More Republicans push for abortion bans without rape, incest exceptions

Republicans hoped the public backlash to the Supreme Court’s June decision overturning the constitutional right to abortion would be a temporary blip in a campaign season otherwise focused on the nation’s gas and grocery prices.

Instead, the abortion debate has morphed and grown over the past three weeks onto terrain least favorable to the GOP — the question of whether abortion should legal for victims of rape and incest or mothers whose life is threatened by pregnancy.

Ohio Gov. Mike DeWine, R, who is facing reelection, has so far declined to comment on the law he signed that prompted a 10-year-old rape victim this month to travel to neighboring Indiana for the procedure. In Texas, attorney general Ken Paxton filed a lawsuit Thursday to block Biden administration guidance that requires doctors to perform abortions when they believe the procedure is needed to stabilize a mother in an “emergency medical condition.”

And in Washington, Democrats forced Republicans to oppose bills in the House and Senate that would ensure women could travel across state lines for the procedure, after a June poll found that 77% of Americans opposed laws that would prevent such travel.

The controversies over maternal health and the consequences of rape and incest have so far validated the expectations of Democratic midterm strategists that a court decision to overturn Roe v. Wade, which guaranteed a national right to abortion for 49 years, would launch months of public debates, often state-by-state, over the least popular Republican efforts to limit abortion in all cases. They hope concern over the legal changes will drive more Democratic voters to the polls and give swing voters pause before voting for Republicans.

“It feels like they are very fine risking peoples lives to make their political points. That is something that voters see through,” said Christina Reynolds, a vice president of Emily’s List, a group that supports candidates in favor of abortion rights. “We think that it can have a real impact in pretty much every race we are in.”

Though the nation remains divided on abortion policy — with most voters agreeing to some limitations while also opposing outright bans — there is overwhelming support for allowing abortions in cases of rape or threats to the life of the mother. A March Pew Research Center poll found that 73% of Americans, including 62% of likely Republican voters, supported legal abortion when the mother’s life was threatened. According to the poll, 69% of Americans, including 56% of likely Republican voters, said abortion should be legal when the pregnancy resulted from rape.

Among many leading antiabortion groups, by contrast, there’s general agreement around banning abortion in the cases of rape and incest, but including exceptions for threats to the life of the mother. Some major groups, however, say they have supported legislation in states that choose to allow abortions in the case of rape and incest to garner enough political favor to pass new restrictions.

Abortion restrictions have gone into effect in roughly a dozen states since the court ruling, all of which include an exception for life of the mother. Most do not include an exception for rape or incest, with the exception of South Carolina — which includes exemptions for both — and Mississippi’s trigger law that has an exception for rape, according to The Guttmacher Institute, a research group that supports abortion rights.

“We understand that issues like rape and incest are difficult topics to tackle; nevertheless, it is our view that the value of human life is not determined by the circumstances of one’s conception or birth,” nearly 20 antiabortion groups — such as Students for Life of America and Family Research Council — wrote in a 2019 letter to Ronna Romney McDaniel, chair of the Republican National Committee.

Rape and incest exceptions are often debated on the floor of state legislatures before lawmakers vote on a bill. But they often don’t make it into the laws, according to Elizabeth Nash, a principal policy associate at Guttmacher.

Shortly before the Supreme Court’s ruling, the National Right to Life Committee released a model law restricting abortions for Republican state lawmakers to consider.

“We recommend prohibiting abortion except to prevent the death of the pregnant woman, which has been the accepted policy choice by the pro-life movement since 1973 and for many years before,” states an introduction about the model law written by James Bopp Jr., NRLC’s general counsel, and his associates. The text of the model law notes that “it may be necessary in certain states to have additional exceptions,” and proposes suggestions for language around exceptions for rape and incest.

On Thursday, Politico published a story that quoted Bopp as saying that the 10-year-old rape victim in Ohio should have carried her pregnancy to term and would be required to do so under the group’s model law. In an interview with The Washington Post, however, he repeatedly insisted that he did not oppose states including rape and incest provisions.

“If the legislature decides that they need or should have something in addition, such as rape or incest, that is a pro-life position, and we’ve proposed language that we think they should consider,” Bopp said.

Asked whether the 10-year-old should have carried the pregnancy to term, he said, “I think that abortion should be legal if it jeopardizes a life, and in cases with appropriate safeguards, rape and incest, and then it’s her decision in those circumstances.”

The 10-year-old girl in question traveled in June to Indiana for an abortion after her pregnancy had lasted more than six weeks, which is about the time when fetal cardiac activity can usually be detected. The Ohio law bans the procedure after that moment, including in cases of rape and incest. A 27-year-old man was arrested Tuesday in Ohio after he allegedly confessed to authorities that he raped the girl.

