Some Republican states set to ban abortion without exceptions for rape and incest

·Senior Editor
·6 min read

As states across the country prepare for the likely overturning of Roe v. Wade in June, attention has shifted to the forthcoming efforts to outlaw abortion in Republican-controlled states. And, despite the unpopularity of such measures, it seems that many red states are planning to ban abortion without any exceptions for rape or incest.

Of the 22 states with abortion bans that will instantly take effect if the landmark Supreme Court ruling is overturned, 10 have passed laws that make no exceptions for rape or incest: Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Tennessee and Texas.

The majority of these measures were passed by Republican-controlled state legislatures, suggesting that the issue may become an albatross for the party. When Mississippi Gov. Tate Reeves, a Republican, appeared on NBC’s “Meet the Press” on Sunday, he falsely asserted that his state’s abortion ban has an exception for rape and incest. When host Chuck Todd noted that it doesn’t, Reeves avoided taking a position on whether such an exception should be added to the law.

Mississippi Gov. Tate Reeves
Mississippi Gov. Tate Reeves. (Rogelio V. Solis/AP)

“That decision was made by the Mississippi Legislature, and I think there is certainly a conversation,” Reeves said. “We’ll see what happens based upon the ultimate outcome of the Dobbs case that is before the Supreme Court.”

Republican senators, meanwhile, are mostly ducking the question when asked. “You’re asking me a hypothetical question,” Sen. John Kennedy, R-La., told reporters, according to Insider. “Come back and see me after the Supreme Court rules.”

“I’m not projecting ahead,” said Sen. Joni Ernst, R-Iowa, the only woman in the Republican Senate leadership. “We need to go through the process with the Supreme Court.”

Most of the American public supports legal abortion in general, and banning abortion without exceptions is especially unpopular — even among Republicans.

The latest Yahoo News/YouGov poll, which was conducted from May 3 to May 6, found that 31% of U.S. adults want Roe v. Wade to be overturned. The 1973 Supreme Court ruling established a constitutional right to an abortion in the early months of pregnancy. A draft majority opinion in Dobbs v. Jackson Women’s Health Organization, written by Justice Samuel Alito and leaked to Politico last week, would remove that protection, paving the way for states or the federal government to outlaw abortion.

The Yahoo News/YouGov poll also found that only 22% of Americans support a national ban on abortion — which Senate Minority Leader Mitch McConnell, R-Ky., said last Thursday may be passed if the GOP takes control of Congress — versus 48% who would support a federal law protecting abortion rights.

But the unpopularity of an abortion ban without exceptions is even starker: 71% said abortion in cases of rape or incest should be “generally legal,” while just 15% said it should be “generally illegal.” Eighty percent of Democrats, 60% of Republicans and 74% of independents said abortion should be legal in cases of rape or incest. Only 25% of Republicans said abortion should be illegal in cases of rape or incest. Eighty-eight percent of people who voted for Joe Biden in 2020 said it should be legal, as did 61% of those who voted for former President Donald Trump.

Senate Minority Leader Mitch McConnell
Senate Minority Leader Mitch McConnell speaks to the press after reports that the Supreme Court could overturn the 1973 Roe v. Wade decision. (J. Scott Applewhite/AP)

Other polls have found similar results. A Pew Research Center survey conducted in March found that just 8% of American adults think abortion should be illegal with no exceptions, whereas 29% said it should be illegal but with exceptions.

For the last four decades, most Republican elected officials have been broadly anti-abortion, but the lack of exceptions is a newer phenomenon. While every Republican president since Ronald Reagan has favored exceptions for rape and incest, Sen. Rick Scott of Florida, who chairs the National Republican Senate Committee, recently declined to comment to Insider on whether he will support such exceptions after Roe is overturned.

Not all Republican politicians are as reticent: In Pennsylvania, the frontrunner for the Republican gubernatorial nomination, state Sen. Doug Mastriano, favors outlawing all abortions without exceptions.

“Something has changed, at least in Arkansas, and I perceive nationwide,” Arkansas state Sen. Jim Hendren, who left the GOP and became an independent after the insurrection of Jan. 6, 2021, recently told the Guardian. Hendren identifies as a “pro-life” legislator, but he voted “present” on Arkansas’s blanket abortion ban after determining that an amendment he drafted creating exceptions for rape and incest would not have the support to pass.

Pennsylvania state Sen. Doug Mastriano
Pennsylvania state Sen. Doug Mastriano, an anti-abortion hard-liner, is a candidate for governor. (Matt Rourke/AP)

“The fact is, it’s a different ethical dilemma when you’re talking about a 10-year-old girl who is a rape victim being responsible for the actions of a criminal, versus someone who is responsible for their own actions,” Hendren said. He added that some of his Republican colleagues privately told him they agreed with his proposal but feared being branded as pro-abortion by a primary opponent.

Despite the unpopularity of no-exception abortion bans, even among Republican voters, the legislators responsible for such laws have not faced repercussions at the ballot box.

“We’ve seen state legislatures adopt restriction after restriction and ban after ban, and these legislators remain in power,” Elizabeth Nash, a policy analyst at the Guttmacher Institute, a pro-abortion-rights think tank, told the Atlantic. “It doesn’t feel like there are any consequences for them.”

Under Roe, these laws were essentially symbolic. Once they take effect, the public may react. According to the Yahoo News/YouGov poll, Democrats led Republicans by 5 percentage points when survey respondents were asked which party they will vote for in the upcoming congressional elections, but the Democrats’ advantage widened to 13 points when the question was framed as a “pro-choice Democrat” versus a “pro-life Republican.”

Demonstrators outside the Supreme Court
Demonstrators outside the Supreme Court on May 4. (Alex Brandon/AP)

Abortion rights advocates, meanwhile, argue that legal exceptions for rape and incest do not actually protect all victims of rape, as they typically require rape survivors to file a police report, which most rape victims — often feeling shame or fearing being ostracized — fail to do. (The Associated Press recently reported that just one-third of sexual assaults are reported to police, according to the Rape, Abuse & Incest National Network.)

Idaho and Utah both have abortion bans with exceptions for rape or incest on the books, but they require the pregnant woman to have filed a police report and shown it to the abortion provider before getting the procedure.

Nash of the Guttmacher Institute told the AP last week that of 86 proposed state-level abortion restrictions this year, only a few include rape and incest exceptions.

"You might think these exceptions are helpful,” Nash said. “But in fact they’re so restricted, they’re very hard to use.”

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