This week, North Dakota’s governor signed into law one of the country’s most extreme abortion bans. It outlaws almost all abortions—and only allows people to get abortions in cases of rape or incest if they undergo the procedure within the first six weeks of pregnancy.
The ban is, for now, an act of political theater. No one is going to an abortion clinic in North Dakota, because the last clinic in the state moved to Minnesota months ago. But the exceptions in the ban are also likely meaningless. Many people do not even realize that they are pregnant at six weeks, and many sexual assault survivors can take far longer to come forward, if they ever do.
The North Dakota exceptions reflect the reality of abortion bans across the country: Their exceptions generally do not work, as experts have long told VICE News. Since the Roe v. Wade was overturned, pregnant people have shared story after story after story of how they struggled to obtain abortions even if they had been raped or were facing life-threatening medical problems.
But these exceptions endure, as Republicans scramble to figure out just how to outlaw as many abortions as possible so they can keep their diehard anti-abortion constituents happy—without getting voted out of office by everybody else.
“For the GOP, the dilemma is: Do you have exceptions so that you can message to voters that, ‘Hey, we’re not that bad and we’re not that far off from the mainstream’?” said Mary Ziegler, a University of California, Davis School of Law professor who studies the legal history of reproduction. “Or do you just do what the anti-abortion movement wants and hope that voters don’t punish you for it? Because at least that way the anti-abortion movement is happy.”
“I think Republicans are more afraid of losing base voters than they are of offending everybody else,” she added.
Nearly 60 percent of Americans think abortion should be legal all or most of the time, with 38 percent saying it should be legal at all times, according to an NBC News poll released this week. But even among the minority of Americans who believe abortion should be legal only sometimes or primarily illegal, more than 90 percent think there should be exceptions for rape, incest, and medical emergencies.
The anti-abortion movement, however, has long pushed for eliminating rape and incest exceptions. In those activists’ minds, a life is a life, regardless of how it began. And even though anti-abortion activists have lost every abortion-related ballot measure since Roe was overturned, they have not softened that stance.
Instead, as Republicans waver and fight over how to handle abortion, anti-abortion activists’ views have only hardened, Ziegler explained. “They’re not in a mood right now to compromise on any of this stuff,” she said.
That hardcore thinking tended to prevail before the overturning of Roe, when abortion bans and their impact were largely hypothetical. Of the 14 states that currently have abortion bans on the books, at least eight do not have exceptions for rape or incest. One state, Mississippi, permits abortions in cases of rape but not in cases of incest. That technicality doesn’t matter, however, because the last abortion clinic in Mississippi has been shut down. Last year, a teenage rape survivor from Mississippi had to travel to Illinois for an abortion even though she was legally entitled to an in-state procedure.
So far in 2023, 10 states have introduced legislation that would expand or add exceptions to their abortion bans, according to the Guttmacher Institute, which tracks abortion restrictions. Just one state, Idaho, has successfully passed that legislation. That law lets people get abortions in cases of rape or incest within the first trimester of pregnancy, as long as they have also reported the sexual assault to government officials. (Rape is notoriously underreported.) It also doesn’t take effect until July.
Every abortion ban lets pregnant people get abortions in cases of medical emergencies—but what, exactly, counts as an emergency can differ from state to state. These bans tend to use vague language that has left doctors baffled and, often, unable to help patients unless they are on the verge of death. (These bans technically prohibit people from providing abortions, not undergoing them.)
A study of 34 hospitals in Oklahoma, where abortion is banned without exceptions for rape or incest, found that 22 hospitals “could not provide any information on procedures, policies, or support provided to doctors who determine an abortion is necessary to save someone's life.” Four hospitals falsely claimed that abortions cannot be obtained in Oklahoma for any reason. And one hospital told the study’s researchers that staffers would use a pregnant person’s body as an “incubator” to carry a baby as long as possible.
Not a single hospital could clearly articulate their approach to abortion in a way that prioritized doctors’ medical judgment and patients’ wishes, the researchers found.
One Oklahoma woman with a cancerous pregnancy that would never result in a baby told NPR this week that doctors said she couldn’t get an abortion unless she became extremely sick.
“They said, ‘The best we can tell you to do is sit in the parking lot, and if anything else happens, we will be ready to help you. But we cannot touch you unless you are crashing in front of us or your blood pressure goes so high that you are fixing to have a heart attack,’” 25-year-old Jaci Statton told NPR.
Five women in Texas, all of whom were denied abortions, are now suing the state to clarify how and when people in medical emergencies can end their pregnancies. One of those women, Lauren Miller, told VICE News last year that, after she got pregnant with twins, she learned one of the fetuses had several severe abnormalities. She was forced to travel to Colorado for an abortion in order to protect her life and the other fetus.
The new North Dakota ban does permit abortions in cases of medical emergencies throughout pregnancy, rather than limiting them to just the first six weeks of pregnancy. But the ban also makes it clear that a psychiatric emergency doesn’t count. Under the legislation, a pregnant person cannot get an abortion even if she claims she will “engage in conduct that will result in her death or in substantial physical impairment of a major bodily function.”
Before the Supreme Court decided Roe in 1973, people who wanted abortions could get the procedure if they convinced their doctor they would die of suicide if they had to continue their pregnancies. Now, for many people, that’s no longer an option.
Ultimately, Ziegler says the fact that abortion ban exceptions don’t really work is a feature, not a bug, for conservative politicians. If you want to be seen as tough on abortion but not so zealous that you’re out of touch, adding unusable exceptions to your abortion bans is one way to do that.
“They’re written in a way to assume that people lie to take advantage of them,” she said, “and to be hard to use for that reason.”
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