How The GOP Got Comfortable Pushing Abortion Bans Without Rape Exceptions

Abortion bans with nearly no exceptions were once taboo. But now they're mainstream and on their way to becoming law in several states — as Roe hangs in the balance.
Illustration: Damon Dahlen/HuffPost; Photos: Getty

Nearly a decade ago, a Republican congressman from Missouri was asked if abortion restrictions were ever to be enacted, should there be exemptions for cases of rape. The answer made Rep. Todd Akin a household name overnight.

Speaking of pregnancy resulting from rape, Akin said, “It seems to me, first of all, from what I understand from doctors, that’s really rare. If it’s a legitimate rape, the female body has ways to try to shut the whole thing down.” His bizarre medical quackery was in service of an inflammatory argument: that abortions should be banned, full stop, even when a rape occurred.

At the time, Akin enjoyed wide polling leads over incumbent Claire McCaskill in the race for a Senate seat and seemed to be cruising to victory. But the interview went viral, and many of Akin’s Republican colleagues openly criticized him. The presidential campaign of Mitt Romney and then-Rep. Paul Ryan (R-Wis.) issued a statement disclaiming Akin’s remarks and clarifying that “a Romney-Ryan administration would not oppose abortion in instances of rape.”

Akin lost the senate race by over 15 points, and in a state the Romney-Ryan ticket carried by nine points. Akin’s career was over.

But 10 years later, Akin’s position has gone mainstream — and at the same time, access to abortion is quickly being chipped away in red states and the fate of Roe v. Wade hangs in the balance.

In the last two months, both Arizona and Florida passed 15-week abortion bans with no exceptions for rape or incest. Arizona Gov. Doug Ducey (R) signed the bill into law last month, and Florida Gov. Ron DeSantis (R) is expected to sign his state’s measure sometime in June.

Much of the momentum for the anti-abortion party started months before these 15-week bans when Texas passed the most extreme abortion restriction in recent history. The Texas law bans abortion at six weeks with no exceptions for rape or incest, and financially incentivizes private citizens to enforce it.

The enforcement mechanism behind the Texas law is what allowed the restriction to sidestep court challenges, and enabled others to follow in the Lone Star State’s footsteps. Last month, Idaho passed a Texas copycat law, and while it allows exceptions for rape or incest, it forces women to file a police report and provide it to a physician before being allowed to get an abortion. And, if a woman fails to do all of this before her abortion, the rapist’s family members could sue and collect damages.

Oklahoma just passed a near-total abortion ban with no exceptions for rape or incest that would make performing an abortion a felony. And the 2018 Mississippi abortion ban that’s currently threatening Roe also has no exceptions for rape or incest.

Other states currently trying to pass Texas copycat bans with no exceptions for rape include Tennessee, Ohio, Missouri and more.

The country saw a rash of extreme abortion restrictions with no rape or incest exceptions back in 2019, too. One after another, Alabama, Ohio, Mississippi and Louisiana all abandoned what had once been standard language in anti-abortion measures. All of the measures were blocked, but — using Texas’ enforcement mechanism — those lawmakers would likely be able to enact those 2019 bans today.

“When did anti-choice advocates abandon rape and incest exceptions in abortion bans? And why are Republicans, now, seemingly less interested in making abortion restrictions more palatable to voters?”

GOP lawmakers who oppose abortion have always believed exceptions for rape or incest in these measures are unnecessary, several pro-choice advocates told HuffPost. But it wasn’t until the last few years that abortion restrictions without those exceptions became part of the mainstream Republican narrative.

The bills are being signed by some governors, like DeSantis, who will likely run for president in the near future. And those once-fringe bills with no exceptions are now quietly being passed into law, eroding the constitutional right to abortion on the state and federal levels.

When did anti-choice advocates abandon rape and incest exceptions in abortion bans? And why are Republicans, now, seemingly less interested in making abortion restrictions more palatable to voters?

A Long-Running Argument

In 1959, the American Law Institute, a nonpartisan research group, proposed a model abortion law that effectively made it standard practice to include exceptions for rape and incest in any abortion measure. Staunch anti-abortion scholars immediately condemned the proposal, including one well-known attorney named Eugene Quay. Quay made the argument in a highly-publicized article that women can’t become pregnant as a result of rape, implying that most women will lie about being raped so they can access an abortion after consensual sex.