Many Republicans and conservatives, after initially raising questions about whether the case was real, have since attacked the Indiana doctor in the case, with Ohio Attorney General Todd Rokita, R, saying he was looking at prosecuting the doctor for failing to report the case. However, records show the OB/GYN, Caitlin Bernard, had reported the case as required under Indiana law.

“There will be more egregious stories,” said David Axelrod, a former strategist for former president Barack Obama. “It’s inevitable that the worst manifestations of these extreme laws are going to start surfacing in many states and each time they do it’s another reminder of how far the Republicans have gone.”

Yet, there’s been tension among Democrats on the path forward to shoring up abortion access. For weeks, some in the party have urged the Biden administration to declare a public health emergency and to push the boundaries of what’s allowed to fight for abortion rights.

In response to the outpouring of criticism, White House communications director Kate Bedingfield told The Post that “Joe Biden’s goal in responding to Dobbs is not to satisfy some activists who have been consistently out of step with the mainstream of the Democratic Party.”

On Friday, the Congressional Progressive Caucus released a list of new executive actions, which includes allowing undocumented people and those assisting them to travel without risk of detention and require hospitals to perform abortions or risk losing their Medicare funding — policies that could be divisive.

J.D. Vance, the Republican nominee for Senate in Ohio, has been facing $1.4 million in television ads from a Democratic-leaning group, FF Pac. They include a spot that calls Vance “one of the most extreme antiabortion voices in America” because he said “two wrongs don’t make a right” when asked to explain his opposition to abortion in cases of rape and incest.

“It’s not whether a woman should be forced to bring a child to term, it’s whether a child should be allowed to live, even though the circumstances of that child’s birth are somehow inconvenient or a problem to the society,” Vance told Spectrum News in Columbus on Wednesday.

A spokesperson for the Vance campaign said Friday that the candidate supports an exception only in instances where the mother’s life is in danger.

Republicans remain confident that abortion will not upend their hopes for a takeover in the House and Senate this fall. They have pointed in recent weeks to multiple polls that show concerns about the economy and inflation at levels several times greater than abortion.

“While abortion is an issue people care about, the data makes clear that it is not among the top issues that will drive voting behavior in November,” a recent memo from the Republican State Leadership Committee advised candidates. “Instead, this election will remain about Biden’s failing economy.”

Sen. James Lankford, R-Okla., on Thursday accused Democrats of attempting to scare voters and arguing there was more to the debate than the rights of expectant mothers.

“The conversation today is not just about women. There are two people in this conversation — a child with ten fingers and ten toes and a beating heart and DNA that is uniquely different than mom’s DNA or the dad’s DNA,” he said in a statement on the Senate floor objecting to a Democratic bill to allow interstate travel for abortion. “They have a nervous system. They feel pain. This is a child in this conversation, as well.”

The debate in Texas has shifted to the difference between state law and federal rule. State statutes have an exception to abortion bans when a mother is “at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed.”

But Paxton filed a lawsuit against the Biden administration over newly released guidance stating that a federal emergency medical treatment law imposes a slightly different standard of allowing abortion when the “health” of the mother is “in serious jeopardy,” or faces “serious impairment or dysfunction of bodily functions or any bodily organ.”

“By requiring Medicare-participating hospitals, including hospitals operated by the State of Texas, to provide abortions when the life of the mother is not in danger, the Abortion Mandate directly infringes on Texas’s sovereign and quasi-sovereign authority,” Paxton wrote in his legal filing.

The Republican Party has a long history of resisting abortion bans without exceptions for rape, incest and the life of the mother. Every Republican candidate for president since Roe was decided in 1973, including former president Donald Trump, has supported the exceptions. Democrats have nonetheless attacked Republicans on the issue consistently, with Obama’s campaign in 2012 falsely accusing Republican nominee Mitt Romney in ads of opposing rape and incest exceptions.

But Republicans have grown more willing to talk about rape in the context of abortion since the high court’s June 24 ruling overturning Roe. At a House Judiciary Committee hearing this week, Rep. Matt Gaetz, R-Fla., went so far as to suggest that LGBT rights groups should focus less on protecting abortion access because lesbians are more likely to adopt children than to be victims of rape.

“It is astonishing to me that people who purport to advocate for gay Americans would say what we need is abortion on demand, because it is these very people who are engaging in adoption,” Gaetz said at the hearing.

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The Washington Post’s Colby Itkowitz and David Weigel contributed to this report.