GOP leaders in some states want to add abortion ban exceptions | Analysis
But abortion rights advocates say few people qualify for rape and incest exemptions
Dr. Sharee Livingston, chair of the obstetrics and gynecology department at UPMC in Lititz, Lancaster County, speaks at a rally for abortion rights Monday, 10/24/2022, at the Pennsylvania Capitol.
By Stephen Elliott
NASHVILLE, Tenn. — With Tennessee’s so-called trigger law already on the books, the state enacted its abortion ban almost immediately after the U.S. Supreme Court struck down Roe v. Wade in June.
Yet even as anti-abortion legislators and advocates celebrated, they considered how much further they could go — perhaps by barring Tennesseans from seeking abortions in other states, or by restricting contraception.
But now, some GOP legislative leaders have returned to Nashville for the new session with a different attitude. Swayed by input from constituents and health care providers — and perhaps by a November poll showing that75% of Tennesseans believe abortion should be legal in cases of rape and incest — some key Republicans say they want to add exceptions to the law.
“First off, I’m anti-abortion, very strongly, but I’m more pro-life,” said Republican state Sen. Ferrell Haile, a pharmacist who is speaker pro tempore. “There’s a high percentage of folks that think there need to be some tweaks made to this.”
House Speaker Cameron Sexton said an exception for the life of the patient would need “to be very clear.” Under the current law, which makes all abortions a felony, abortion providers must offer an “affirmative defense” if they are charged, admitting they were in violation of the law but had to act to save the patient’s life. Health care providers have protested that they should not be forced to prove their innocence for actions taken during life-or-death situations.
“I think there needs to be a discussion about rape and incest as well,” Sexton said. “Whether or not we can get that, I’m not sure, but there needs to be a discussion.”
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The Tennessee Senate leader and governor support the law as written. Tennessee legislative leaders have not released any proposed exception language, but states with rape and incest exceptions typically require patients to prove that an assault occurred. In Utah, for example, a woman who claims her pregnancy was the result of rape or incest must file a police report, though most sexual assaults nationwide go unreported. Mississippi and Idaho also require law enforcement involvement.
Some Republicans in other states with strict abortion bans, including Texas and Wisconsin, also might be interested in adding rape and incest exceptions. But abortion rights supporters point out that few if any patients have qualified for abortions in the states that do have exceptions.
An August poll by the University of Texas showed that 78% of Texans support an exception for incest and 80% favor an exception for rape. GOP House Speaker Dade Phelan said at the Texas Tribune Festival in September that he has heard from House members who are concerned about the absence of exceptions.
At the same event, one of the state’s longest-serving Republican state senators said he would support a rape exception.
“If I get a chance to vote for an exception to rape, I will vote yes,” Texas state Sen. Robert Nichols said on a panel of GOP lawmakers several weeks before he was up for reelection. “I think instead of us telling women what to do, we should show our support for women of this state.” The Texas Right to Life organization suspended its support for Nichols in response to his comments.
Republican Lt. Gov. Dan Patrick, who leads the state Senate, has signaled he might be willing to take up the exceptions question.
“I am not saying no, but we’d have to see a real groundswell of Republicans in the House and Senate to say yes,” Patrick told Spectrum News’ Capital Tonight in a December interview.
Amy O’Donnell, communications director for Texas Alliance for Life, said her organization is “definitely against a rape-incest exception in our abortion laws,” though the group supports exceptions for medical emergencies. O’Donnell added, however, that her organization has not withdrawn support from anti-abortion rights lawmakers who support rape and incest exceptions.
In Wisconsin, some GOP leaders also are interested in adding exceptions to the state’s strict abortion ban, a law dating to 1849 that was reactivated by the U.S. Supreme Court’s decision to overturn Roe. But the situation in Wisconsin is complicated because while Republicans control the legislature, Gov. Tony Evers is a Democrat.
In December, Republican House Speaker Robin Vos told the Associated Press that he favored granting clear exceptions for rape and incest and protecting the life and health of the patient.
“I’m going to work hard to make it happen,” Vos said. “I think it’s the right public policy, and I think it’s where the public is.”
In a September poll, only 5% of likely Wisconsin voters said they favored a law prohibiting all abortions without exception.
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But Evers, who supports abortion rights and has sued to overturn the 1849 law, has pledged to veto any piecemeal legislation that leaves the ban in place. And Republican Senate Majority Leader Devin LeMahieu told the Associated Press he doesn’t want the Senate to consider an exceptions bill because he knows Evers will veto it.
“I’m not sure why I would make my caucus go through such a difficult vote if the governor is going to veto it,” LeMahieu said.
Gracie Skogman, legislative director for Wisconsin Right to Life, agreed that given the promise of a veto, an exceptions debate in the Wisconsin legislature could “put pro-life members in the position of having to take a difficult vote.”
Still, she said, her organization supports medical emergency exceptions and “we do think we should have further conversations about potentially strengthening that language.”
Wisconsin Right to Life opposes any rape or incest exceptions, Skogman said, but maintains its support for abortion opponents who support those exceptions.
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