news broke that the 27-year-old perpetrator came forward and confessed to raping the child at least twice.

In the states where official reports are required, some advocates have argued that police reports are difficult to acquire while an incident is still under investigation. This creates complications since abortions are safer when performed during a certain window of time. Additional requirements could mean delays.

“The reality is that we don’t know what the numbers would look like if the only way you could get an abortion in that type of case is through the trauma of having to establish that publicly,” Ziegler said. “So I don’t think these exceptions are symbolic because they’re going to affect a lot of people. But the symbolism is important, too, in the sense that it’s a sign that Republicans don’t care about public opinion. That’s disturbing because the Supreme Court told us that the reversal of Roe would mean that voters would get to have their say.”

The exceptions also present challenges for abortion providers, who must now interpret the law to determine whether they can provide services. Authorities in Indiana initially falsely claimed that the abortion provider who helped the 10-year-old Ohio rape victim did not report the abortion to authorities. The provider is now suing the state for maligning her name.

And in states where the exceptions exist, that’s no guarantee that patients will be able to access abortion. Some abortion clinics in states with bans cannot afford to keep their doors open to serve patients who are pregnant due to rape or incest.

“In order to be able to keep our doors open — and I’m not saying there’s not a lot of people assaulted — for the people who are assaulted, get pregnant, want to disclose it and want to have an abortion, it would be impossible for us to maintain a staff, maintain a facility and all of that,” Tammi Kromenaker, director of the Red River Women’s Clinic in North Dakota, told Politico.

As health care providers in Idaho, Mississippi, North Dakota, and Wyoming told the publication, it’s easier for patients to travel across state lines to seek an abortion than to try to navigate vague rape and incest exceptions.

“We know that well over half of people in the United States support abortion rights, so there is clearly a mismatch with what legislators are doing,” Nash said. “Abortion bans are unworkable, as are these exceptions.”

If you or someone you know has experienced sexual assault or abuse, there are people who want to help. Visit RAINN.org or call 800-656-HOPE (4673).