BOISE, Idaho — 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 U.S. 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 abortion 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, the 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 percent of U.S. adults think abortion should be illegal in all cases with no exceptions, and that 61 percent 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, Kan., opposes rape and incest exceptions. Their rationale: “Don’t punish the baby for the crime of the father.”
