Whatever Happened to the Exceptions for Rape and Incest?

New abortion bans are stricter than ever before.

Illustration of a woman's silhouette
Henrik Sorensen / Getty

About the authors: Michele Goodwin is a chancellor's law professor at the University of California, Irvine. She is the author of Policing The Womb: Invisible Women and the Criminalization of Motherhood. Mary Ziegler is a professor of law at the University of California, Davis. She is the author of Abortion and the Law in America: Roe v. Wade to the Present and Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.

Amid all the attention paid to the legal drama surrounding both Mississippi’s and Texas’s contested abortion laws, one striking detail seems to have escaped much notice: Neither state makes an exception for rape or incest.

This is a major departure, a sign of how extreme America’s abortion politics have become. For decades, exceptions to abortion bans for rape and incest were a rare source of consensus.

And they still are, among the public: Time and again, Gallup has found that nearly 80 percent of Americans support such exceptions. This is true even in red states such as Alabama and Texas. Yet these exceptions are now vanishing.

The reason is power. Many anti-abortion activists never believed that a rape or incest exception could be squared with their deeply held belief that a fetus is a person. Today the anti-abortion movement is ready to ask for what it wants, and the GOP—and its allies on the Supreme Court—is willing to give it to them. What the movement wants, now as in the past, is the recognition of fetal personhood. And historically, recognizing personhood has often meant criminalizing the behavior of pregnant women, even when those women are victims of crimes themselves.

The story of rape and incest exceptions began in the late 1950s, when the elite American Law Institute, a nonpartisan group of lawyers, scholars, and judges that proposed legal reforms, considered reforming criminal abortion laws. At the time, most states criminalized all abortions unless continuing a pregnancy would threaten a person’s life. The ALI proposed a broader group of exceptions: for threats to patient health, certain fetal abnormalities, and rape and incest.

The ALI could easily justify most of these exceptions as codifications of best medical practice, but rape and incest were different. There, the ALI suggested, the concern was not physical health but the “anxiety and shame” of people who were pregnant through no will of their own. Allowing abortions for people who had had consensual sex, ALI’s leaders suggested, would be “an invitation to promiscuity.” But the ALI’s framers had no such concerns about victims of incest and sexual assault.

In the 1960s, states began enacting the ALI provisions. Rape and incest exceptions were broadly supported, but the early anti-abortion movement opposed them. Some critics of the exceptions insisted that “real rape” almost never resulted in pregnancy—and that women would lie to take advantage of an exception. Mostly, the movement rejected the exception because it conflicted with the idea that a fetus was a rights-holding person.

Roe v. Wade, which struck down abortion restrictions as unconstitutional, made the ALI provisions obsolete. But in the decades since, as right-to-lifers pushed a never-ending array of incremental restrictions on the procedure and chipped away at Roe, rape and incest exceptions remained a touchstone of the abortion debate. Supporters of abortion rights fought to include rape and incest exceptions in the Hyde Amendment, which bans Medicaid funding for abortion.

Embracing the exceptions became a rite of passage for the GOP’s standard-bearers. George H. W. Bush, George W. Bush, Mitt Romney, and Donald Trump declared their support for such exceptions. Their reasons were not hard to see: The exception was widely supported, even among Republicans in deeply conservative states.

The most fervent anti-abortion activists felt differently. They never liked the exceptions, but they came to tolerate them. That was because until recent years, the anti-abortion movement had a plan: to win over as many Americans as possible, to make moderate Republicans comfortable working with them, and to maximize the chances of success before the Supreme Court. Fighting against rape and incest exceptions was not an immediate priority.

Moreover, these exceptions were rarely used. Sexual assault and incest were (and are) massively underreported; many survivors who did come forward were not believed. Sexual violence was common, but at least officially, few abortions were justified on the basis of rape or incest. For anti-abortion advocates, convincing popular majorities took precedence over writing laws that would prevent abortions in all circumstances.

Not anymore. Both the anti-abortion movement and the GOP have evolved, as has their relationship to each other. Some of this is about the Supreme Court. With six conservatives—including three Trump nominees—the Court seems poised to roll back abortion rights. Few anti-abortion activists are worried about building broad public support when they have a Court that looks willing to give them everything.

Additionally, changes to campaign-finance rules have empowered donors, nonprofits, and super PACs that are further to the right. Noncompetitive districts and states have eliminated concerns for some Republicans about alienating voters. The new playbook, even before Trump took office, has focused on turning out the base, not building widespread appeal. As a result, there is little daylight between the GOP and the anti-abortion movement—including on the rape and incest exception.

The anti-abortion movement—and with it the GOP—can now focus on the recognition of fetal personhood. If the Supreme Court eventually recognizes fetal personhood under the Fourteenth Amendment, that would make abortion unconstitutional nationwide. This will have implications well beyond the law of abortion.

Thirty years ago, at the intersection of the failed War on Drugs and congressional attacks on welfare programs, rhetoric about the “crack mom” and “welfare queen” converged. These types of “bad moms” neglected their children while getting high on drugs and sapping state resources. This stereotype was trafficked for political expedience and “tough on drugs” law enforcement. The effects included poor Black women being shackled during labor and delivery; Black women being forcefully escorted from hospitals shortly after giving birth, taken away while still bleeding from birth without the aid of a sanitary napkin; and pregnant Black women being seized in a chokehold while almost full-term.

Anti-abortion groups also equated the bad behavior of pregnant patients with child abuse. In South Carolina, Black women who took drugs while pregnant were charged with “distribution to minors and child neglect.” At the time, the Supreme Court seemed unwilling to reverse Roe, much less recognize fetal rights. So groups such as Americans United for Life set out to make Roe an outlier by recognizing fetal personhood in inheritance law, property law, personal-injury law, and even homicide law. Treating pregnant patients as child abusers flowed from the logic of personhood.

Today, the past is prologue. Those claiming to defend fetal personhood have imposed criminal and civil punishments on pregnant people. They have arrested pregnant women who refuse Cesarean sections or fall down steps; denied chemotherapy to a pregnant cancer patient; and involuntarily committed pregnant women for threatening the health of a fetus during pregnancy. In Tennessee, prosecutors have offered plea deals to women who agreed to sterilization, until the practice was banned in 2015. Pregnant women have faced serious criminal charges for experiencing stillbirth, suffering a miscarriage that prosecutors attributed (with no evidence) to drug use, getting shot in the stomach during a physical altercation, and attempting suicide.

In a post-Roe America, more punishments like this would not be surprising in conservative states. States that will criminalize abortion after the Supreme Court reverses Roe have vowed not to punish pregnant people.

Nevertheless, the reasons for this pledge are clear: Most Americans oppose the idea of criminally punishing pregnant people, and the anti-abortion movement has treaded carefully so as not to lose support. But as the elimination of rape and incest exceptions suggests, the thought of offending popular majorities may not matter for long.