BOISE, Idaho (AP) — 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, which bans abortion after six weeks, is one of at least 22 states with laws banning abortion before the 15th week, 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 US Supreme Court issues a ruling overturning the 1973 Roe v. 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 miscarriage 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 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, 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, according to the Guttmacher Institute and Associated Press reporting.
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 the report was made. Only about a 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 that just 8% of US adults think abortion should be illegal in all cases with no exceptions, and that 61% of adults say abortion should be legal in most or all circumstances. Surveys consistently show that many Americans have nuanced attitudes around the legality of abortion depending on the stage of pregnancy, circumstances of conception and health of the mother or fetus.
Arkansas has two near-total 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, though 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 abortion-rights supporting Guttmacher Institute, 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 anti-abortion 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, Kansas, opposes rape and incest exceptions. Their 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.”
Democratic Rep. Tavia Galonski countered that pregnancy is often traumatic and dangerous on its own, adding: “To then force a survivor of rape to carry a pregnancy to term and go through childbirth is utterly vile and only adds to the trauma they have already suffered.”
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.
“I’m just asking that the men in this body give the women and girls of this state” a choice, McLeod said.
New Hampshire has banned abortion after 24 weeks of gestation except for when the woman’s health is threatened, though the state will soon add an exception for fatal fetal anomalies. The Republican-led legislature has rejected attempts to add rape and incest exceptions.
Republican Rep. Beth Folsom, who said in January that she is a rape survivor, argued the exceptions aren’t necessary because rape victims carefully track their menstrual cycles and wouldn’t wait 24 weeks to seek an abortion. An incest exception wasn’t needed, she added, because “that aggressor is going to make sure that young girl or woman has an abortion before anyone finds out.”
Mallory Schwarz, executive director of Pro-Choice Missouri, expressed concern that provisions in laws like 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.
“Any of those kind of pieces that are left up to interpretation are generally going to have a broad chilling effect on providers who don’t want to jeopardize their career and livelihood and practice and ability to care for other patients,” Schwarz said.
Many bans outlaw abortion after six weeks, when vaginal ultrasounds can first detect electrical activity in embryonic cells that may later become the heart. Proponents call them “heartbeat laws,” arguing that cardiac activity is a reliable indicator of life.
In Idaho, Housley has repeatedly tested 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,” Housley said. 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.”
Hanna reported from Topeka, Kansas. Associated Press writer Hannah Fingerhut and AP statehouse reporters from around the US contributed.