Under Congress’ New Abortion Ban, Rape Victims Will Still Have Trouble Getting Access

On Wednesday, the GOP-controlled House approved a national 20-week abortion ban, successfully reviving a piece of legislation that was stymied earlier this year because of its narrow exception for rape victims. But when it comes to ensuring reproductive health care for survivors of assault, GOP lawmakers will perhaps never be able to get it quite right.

This time, Republican lawmakers were able to leverage enough support for the bill by revising its rape exception. They removed controversial language that would have required rape victims to report the crime to police in order to access abortion, and replaced it with new language that instead requires rape victims to seek counseling or medical care within 48 hours of their abortion procedure.

This slightly broader rape exception is a concession that Republicans were forced to make after some members of the party withdrew their support for the bill in January, raising concerns that the original language would alienate young female voters. The negotiation over the legislation illustrates the fact that the debate over proposed abortion restrictions often hinges on whether the legislation provides an adequate exception to victims of rape and incest.

From a political perspective, this pressure point makes sense. Since the vast majority of Americans support abortion access for survivors of sexual assault, politicians who don’t take this position can be construed as particularly extreme. It seems especially callous to remove reproductive rights from individuals who were already denied the autonomy over their bodies when they were raped. And particularly since Republican candidates have a long history of making offensive comments about rape and abortion, they likely don’t want to provide any openings for further criticism about their approach to sensitive issues of sexual assault.


However, from a policy perspective, there’s no real way that Republicans could amend their rape exception to solve these issues. Even when survivors of sexual assault are technically allowed to circumvent abortion restrictions, the process of obtaining that exception typically ends up being too complicated for them to navigate — no matter whether they have to file a police report or go through the slightly less arduous step of getting a doctor’s note.

The best evidence in this area comes from examining the real-world implications of the Hyde Amendment, the decades-old federal policy that prohibits taxpayer funding for abortion except in the cases of rape, incest, and life endangerment. Hyde’s exceptions have become somewhat of the gold standard for the narrow exemptions that “reasonable” abortion restrictions are expected to carve out.

Thirty-two states and the District of Columbia follow the federal Hyde Amendment and prevent low-income women in the Medicaid program from using state dollars to help cover their abortion procedures. According to a Washington Post analysis, 11 states require rape victims to obtain a police report or social services agency report to claim the exception (analogous to the GOP’s old rape exception), while 21 states require rape victims to present a doctor’s note (analogous to the GOP’s new rape exception).

CREDIT: ThinkProgress/Dylan Petrohilos
CREDIT: ThinkProgress/Dylan Petrohilos

But these polices simply don’t work in practice. Over half of eligible abortions don’t actually get reimbursed by the public insurance program, according to a 2012 study from Ibis Reproductive Health.

The National Abortion Federation (NAF), an organization that runs a hotline for women who need assistance getting an abortion, is well aware of this reality. Their employees field a lot of phone calls from women who can’t afford to pay for abortion procedures that their state Medicaid program should technically be covering.


“It is totally commonplace. You’ll have a rape survivor who calls their Medicaid office, and they’re told that Medicaid doesn’t pay for abortions in that state,” Vicki Saporta, the president of NAF, told ThinkProgress in an interview. “I cannot tell you how many women we raise funds for who should be able to have their abortion care paid for. Medicaid is supposed to pay for those women to obtain abortion care, but does not.”

Rather than struggling to overcome the complicated web of state funding restrictions, it’s easier for these women to turn to nonprofit organizations like NAF — especially if they live in a state that’s hostile to abortion. In the rare cases when the federal government does agree to fund an abortion that qualifies for one of Hyde’s three exceptions, it virtually never happens in the 33 states that restrict Medicaid’s abortion coverage. A study from the Guttmacher Institute found that more than 99 percent of the abortions that did end up getting funded by federal Medicaid dollars in 2010 occurred in the 17 states that don’t impose Hyde’s restrictions on their state programs.

Restrictions on insurance coverage for abortion represent a huge hurdle for people who want to end a pregnancy; according to Saporta, it’s “probably the biggest barrier to women accessing the care they need.”

But criminalizing the procedure entirely puts women in an even more tenuous situation. Right now, the sexual assault survivors who can’t get their abortion covered through the Hyde Amendment’s ineffective exception process at least have the option of turning to nonprofit abortion funds to help them pay for their procedure. But under a national 20-week abortion ban with an ineffective rape exception, women will have nowhere left to go.

In this context, it becomes clear that the GOP will never be able to craft a rape exception that’s truly sensitive to survivors of sexual assault — let alone any other woman who may need abortion care for a different and equally valid reason.

“I’ve been in this field for 20 years — sometimes I think I’ve heard every story there possibly could be. But then you hear another story that a hotline operator tells you,” Saporta said. “Just last night, I was reading through some stories of women on the hotline who needed post-20-week abortion care. Even I was surprised at how desperate some women’s lives and situations are, and the desperate means that some of them will go to in order to terminate an unwanted pregnancy.”


Saporta recounted one story from a woman who was in an abusive relationship, became pregnant from rape, and couldn’t figure out how to pay for her abortion. She attempted to terminate her pregnancy on her own by ingesting poison, ended up in the hospital, and received several blood transfusions — and at the end of that ordeal, she was still pregnant.

“If you put a national 20-week ban on top of the state restrictions that have already been passed, I don’t know what some of these women would do,” she said.