Exceptions to Abortion Bans Further Restrict Access to Care
While bans on abortion are never acceptable, politicians have typically included at least some narrow exceptions in an attempt to make these restrictions more palatable to the public. Most often, these exceptions exist in cases of rape or incest and to protect the life and/or health of a patient. And while anti-abortion politicians are increasingly abandoning this long-standing tradition and eliminating many different types of exceptions from legislation—particularly for rape and incest survivors—exceptions still exist in various forms under statutes across the country.
Exceptions under the Hyde Amendment
While outside the scope of this column, it is important to note that exceptions to the federal Hyde Amendment—which prohibits coverage of abortion care under federal insurance programs such as Medicaid except in cases of rape, incest, or life endangerment—are similar to those found in outright bans. As a result, many of the challenges detailed below in regard to exceptions more generally also apply to administration of the Hyde Amendment.
To be clear, abortion care should not be available only when these narrow categories apply. The deeply personal decision of whether or not to have a child should not be subject to politicians’ opinions on who “deserves” care. But with the U.S. Supreme Court poised to overturn Roe v. Wade and deny the right to an abortion, abortion is likely to become illegal in nearly half of states except in very narrow circumstances.
The deeply personal decision of whether or not to have a child should not be subject to politicians’ opinions on who “deserves” care.
As a result, it is important to understand how some of the most common exceptions work—or, rather, fail to work—in operation and merely further restrict access to care.
Rape and incest exceptions
To understand the motivations behind the operation of many rape and incest exceptions today, it is important to understand their origins.
First proposed in the late 1950s, rape and incest exceptions were immediately denounced by opponents of reproductive rights—who employed rhetoric similar to that of many extremist politicians today, including those who tell women and girls regardless of age to view their pregnancies resulting from rape as an “opportunity.”
Soon after rape and incest exceptions were first proposed, a notable opponent of abortion put forth a novel medical theory: that becoming pregnant from rape was nearly impossible. While this myth has repeatedly been refuted, its existence helped bolster activists’ claims that women would lie about being attacked in order to access abortion care. As a result, while standards vary across the country, states have trended toward requiring reporting to law enforcement or other government agencies—an attempt to make survivors “prove” they aren’t lying about being attacked.
The harms these requirements can have are clear. Already, only a small fraction of sexual abuse is reported: One recent U.S. Department of Justice report estimates that nearly 80 percent of rapes and sexual assaults go unreported, from reasons that include fear of retaliation as well as the belief that police will not help.
A confusing patchwork of laws
The laws governing exceptions vary widely. But public information on even the relatively least burdensome processes to securing an exception is often difficult to find and bureaucratically complex to navigate for both patients and providers. As a result, even if care is secured, that care is often provided later in pregnancy, at higher cost, and with fewer options for the patient.
For minors, navigating this system is often flatly impossible and dangerous, particularly in the tragic, but not uncommon, event that young survivors are being abused by their parent or guardian.
Life and health exceptions
As in cases of rape or incest, state laws on the breadth and scope of health-related exceptions vary significantly.
To start, it is important to note that there has historically been a distinction between exceptions to save the life of the patient as opposed to those designed to protect a person’s health more generally. These two categories, however, are becoming practically indistinguishable from one another in many states.
Exceptions for the life of the patient—often described in statute along the lines of an exception made when “necessary to preserve the life of such woman”—present significant questions for medical professionals.
Dr. Lisa Harris of the University of Michigan explains the challenge succinctly:
My question is, is it a 25 to 30% chance of dying? Is that enough threat to someone’s life … Or is the Legislature imagining, “No, it has to be more, 50% or more than 50% or even 100%, always an ICU, imminent risk of dying situation?”
Health exceptions, at least, arguably allow for care in more circumstances than life exceptions. Yet many states only allow for that care to be provided in order to prevent a “serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman” or in the case of a “medical emergency.”
Some states explicitly require such an emergency to be physical in nature, meaning a mental health crisis of any sort would not apply. This is particularly dangerous given the fact that suicide is a major cause of death during the postpartum period, especially when mental health issues present during pregnancy. Being forced to continue a pregnancy against one’s will would only increase the risk of suicide.
Furthermore, in the states that do not allow for abortion even in cases where it is overwhelmingly likely that the pregnancy would result in a stillbirth or the baby would die very quickly after delivery due to severe medical complications, the lack of an exception for mental health means that an anguished woman would be forced to carry a pregnancy to term knowing that tragedy awaits in the end.
In addition, if a serious medical condition exists but does not rise to the level of an emergency, care would also be denied—or at least delayed until a patient worsened to the point of crisis.
This could occur, for example, when a patient has a high risk of cardiac failure but is not yet presenting with symptoms. And cancer patients could be denied an abortion even if their condition significantly limited, or foreclosed altogether, their treatment options.
As with life exceptions, the vagueness of these standards can—and, indeed, is intended to—have a chilling effect on health care providers who move forward with providing care to a patient. Doctors in states with abortion bans in place are almost always subject to significant criminal penalties and even jail time: In Alabama, for example, doctors can face up to 99 years of jail time for providing care, and Texas allows for life sentences. It is important to note that the criminal nature of these penalties is largely unique to abortion. Indeed, the threat of prosecution can cause doctors to delay or foreclose treatment as they attempt to grapple with the law.
Recent events in Texas, which banned abortion after six weeks with only a medical emergency exception, underscore how dangerous this chilling effect can be. A pharmacy in Texas recently refused to prescribe medication used to end an ectopic pregnancy—a life-threatening condition that never results in the birth of a child—out of fear of getting in trouble. In a separate circumstance, a woman was forced to travel to New Mexico to find a doctor who would treat her ectopic pregnancy.
What You Need to Know About Roe v. Wade and Abortion in America One Week After Alito’s Draft Opinion
The Overwhelming Restrictions on U.S. Abortion Rights and Access
Every ban on abortion is a direct attack on women’s autonomy and dignity, stripping them of their ability to make a deeply personal decision about their own future. Moving forward, it will be critical for policymakers to look for ways to ease the reporting requirements and bureaucracy surrounding abortion exceptions, while also continuing to work to safeguard reproductive rights overall for every person. Moreover, it is vital to restore and empower the ability of medical providers to offer the highest standard of care to their patients. Doing so won’t be a cure-all for the crisis in abortion access that awaits, but it is nonetheless an important and necessary step forward.
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Senior Director, Women\'s Initiative