The anti-abortion movement opposed rape and incest exceptions throughout the 1970s, a time during which Congress passed the Hyde Amendment, a rule that denies the use of federal spending on most abortions. The amendment made exceptions for rape, incest or if the mother’s life is at risk, which the legislative counsel for the National Right to Life Committee at the time, Thea Rossi Barron, vehemently opposed. She called the exemptions in Hyde an example of “a rather blatant carrying out of a loophole to allow abortion on demand.” Even President Jimmy Carter (D) told a reporter he believed the exceptions gave “too much opportunity for fraud and would encourage women to lie.”

Around this time, 25% of Republicans said abortion should be illegal in all situations, according to national Gallup trend data.

House Judiciary Committee Chairman Henry J. Hyde (R-Ill.), who created the Hyde Amendment barring federal funds from most abortions.
House Judiciary Committee Chairman Henry J. Hyde (R-Ill.), who created the Hyde Amendment barring federal funds from most abortions.
Scott J. Ferrell via Getty Images

But the tide changed starting in the 1980s. No-exception abortion bans became too controversial, and for many Republicans, it was simply safer to include them in anti-abortion measures. President Ronald Reagan (R), a vocal abortion opponent, supported rape and incest exemptions in abortion bans. Even the National Right to Life Committee created a proposal banning most abortions in 1990, but included exceptions for rape and incest.

Embracing these exceptions became a “rite of passage” for future GOP heavyweights, professors Michele Goodwin and Mary Ziegler wrote in a 2021 article in The Atlantic. George H. W. Bush, George W. Bush, Mitt Romney and, later, Donald Trump favored such exceptions despite being vocal anti-abortion advocates.

“The history starts out with anti-abortion folks saying that this rape and incest exception thing is bogus because no one gets pregnant as a result of rape, and most of the people who say they’re pregnant from rape are liars,” Ziegler, a law professor at Florida State University and a visiting professor of Constitutional Law at Harvard Law School, told HuffPost. “Then that reasoning kind of goes away ... because Republicans and anti-abortion groups realize it’s just a terrible strategic idea to say this.”

It may seem like Republicans view rape and incest exceptions differently but, Ziegler notes, they’ve always felt this way. “It’s just now they feel it’s politically acceptable to talk this way about people who are wealthy and middle-class, and not just people who don’t have resources.”

Saying The Quiet Part Loud

There’s no single reason the Republican Party decided to throw the rape and incest exception overboard.

For one, it always lingered inside the GOP. Every Republican Party platform since the 2004 election has called for a ban on abortion with no mention of exceptions, even though its candidates — from George W. Bush to Donald Trump — have supported rape and incest exceptions. No exceptions in bans was always a part of party doctrine — if not a contested one — but still recognized as bad politics.

Aside from Trump’s general coarsening of the political debate and green light for extreme positions, the shift could be the result of the new conservative majority on the Supreme Court. Or it could be the 2018 Mississippi abortion ban that was debated in front of the Supreme Court last fall and is expected to overturn or gut Roe entirely. Perhaps some people think the game is already won, and so there’s no need for strategic niceties.

Ziegler believes it’s a mix of all of the above. The conservative majority on the Supreme Court has allowed Republican legislators to pass these laws without fear of losing high-stakes and costly legal challenges, and the Trump administration centered social conservatives as the new Republican base.

“The GOP has become more beholden to people who are opposed to abortion and to white evangelicals, in particular,” she said. “The received wisdom used to be that the Republican Party didn’t really do anything for people who were social conservatives because the backbone of the party was fiscal conservatives and people who wanted low taxes. In the Trump era that’s no longer true. Suburban voters come and go from the GOP and social conservatives are much more central.”

President Donald Trump speaks live via video link to "March for Life," an annual anti-abortion rally, on Jan. 19, 2018, from the White House in Washington, D.C.
President Donald Trump speaks live via video link to "March for Life," an annual anti-abortion rally, on Jan. 19, 2018, from the White House in Washington, D.C.

National Republican support for abortion bans with no rape or incest exceptions is the highest it’s ever been: 31%, according to Gallup trend data. And extreme abortion bans bubble up from heavily gerrymandered districts in red states, said Christine Matthews, a veteran pollster and president of public opinion firm Bellwether Research. More and more dominantly Republican districts in places like Texas and Tennessee are being decided in the primaries, not in the general election.

“One thing that is new is the extent of less competitive districts and more districts that are definitely red so then the legislature’s interest only becomes about winning their primary,” said Matthews. “The voters who are most vocal, most activated, most likely to show up and most likely to put pressure on a legislator is the pro-life network.”

