How do rape and incest exceptions work in state abortion bans?

·Producer
·9 min read

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A number of states are set to implement near-total abortion bans if the Supreme Court overturns Roe v. Wade next month, but some bills contain notable exceptions, like provisions for victims of rape and incest or for an expectant mother whose life is at risk.

If enacted, the laws may force sex-crime victims to navigate the complexities of proving that they are eligible for the exceptions. This could be an especially daunting process for women who are already traumatized by their assault.

“For some, going through all of that will be just utterly exhausting to such a degree where it can feel hopeless,” Michele Goodwin, chancellor's professor at the University of California, Irvine, and author of “Policing the Womb,” told Yahoo News.

Oklahoma passed a bill last week that would ban abortions from the stage of “fertilization” and would require a law enforcement report to be eligible for the rape and incest exceptions. Other states have made similar legislative moves, emboldened by the recent Supreme Court leak showing that a conservative majority had backed overturning Roe and the constitutional right to an abortion. The high court’s decision is expected next month.

But more than two out of three sexual assaults go unreported to police, according to the Rape, Abuse & Incest National Network. Many victims say their silence is due fear of retaliation and social stigma.

“In the process of going through all of these things, they may not be able to meet the state’s timeline in which they’re able to terminate a pregnancy. So that even if these exceptions do exist, it’s not as if the current exemptions, as they are, create any kind of dignified path to be able to get this kind of health care,” Goodwin said.

The process is even more challenging for minors, especially those assaulted by their legal guardian. Goodwin further noted that many young girls may lack the financial resources to navigate the legal bureaucracy.

“Imagine a situation where now you have to get the permission of your father, the person who raped you, in order to be able to get the abortion, or you have to go to a court and find a judge and get on a schedule in order to be able to do so,” she said.

Goodwin and two other experts spoke to Yahoo News about how both states and women will navigate these types of exceptions. They are Dr. Jennifer Villavicencio, the lead for equity transformation at the American College of Obstetricians and Gynecologists, and Elizabeth Nash, state policy analyst at the Guttmacher Institute.

Read their discussion below.

(Some responses have been edited for length and clarity.)

Yahoo News: What are abortion ban exceptions?

Michele Goodwin: Historically, the exemptions with regard to the criminalization of abortion have been rape, incest, the health or the life of the pregnant person. And historically that’s been the case even up until months ago [when] we saw the first of a wave of abortion laws that made no exceptions (Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Tennessee and Texas). I think that’s particularly revealing given that those are coming from red states with Republican governors.

How do pregnant people utilize an abortion exception in cases of rape or incest in states where abortion is otherwise restricted?

Goodwin: Each state will have its own laws related to this, [and] it’s actually hard to follow a formula. So to go online, someone who has been raped or someone who has suffered through incest, it’s not so easy to just find “Here’s the process that I must do.” But the first is to find your local precinct and file a police report. There [may be] a question as to whether someone will make that easy for you to file the report or not. And if you’re a minor and you file the report, then [the police] are going to be obligated to contact social services. If [the girl has] been a victim of incest, social services will seek to remove the girl from the family immediately.

It’s not clear whether social services will actually believe her, but social services will actually take her away from the home and then seek to place her in some alternative care, [and] that alternative care is not always some loving foster family.

That actually does not mean the next step that she gets to take is one toward being able to terminate the pregnancy. In most states there are a series of requirements that involve a person having to make multiple visits to the place in which they seek to be able to get an abortion.

Now in order to be able to terminate the pregnancy, she’s going to go through this process of informed consent and waiting period. But before that, she actually has to get permission from a parent or to get the judicial bypass (which allows a minor to get an abortion without the notification or consent of her parents.) So now this 12- or 13-year-old girl has to figure out, “What court do I go to? And how do I get this judicial bypass in order to do this?” Or go to her mother and say, “Well, now I need for you to sign these necessary papers in order for me to be able to have access to get an abortion” — something that the mother involved in the situation may not be interested or willing to do, or may not be available to do.

