Most Abortion Bans Include Exceptions. In Practice, Few Are Granted.

Most Abortion Bans Include Exceptions. In Practice, Few Are Granted.

Updated: 2 months, 8 days, 22 hours, 44 minutes, 41 seconds ago

A procedure room at Jackson Women's Health Organization in Jackson, Miss., on Nov. 3, 2021. (Gabriela Bhaskar/The New York Times)

Last summer, a Mississippi woman sought an abortion after, she said, a friend had raped her. Her state prohibits most abortions but allows them for rape victims. Yet she could not find a doctor to provide one.

In September, an Indiana woman learned that a fetal defect meant her baby would die shortly after birth, if not sooner. Her state’s abortion ban included an exception for such cases, but she was referred to Illinois or Michigan.

An Ohio woman carrying triplets faced a high risk of dangerous complications, including delivering too early. When she tried to get an abortion in September through Ohio’s exception for patients with a medical need, she was turned away.

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The abortion bans enacted in about half the states since the Supreme Court overturned Roe v. Wade in June do not prohibit abortion entirely. Most make exceptions in certain circumstances, commonly to protect the health or life of the patient, or in the case of rape or incest. And as conservative state lawmakers prepare to take up new restrictions on abortion in upcoming legislative sessions, exceptions will be at the heart of the debate.

But in the months since the court’s decision, very few exceptions to these new abortion bans have been granted, a New York Times review of available state data and interviews with dozens of physicians, advocates and lawmakers revealed.

Instead, those with means are traveling to states where abortion is still broadly legal or are obtaining abortion pills at home because the requirements to qualify for exceptions are too steep. Doctors and hospitals are turning away patients, saying that ambiguous laws and the threat of criminal penalties make them unwilling to test the rules.

“Having the legal right on the books to get an abortion and getting one in practice are two distinctly different things,” said Laurie Bertram Roberts, the executive director of the Mississippi Reproductive Freedom Fund, a group that supports abortion rights.

An example of that disconnect is in Louisiana, which has exceptions for protecting the life or health of the patient and for deadly birth defects, and has reported zero abortions since its ban took effect. Mississippi, with exceptions for rape and protecting the life of the patient, has reported no more than two. Alabama, Kentucky, Missouri and Texas have exceptions for protecting a patient’s life or health and have reported similarly low abortion figures.

There is no reliable estimate for the number of patients who seek abortions because of sexual assault or pregnancy complications, yet experts say the number is undoubtedly much more than zero. Thousands of women have most likely qualified for exceptions to state abortion bans in the months since Roe was overturned, they say.

A majority of Americans think abortion should be legal in most circumstances, and even those who otherwise oppose abortion generally support exceptions for rape and for health complications. But abortion rights advocates say legal exceptions do nothing but make abortion bans appear more reasonable than they really are.

Opponents of abortion, including those who designed the bans, say the laws are working as intended: Exceptions should be rare. If doctors are not treating patients who qualify, they say, those doctors are to blame for overinterpreting the law.

“We’re not convinced there is a problem,” said James Bopp, the general counsel for the National Right to Life Committee, who writes model legislation for states. “They are just trying to undermine the law in order to have it repealed.”

He added, “If there is a good-faith problem, then it ought to be addressed.”

Some anti-abortion lawmakers privately acknowledge the challenges that exceptions bring, but only a handful of legislators have been willing to try to revise their laws.

“We can’t imagine every single circumstance that’s going to happen out there. That’s the problem with exceptions,” said state Sen. Tom Davis of South Carolina, an anti-abortion Republican who was unable to persuade colleagues this fall to broaden the exceptions in a proposed ban. “We’re obligated as legislators to assess whether or not what we’ve done has had unintended consequences.”

Obstacles to Access, Even for Those Who Qualify

Mississippi’s ban on abortion after 15 weeks of pregnancy was the law that challenged and led to the overturning of Roe v. Wade, touching off a wave of bans across the country. The state banned all abortions with two exceptions: one to protect the patient’s life and one for rape victims.

Just before the ban took effect, Stephanie Piper, the sexual assault program manager at the Gulf Coast Center for Nonviolence in Biloxi, Mississippi, heard from the friends of a woman who was raped and became pregnant.

The woman did not want to have the baby, Piper said. But Piper told her it would be hard to find an in-state abortion provider willing to help. Mississippi’s sole abortion clinic, which had long relied on out-of-state doctors, had closed.

“Across the state, the attitude about abortion is: We don’t do that here,” Piper said.

Even if Mississippi still had an abortion provider, the woman probably would not have qualified for the state’s rape exception. About one-quarter of states that prohibit abortions include allowances for rape and incest victims, and nearly all of those, including Mississippi, require proof of an assault from a police report or a doctor’s note.

The woman did not talk to law enforcement because she did not want her abuser, who had been her friend, to get in trouble, Piper said.

Anti-abortion advocates say that a police report is necessary to prove that an assault happened and to prevent providers from using the exception as a backdoor to access.

“You need detailed laws for those that don’t want to obey the law,” Bopp said.

Those who work with sexual assault victims say a requirement to report to law enforcement is one of the steepest barriers for those who seek abortions. About two-thirds of victims do not report to law enforcement; many know their abuser and worry about the consequences.

A Centers for Disease Control and Prevention survey from 2016 and 2017 found that about 15% of women who have been raped at some point in their lifetimes became pregnant as a result of the rape, an estimated 3.4 million women.

Piper said the Mississippi woman found a clinic appointment more than 600 miles away in Indiana. The woman and three friends pooled the several hundred dollars needed for gas, lodging and medical fees and drove together, trying to keep her spirits up.

