In states that allow abortion for rape and incest, finding a doctor may prove impossible

Giovannina Anthony has read the law and consulted with an attorney but is still unsure what she’ll do if someone who says they’re pregnant as a result of rape or incest comes to her seeking an abortion.

One of two providers in Wyoming’s only abortion clinic, Anthony is grappling with how she might be able to help her patients now that Roe v. Wade has been overturned and the state’s vaguely written abortion ban — which doesn’t specify how a doctor is supposed to determine the validity of a patient’s claims — will soon take effect. Running afoul of the law could mean a 14-year prison term.

“I don't want to go to jail. I don’t want to break the law,” Anthony told POLITICO before the court’s decision. “But I also can’t imagine a patient who has been raped or assaulted and is pregnant and calling for help and, as a gynecologist, to say to her, ‘Sorry, you’re on your own.’ It’s just horrific.”

The Supreme Court’s June 24 decision undoing 50 years of precedent and leaving abortion rights up to the states could soon turn Anthony’s hypothetical dilemma into a reality, underscoring how political debates taking place in Congress and statehouses across the country are removed from the on-the-ground decisions providers face.

Clinics and abortion funds in Idaho, Mississippi, North Dakota and Wyoming — four states that have rape or incest exceptions in their abortion bans — told POLITICO that while the law may allow people to terminate their pregnancy in those instances, it will likely be easier to get patients across state lines for an abortion than try to clear the hurdles associated with obtaining one legally in their home state.

“In theory, [exemptions] sound great, but in practicality, it seems impossible,” said Tammi Kromenaker, director of the Red River Women’s Clinic in Fargo, N.D. “There’s no way my doctor would say yes to that. She would just say, ‘Let’s throw all the money and resources at this person. Let’s get them somewhere else where it’s legal.’”

Clinics planning to move their operations across state lines might leave patients in their states with no providers willing to offer abortions in cases of rape and incest. Willing providers, like Anthony, may be dissuaded for fear of prosecution. And patients might not want to go through with the abortion if their state requires them or their provider to report the rape or incest to police, as is the case in Idaho, Utah and Mississippi.

“There’s still so much fear and stigma and shame with that,” Kromenaker said. “Sometimes patients say, ‘I thought if I told you, you’d make me report it to the police, and I don’t want to do that. It’s somebody I know.’”

A survey released by the Pew Research Center in May found that 56 percent of Republicans and 83 percent of Democrats believe abortion should be legal if the pregnancy results from rape. But abortion rights advocates warn that so few people will be able to take advantage of the exceptions that it will be as if they didn’t exist.

“Exemptions are just a way for Republicans to say, ‘Now, now, don’t worry, we’re doing this ban, but when you need your “good abortion,” access will be there for you,’ but it’s all bullshit. It won’t be there for you,” said Laurie Bertram Roberts, executive director of the Yellowhammer Fund in Alabama and co-director of the Mississippi Reproductive Freedom Fund. “If you think you’re one of the ‘good people’ who would only need an abortion in a ‘good instance’ — baby, they came for you already, too. They’re not going to let you have an abortion, either.”

Some Republicans, however, argue exceptions remain a lifeline for people in crisis.

Arkansas Gov. Asa Hutchinson, a Republican who is term-limited and in his final year, told CNN last month that he supports exemptions in case of rape or incest — even though the abortion ban he signed into law in 2019 includes no such exceptions. At the time, he said he hoped the issue would be “revisited,” though on Friday he said he wouldn’t ask lawmakers to take exemptions up in a special session.

“While it’s still life in the womb, life of the unborn, the conception was under criminal circumstances, either incest or rape,” he said. “And so, those are two exceptions I have recognized I believe are very appropriate.”

While exceptions might have only a limited impact, they will be crucial for the people able to obtain them, though “statistically speaking, that’s going to be very, very few folks,” said Iris Alatorre, program manager at the Northwest Abortion Access Fund, which covers Idaho.

Rape and incest exceptions are increasingly dividing lawmakers. Several Republican Senate candidates — including Herschel Walker in Georgia and J.D. Vance in Ohio — have argued against rape and incest exceptions in recent weeks, even as many of their would-be colleagues continue to support such carve-outs. Republican gubernatorial candidates are split on the issue.

And Louisiana Gov. John Bel Edwards, a Democrat who supports abortion restrictions, on Tuesday signed a measure passed by the state’s Republican-controlled legislature that does not allow for abortions in cases of rape or incest — despite his personal support for such exemptions.

Anti-abortion groups are similarly divided over how to approach rape and incest exceptions. While Susan B. Anthony Pro-Life America believes “the value of human lives isn’t determined by the circumstances of somebody’s conception,” the organization isn’t taking a position on whether state lawmakers should or should not include rape and incest exceptions in their abortion bans, believing it’s an issue that should be left up to each state to decide, said Sue Liebel, the group’s state policy director.

Students for Life of America, meanwhile, is urging lawmakers to oppose such exceptions.

“We reject shaming children for things beyond their control,” the group’s spokesperson Kristi Hamrick said. “Clearly, crimes must be fully prosecuted, and women helped. But we mourn as well for the preborn who also suffer.”

The Hyde Amendment — which bars federal funding from paying for abortions except in cases of rape or incest or to save the life of the pregnant person — offers a glimpse at just how difficult using exceptions may be post-Roe. According to the Guttmacher Institute, an abortion rights think tank, the federal government paid for 160 abortions for Medicaid recipients in 2015, the last year for which data is available; meanwhile, 18 states used state Medicaid funds to pay for more than 157,000 abortions.

“When we think about how the Medicaid exceptions have not truly been implemented, that does not seem to lend itself to thinking that the exceptions in the trigger bans or the pre-Roe bans would be implemented in any other way,” said Elizabeth Nash, a state policy expert with the Guttmacher Institute. “They’re designed to be extraordinarily narrow and difficult to comply with because abortion opponents see exceptions as loopholes.”

At Red River Women’s Clinic in North Dakota, about one patient a week will disclose that she is seeking an abortion because she was raped, and the clinic will submit a claim to the state’s Medicaid program seeking reimbursement about once a month, Kromenaker said.

But it isn’t enough to remain financially viable.

“In order to be able to keep our doors open — and I’m not saying there’s not a lot of people assaulted — for the people who are assaulted, get pregnant, want to disclose it and want to have an abortion, it would be impossible for us to maintain a staff, maintain a facility and all of that,” Kromenaker said

Her clinic instead plans to move five minutes across the river to Moorhead, Minn., where abortion remains legal, and Kromenaker is hopeful patients will follow.

For those who can’t or don’t want to travel out of state, abortion rights advocates anticipate some OB-GYNs with private practices, like Anthony, might be willing to prescribe abortion pills to people who are pregnant as the result of rape or incest.

Abortion rights proponents also worry people seeking an abortion under a life or health exception may face similar barriers. The state abortion bans vary — some prohibit abortions except “to preserve the life” of the pregnant person while others also contain exceptions “to prevent serious risk of substantial and irreversible impairment of a major bodily function” — but none specify exactly how much in jeopardy someone’s health or life must be to qualify.

“It feels like it’s this conversation that's ongoing in this legal, abstract world,” Nash said.

Liebel said she is urging state lawmakers to revise and clarify their abortion bans when they next meet.

“I do know that I’m advising states that this time around, if you wipe the slate clean and you redo — and even if you have exceptions or other sorts of things — you’ll have to define that better,” Liebel said. “If it’s still too vague, it’ll end up in court.”