Imagine a situation where now you have to get the permission of your father, the person who raped you, in order to be able to get the abortion, or you have to go to a court and find a judge and get on a schedule in order to be able to do so. And this is not sort of mindful of the fact that she still needs money to be able to do this. And on top of still needing money to be able to do this, the state has various time limits. If she's in Texas, she's out of luck basically because Texas has a six-week window at a time in which most girls and women will not know that they are even pregnant.

For some, going through all of that will be just utterly exhausting to such a degree where it can feel hopeless. In the process of going through all of these things, they may not be able to meet the state's timeline in which they’re able to terminate a pregnancy. So even if these exceptions do exist, it's not as if the current exemptions, as they are, create any kind of dignified path to be able to get this kind of health care.

What additional medical burdens are placed on the pregnant person seeking an abortion in states with restrictions?

Dr. Jennifer Villavicencio: What I can tell you as having provided abortion care as well as comprehensive ob-gyn care in states in which there were restrictions, in which reporting was required, particularly for people who are underserved and getting Medicaid for their insurance, there were severe restrictions. We had to make sure that we were reporting these things, and it was an invasion of privacy. It oftentimes was not at the will of the patient. We would have to do extra tests. We had to do extra ultrasounds. We had to do extra forms in order to comply with these laws.

I want to be really, really clear. These laws are not based in medical science. They are not based on the gold standard of medical care. The gold standard is based in the decades-long evidence that we have and what is needed to safely provide abortion care in both the first trimester and the second trimester.

At what point does a physician determine whether a pregnant person’s life is at risk in order to qualify for the abortion exception?

Dr. Jennifer Villavicencio: When I hear about the exception for threat to the life of the person who's pregnant, or the mother, that is such a vague statement.

There are no bright lines anywhere that says somebody crosses from one threshold to another, and now all of a sudden their life is at risk. As medical experts, as doctors, as people who work to save lives every single day, we do everything possible to keep you from getting to a point where your life is at risk, and sometimes that means ending a pregnancy that could put your life at risk.

What is really unfortunate, and frankly scary for me, is that now if I'm in one of these states, if my colleagues are in these states, they’re going to have to be thinking about and waiting up until the moment that they feel like they’re willing to risk their livelihood, their license, potentially even criminal penalties to say that someone’s life is at risk.

It’s really quite egregious to say, “Oh, well, we have an exception and people aren’t going to die.” People are going to get much, much sicker, and sometimes they’re going to get so sick that there’s not an intervention that we can do to bring them back. That’s why we talk about these laws as being life-threatening because they truly, truly are.

What burden is placed on medical experts in states where abortion bans and exceptions are in place?

Dr. Jennifer Villavicencio: When you are putting laws like this that either make it illegal, a financial or even a criminal penalty for providing this care, you are threatening the medical experts that are offering this care. You are essentially telling doctors that they need to think about something other than the patient that’s sitting in front of them, the person that is in front of them that needs help.

If Roe v. Wade is overturned, which states would likely have abortion bans and exceptions?

Elizabeth Nash: If Roe is overturned, we are looking at about 26 states that are certain or likely to ban abortion, and that includes 13 states that have these trigger bans, which are abortion bans that go into effect if Roe is overturned. All of them have an exception for threat to the life of the mother. Out of the trigger-ban states, you have four states that do have rape and incest exceptions. Those are: Mississippi, North Dakota, Utah and Wyoming. The other nine states (Arkansas, Idaho, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Tennessee and Texas) don’t have those exceptions.

It’s important to stay on top of what’s happening with the abortion bans, assuming Roe is overturned, because they won’t all go into effect at once. It won’t be like a light switch. It will be hours, weeks, days, maybe a month or two or three. And states may even amend their laws after this decision comes down, so keeping on top of that is important to understand what abortion patients will need and perhaps what you may need or what a family member or a friend may need.

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