In the years before Roe. v. Wade, some states that had outlawed abortion began permitting it in limited circumstances: in cases of rape or incest, or to save the life or health of the woman.
And for decades after the Roe ruling guaranteed the right to abortion throughout the United States, abortion opponents from Ronald Reagan to Donald J. Trump generally supported those exceptions, even as they worked to undo Roe.
Exceptions for rape, incest and life endangerment are codified in the Hyde Amendment as the only reasons the federal government will pay for abortions through Medicaid. For decades, surveys have shown that large majorities of Americans support these carve-outs, even in heavily Republican states.
But if the Supreme Court overturns Roe, as expected, many state abortion bans would take effect that do not include most of the exceptions.
There are no allowances for victims of rape or incest in Alabama, Arkansas, Florida, Kentucky, Louisiana, Missouri, Oklahoma, Ohio, South Dakota, Tennessee or Texas. Mississippi, whose law banning abortion after 15 weeks is at the center of the case the Supreme Court will rule on this month, permits an abortion in cases of rape but does not specify incest.
While all bans allow an exception to save the life of the woman, those in some states, such as Idaho, South Dakota and Arkansas, do not also cite protection of her health.
The state senator who sponsored the Arkansas legislation, Jason Rapert, a Republican who is president of the National Association of Christian Lawmakers, said that his faith drove his views on abortion. He said he had heard testimony from rape and incest victims who expressed “the mental anguish they went through when they dealt with the fact they terminated the life of their own baby,” and who now oppose abortion.
Arkansas’s only abortion exception is to save the woman’s life in “a medical emergency.” Mr. Rapert called exceptions to protect a woman’s health “an open door you could drive a truck through. You could describe anything that way.”
Many of the new bans are set up as so-called trigger laws in 13 Midwestern and Southern states, intended to take effect swiftly if Roe falls. At least nine more states are weighing similar bans — some of which have been paused by courts — or could revive pre-Roe abortion prohibitions. The outcomes will depend on the details of the Supreme Court’s decision and the politics of each state.
“I think we are heading in a direction of increasing absolutism and punitiveness,” said Reva Siegel, a Yale Law School professor who is a co-author of an equal protection amicus brief in the Mississippi case before the Supreme Court. She noted that even as Mississippi legislators restricted abortion access, they refused to expand postpartum Medicaid coverage.
The move away from exceptions reflects the Republican Party’s shift to the right, said Mary Ziegler, a legal historian at the University of California, Davis, Law School and author of “Dollars for Life,” a book to published this month about the anti-abortion movement and the Republican Party.
Candidates are increasingly jockeying for far-right support in primaries in Republican-dominated states, she said, aware not only that turnout typically consists of the most fervent voters but also that national anti-abortion groups are searching for local standard-bearers to fund.
Much of that rightward shift has been propelled by Mr. Trump. But during the 2016 and 2020 campaigns, Mr. Trump said in tweets that he supported exceptions to allow abortion for pregnancies resulting from rape and incest, or to protect the life of the mother. A spokesman for Mr. Trump declined requests from The New York Times to describe the former president’s current position on exceptions, or his reaction to the state bans that don’t include them.
Though embracing limited exceptions might have once seemed politically expedient, the aims of the anti-abortion movement have grown increasingly unconditional. As the composition of the Supreme Court became more conservative, Ms. Ziegler said, there has been “a sense that the movement could pretty much get whatever it wanted without alienating the court.”
Now, anti-abortion groups are debating whether to accept any exception to a ban.
Students for Life, an anti-abortion organization, distinguishes between exceptions for rape or incest, and one to save the life of the woman, said Kristan Hawkins, the group’s president. How a child was conceived, she said, is irrelevant to the value of that child’s life: “We see them as valuable, worthy of love, and welcome.”
The group does, however, support exceptions for a lifesaving abortion. “That is not an act of abortion,” she said, “as the intent of abortion is to end life, not intervene to save life if possible.”
But some groups, like Pro-Life Wisconsin and those affiliated with the abortion abolition movement, reject all exceptions, as does Doug Mastriano, the Republican nominee for governor of Pennsylvania, who calls abortion “science-denying genocide.”
Some abortion rights supporters argue that focusing on exceptions is misguided. When people express shock that the new laws do not allow exceptions for rape and incest, “they seem to suggest that if those exceptions are granted, the new restrictive laws are more reasonable,” said Leslie J. Reagan, a historian of American medicine and public health at the University of Illinois at Urbana-Champaign. Whether or not there are exceptions, some state bans include criminal penalties, which Dr. Reagan, author of “When Abortion Was a Crime,” called “a step backwards to the century of criminalized abortion that the U.S. has already lived through.”
The history of exceptions stretches back decades. In 1959, the American Law Institute, an independent group of legal scholars, lawyers and judges, began drafting model legislation to modify the crime of abortion. It proposed that termination be permitted if a physician decided there was grave risk to the health of the woman, or to the fetus, or if the pregnancy was the result of rape or incest.
Two threats to a fetus were then of profound concern. One was the morning sickness drug thalidomide, tested on American women in the 1950s, that could cause severe birth defects or stillbirths. Another was rubella, commonly known as German measles, that could result in stillbirth or in life-threatening effects on the baby (a vaccine was approved in 1969).
Over the next 14 years, at least 13 states would adopt some of those exceptions. Ms. Ziegler said that abortion opponents saw the exceptions as a compromise, acknowledging these were “hard cases, a fight not worth having because the country wasn’t there yet.”
The idea behind the rape and incest exceptions in particular, she added, “was that people who had been sexually assaulted had not chosen to have sex, so you could legalize abortion in those cases without encouraging promiscuity, which was something the authors were worried about.”
Allowing an abortion to save the woman’s life was encoded in abortion bans throughout the country for nearly a century before the Roe ruling. Police enforcement of the bans waxed and waned over the decades, depending on local political, social and economic factors.
By the 1940s, police were raiding offices of licensed physicians who performed abortions, compelling patients to testify against their doctors. To offer doctors criminal liability shields , hospitals set up committees to evaluate which cases qualified for “therapeutic” abortions. But though hospital-sanctioned abortions provided a legal alternative to back-alley abortions, they were expensive and rarely authorized by the committees.
Although the exceptions in the new abortion bans are scant, states nonetheless require doctors as well as patients to supply substantial documentation to justify the need.
Florida’s law banning abortion after 15 weeks of gestation, scheduled to take effect July 1, says doctors must record the medical necessity for an abortion to save the woman’s life or to “avert a serious risk of imminent substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition, and another physician is not available for consultation.”
Many doctors see the statutory language that only permits abortion to prevent death or severe injury as putting them in violation of their professional oaths to their patients. Though states are often vague about thresholds such as life or “medical emergency,” they often require extensive documentation to justify the procedure, including gestational age of the fetus, indication of cardiac activity and medical records attesting to, as Oklahoma says, “the medical condition of the pregnant woman that prevented compliance with this act.”
Yet the impact of the documentation requirements can cut both ways. Some state laws suggest that ample records can serve to defend the doctor against criminal conviction.
“If doctors in these states are going to perform abortions, they will be checking with a hospital lawyer first,” said Elizabeth Nash, a policy analyst at the Guttmacher Institute, a reproductive health rights group that supports abortion.
In essence, abortion exceptions that, decades earlier, were an attempt by lawmakers to keep pace with medical practice, have now come full circle: “The physical health of the woman will become more of a legal question than a medical one,” Ms. Nash said.