In Texas, one of the main GOP sponsors of the infamous Texas abortion ban is currently in a primary runoff for not being conservative enough. Rep. Stephanie Klick, from Texas’ 91st District, is facing off with a Republican primary challenger who criticized Klick for being too soft on anti-transgender legislation and signaled his support for the death penalty for women who get abortions.

“They don’t want anyone to get to the right of them on abortion,” said Matthews.

John Seago agreed. The legislative director at Texas Right to Life, a nonprofit organization that opposes abortion, told HuffPost that since 2013 Texas Republicans who are more moderate on abortion tend to get voted out.

“We see that time and time again ... more moderate Republicans that try to talk about these issues or try to nuance — they’re defeated,” said Seago. “And they’re replaced with Republicans who are very clear on this issue. The very reason they use the title pro-life, that they put that label on themselves, is because they understand the principles and they understand that it’s a big issue not to compromise on.”

And rape and incest exceptions are two big compromises for the anti-abortion movement, Seago said. “To support exceptions is to violate the core principles of why these voters are pro-life in the first place.”

A Troubling Dismissal Of Sexual Violence

The widespread but unfounded claims that rape exceptions could be abused or used as loopholes also reveals some conservatives’ true feelings about sexual violence. That was on full display during the Florida Senate debate over an amendment to include exceptions for victims of rape, incest and human trafficking.

“I fear for the men who are going to be accused of a rape so that the woman could have an abortion because that’s her only way out,” state Sen. Kelli Stargel (R), the main Senate sponsor of the 15-week ban, said during floor debate last month. “A woman is going to say she was raped so she could have the abortion.”

State Sen. Lauren Book (D), who shared her own story of being drugged and raped by several men as a child, responded to Stargel’s statement with an emotional plea to her Republican colleagues. “I am begging you. For little Lauren, for me, for the 42 million survivors of sexual assault in this country, for the 20 children who have been sexually abused since we’ve been sitting here, since we started this debate,” said Book, asking her Republican colleagues to vote yes to an amendment to include exceptions. “This is about young girls who need a little bit more time and a little bit more grace to heal physically and emotionally to make this decision.”

Immediately after Book’s gut-wrenching remarks, the senate voted the amendment down. Book walked off the floor in tears.

“A woman is going to say she was raped so she could have the abortion.”

- State Sen. Kelli Stargel (R), sponsor of Florida's 15-week abortion ban

“What’s really frustrating and upsetting about these bills is that conservatives are taking textbook intimate partner violence — abuser tactics — and turning them into laws. Like forcing you to stay in a situation that is not safe or healthy for you,” said Renee Bracey Sherman, founder and executive director of abortion rights organization We Testify.

“That is terrifying because if we’re doing it with abortion — forcing you to continue a pregnancy and continue a financial and legal relationship with someone you do not want to be in a financial and legal relationship with — what else can they do that on? Can we do that with marriages? Can we do that with child custody?” Bracey Sherman added.

Elizabeth Nash, the interim associate director of state issues at the Guttmacher Institute, is similarly deeply concerned about the trajectory of the country. “I just keep coming back to, ‘What does it mean for a survivor to recover, and what do they need?’ And abortion bans are just not it.”

And when the rhetoric becomes real laws, it can profoundly damage lives.

If it wasn’t for Cazembe Murphy Jackson’s abortion, he may not be alive today. Jackson, a transgender man, was raped during his junior year of college at a university in Texas and became pregnant as a result. He was able to get an abortion about eight weeks later at a Planned Parenthood, and a nurse there scheduled an appointment for him at a local rape crisis center.

“My abortion saved my life,” Jackson said. “I definitely was struggling with suicidal ideation and making plans for how I was going to end my life. I told that to the lady at Planned Parenthood and she was like, ‘We need to get you some help.’”

“Had I been forced to carry an unwanted pregnancy to term, I just don’t know what my life would have looked like and what that kid’s life would have looked like. When people don’t want to be parents, it doesn’t turn out good for anyone,” he added.

Nash, along with several other pro-abortion rights groups, cautioned HuffPost about focusing on exceptions in abortion restrictions because, they said, it takes away from the larger picture. “This debate is longstanding,” said Nash. “The issue is that sets up a framework where some abortions are then considered more appropriate or good and other abortions are considered, in a sense, bad.”

But the way in which Republican lawmakers often speak about rape and incest exceptions reveals how a large majority of the party really feels about women and sexual assault. And it’s worth pointing out.

“I believe there are people in the Republican Party who care about sexual assault victims. But this kind of argument certainly doesn’t make you think they do,” said Ziegler. “It’s hard to believe them when they say ‘we believe women’ when they don’t believe women in this context.”

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