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Post-Roe, exceptions to state abortion bans won’t be easy to acquire

“I’m picturing doctors weighing pros and cons, and waiting, and not knowing what they can do, and people dying,” one expert said. 
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With Roe v. Wade overturned, exceptions to abortion bans — such as in the case of rape or incest, or for a pregnant person’s safety — are expected to be the only avenue to getting abortions in many states.

But meeting the qualifications for those asterisks to the bans can be complex and traumatizing, experts say. 

For starters, exceptions for rape and incest are uncommon. The Guttmacher Institute, a research organization that supports reproductive rights, anticipates 26 states certain or likely to ban abortion now that there are no federal protections. 

Among those 26 states, there are about 41 abortion bans total, with some states having more than one ban, it said. Just 10 of the 41 bans have exceptions for rape and incest.

In the states that do have rape and incest exceptions, requirements vary. Many, such as Utah, require victims of sexual assault to file a police report. 

Given that more than 2 out of 3 sexual assaults go unreported, according to the Rape, Abuse and Incest National Network, these laws are problematic, said Grace Howard, an assistant professor of justice studies at San Jose State University who studies the criminalization of pregnancy.

Howard, who is a sexual violence survivor, said reasons for not disclosing such assaults range from self-blame to worrying about not being believed — a fear that often becomes reality when people speak up. 

“It’s kind of this second round of being traumatized,” Howard said. “I fear that this will push people away from exercising that legal loophole that would allow a rape victim to receive this form of care.”

And traveling to states that are supportive of abortion — California and New York are two — can be burdensome, financially and otherwise. 

For those seeking incest exceptions, there are additional obstacles. They are often minors, some of whose abusers are family members, and most states require parental involvement in a minor’s decision to get an abortion. 

There are discrepancies among the requirements for these laws, too. In Alabama, a parent must provide consent for a minor to have an abortion, while in some other states, a parent must only be notified of the abortion. 

In some states, minors have the option to go before a judge to get a “judicial bypass,” in which they request permission to prove that they are capable of making the decision to get an abortion without a parent’s involvement. But the process comes with its own challenges.

“That means that the child that has been subjected to something so incredibly horrific now must find a way to make herself to a courthouse,” said Michele Bratcher Goodwin, a chancellor’s professor at the University of California, Irvine, and author of “Policing the Womb: Invisible Women and the Criminalization of Motherhood.”

With more states banning abortion, minors will face multiple obstacles if they are attempting to get abortions without parental involvement, she added.

“It’s not clear whether a judge in a state where judicial bypasses are on the books would grant one in a state where she is not a resident,” Goodwin said. 

Broad support for abortion exceptions

Despite the laws becoming more restrictive, an overwhelming majority of people in the United States support exceptions to abortion bans.

In an ABC News/Washington Post poll published in May, 82% said abortion should be legal when the woman’s physical health is endangered, 79% said it should be when the pregnancy was caused by rape or incest, and 67% said it should be when there’s evidence of serious birth defects.

Like the exception in the case of rape and incest, proving that the health of a mother is in danger can be tricky. This too varies state by state, with some focusing on protecting the life of a pregnant person. Other exceptions broaden it out to health as a whole and whether continuing a pregnancy could jeopardize, for example, an organ function. 

Arizona’s 15-week abortion ban provides exceptions for emergencies when continuing the pregnancy will “create serious risk of substantial and irreversible impairment of a major bodily function” for the mother. Oklahoma’s recent ban, the most restrictive in the country, is focused on life-threatening situations. 

Mental health is almost never seen as enough of a reason to justify an abortion under the laws, said Carol Sanger, professor of law at Columbia University and the author of “About Abortion: Terminating Pregnancy in 21st-Century America.”

“Most of the new statutes say that her death has to be a physical death, meaning that she has to be physically ill, not that she’s going to kill herself,” she said. 

Even dire situations may give some abortion providers pause in their consideration of the health exception to the ban. With threats of being put in jail for not following the law to the letter or threats that their clinic may get shut down, steering clear of exceptions may feel preferable, even if it leads to dangerous outcomes, Howard said. 

“These health exceptions really scare the crap out of me,” she said. “I’m picturing doctors weighing pros and cons, and waiting, and not knowing what they can do, and people dying.”

Serious fetal anomalies used to provide exceptions to abortion bans, but no longer offer many, the experts said. 

The thinking, Sanger said, is, “You don’t want ‘perfect’ babies killed and you don’t want babies who parents think would be very difficult to raise or who will die pretty much after being born killed. So it’s very religiously based.”

The exceptions that do exist are not that accessible to those they are supposed to serve, Howard said.

“They’re just not functional,” she said.