She got the abortion just weeks before Indiana’s own abortion ban briefly took effect.

Black-and-White Rules Unsettle Doctors

Indiana’s ban was the first in the country to be written and approved after Roe fell. Many anti-abortion lawmakers felt the exceptions were written so broadly that they initially joined Democrats in opposing it, but the bill eventually passed with stricter requirements. Its exceptions include an allowance for patients whose fetuses have deadly birth defects, such as incomplete skulls or missing kidneys.

The same week the ban took effect in September, Dr. Lori Day said, she saw a patient whose OB-GYN had discovered signs of a deadly birth defect at her 20-week anatomy scan. Day, a maternal-fetal medicine specialist, confirmed the diagnosis and explained that the fetus either would not survive the pregnancy or would die soon after birth.

Birth defects kill at least 6,200 babies each year between 20 weeks of pregnancy and early infancy, according to the CDC, though this figure does not include pregnancies that end in abortions or miscarriages.

Studies have shown that a majority of patients who discover a deadly birth defect seek an abortion. Physicians say that patients often make this choice to spare the fetus from suffering or their families from drawn-out grief.

The lawyers at Day’s hospital felt that Indiana’s new law prohibited the methods for the procedure and decided that they could not offer abortions because of the ban’s confusing wording.

“It was messy enough that everyone was appropriately nervous,” Day said.

Exceptions for fatal birth defects exist in only about one-third of abortion bans. Utah, for example, allows exceptions for these abnormalities under its ban, but only if they are “universally lethal.” Physicians say they rarely have such consensus.

In Louisiana, lawmakers attached a list of about two dozen conditions to their exception for fatal defects. But this summer, they said they would add at least one more condition after a woman was denied an abortion because her diagnosis was not listed.

Some members of the anti-abortion movement say these cases should not be considered abortions and that doctors should be able to terminate these pregnancies without fear.

“State lawmakers don’t go into the Capitol saying we want to scare doctors,” said Katie Glenn, the state policy director at Susan B. Anthony Pro-Life America. “A lot of people are telling these doctors they need to be worried when they don’t.”

Most states that prohibit abortion also include an exception for patients facing severe complications, which are estimated to occur in 14% of pregnancies. This exception, too, is carefully narrow, and every state law that has it uses almost identical language: “to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.”

Physicians say that they cannot anticipate all of the ways in which pregnancy can go awry and that lawmakers were wrong to assume they could. Requiring doctors to pause their care to seek legal counsel puts patients’ lives at risk, they say.

In September, an Ohio woman carrying triplets faced a complicated pregnancy and delivery. Her doctors worried her health would decline and that none of the three fetuses would survive. She sought what specialists call a multifetal reduction to terminate two of them.

Multifetal reductions are typically recommended for patients carrying triplets or more because these pregnancies are always at higher risk. The woman’s maternal-fetal medicine specialist, Dr. Ellie Ragsdale, had offered these procedures regularly.

Ragsdale thought the Ohio woman was a clear-cut case for the state’s health exception, but her hospital’s lawyers thought the threats to the patient’s health were not immediate enough. (The ban has since been blocked in court.)

Ragsdale’s patient traveled to Michigan for the multifetal reduction. In Indiana, Day also thought it would be simpler to refer her patient to Michigan or Illinois, rather than try to track down a willing doctor in the state.

Day said the patient told her she could not afford the travel or medical fees not covered by insurance. She did not hear from the patient again.

“What gets put out to the press is, ‘We have exceptions for fetal abnormalities, and we have exceptions for maternal life,’” Day said. “When you get into the nitty-gritty details of it, you actually don’t.”

Almost every state ban makes an exception when the pregnancy endangers the patient’s life, but three states — Idaho, North Dakota and Tennessee — have a stricter provision. In those states, the burden is on doctors to prove the patient’s life was in peril. In the other states, the burden would be on prosecutors to prove that it was not.

Tennessee’s ban is the only one of the three not currently blocked by a judge, and anti-abortion advocates have held it up as a model because it is not weakened by exceptions. Now confused and frightened doctors are asking legislators to change the law.

Bob Ramsey, a former Republican representative in Tennessee who opposes abortion, ultimately did not vote for the state’s ban because it did not contain explicit exceptions. In his view, some of his colleagues ignored warnings that the law would rattle doctors.

“The confusion is actually an intent,” said Ramsey, who left office after losing a primary last year. “The more confusing it is, the more likely there will be no abortion in the state of Tennessee. That’s a win for people who are opposed to abortion.”

A Special Case or a Loophole?

Anti-abortion advocates suggest that the situation will improve as doctors realize they are unlikely to face prosecution for offering abortions as allowed under the law. There have been no known prosecutions since these laws went into effect, though few providers are testing the rules.

“Some of the doctors have been very cautious because things are not that black and white,” said state Sen. Regina Barrow of Louisiana, an anti-abortion Democrat who supported her state’s ban. “We’re going to have to do a better job to make sure they understand what is definitely allowable.”

Some anti-abortion advocates say that if doctors believe the exceptions are too ambiguous, they should suggest fixes rather than criticize the laws.

“They’re not trying to fix the problem,” said Bopp. “I would be screaming from the housetops, ‘We better amend this law to make it clear that this can be done, because this is wrong.’”

But abortion rights advocates have warned for decades that exceptions would not work in practice. They point to the rare instances of patients being granted exceptions to the Hyde Amendment, which blocks federal Medicaid funding for abortion services.

And those on both sides of the issue say there may be no middle ground.

Mary Ziegler, a law professor at the University of California, Davis who specializes in the history of abortion, said, “What would seem workable to a lot of physicians or reproductive-rights supporters would look like a loophole to the pro-life movement.”

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