Why Exceptions for the Life of the Mother Have Disappeared
When Americans used to imagine life post-Roe, many seemed to believe that at the very least the country would agree on one thing: the need for an exception to save a woman’s life. These exceptions enjoy sweeping public support; a recent Pew Research Center poll found that 73 percent of Americans favored legal abortion if a woman’s life or health was at risk. Only 8 percent of respondents favored no exception whatsoever to criminal abortion laws.
Life-of-the-patient exceptions do not even require anti-abortion-rights Americans to change their minds about fetal personhood. Even if someone believes that a fetus enjoys the same rights as an adult, abortion could be justified much in the same way that people who are anti-violence can understand the need in certain situations for self-defense. Support for the so-called life-of-the-mother exception seemed unshakable.
[From the May 2022 issue: The abortion underground]
Not anymore. Anti-abortion-rights groups, like Wisconsin Right to Life, have described the “life of the mother” exception as unnecessary and wrong. The Idaho GOP just approved a platform with no lifesaving exception. Republican candidates like Matthew DePerno, the Republican running to be Michigan’s attorney general, oppose all exceptions to abortion bans, and that includes to save a mother’s life. Conservative states are rushing to eliminate or narrow existing exceptions to their laws. Powerful groups like Students for Life, Feminists for Life, and the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) argue that “abortion is never medically necessary” and that doctors should always be punished for intentionally taking a fetal life.
Why has what was once unthinkable suddenly become a legal reality, despite its extreme unpopularity? Recent changes in both the GOP and the anti-abortion-rights movement have something to do with it, but the problem runs deeper: a twin skepticism of women and the medical establishment. Even though activists of the anti-abortion-rights movement and the politicians who support them sometimes argued that women must be protected in certain cases, they question the honesty of people—both doctors and patients—who invoke emergency exceptions. These dual suspicions have produced a new definition of abortion—as the intentional, criminal taking of a life—and a growing consensus that abortion bans should have no exceptions.
The roots of current conflicts about emergency exceptions to abortion bans go back to the 1960s, when states began introducing modest reforms to criminal abortion laws. Many of the early bills were patterned on a proposal from the American Law Institute, a group of elite lawyers, judges, and academics, allowing abortion in cases of rape, incest, health threats, and serious fetal conditions.
These bills enjoyed bipartisan support; Republicans including Ronald Reagan and future Vice President Spiro Agnew signed them into law. Opposition came from an anti-abortion-rights movement with strong ties to the Catholic Church—and largely, in Congress and state legislatures, from a subset of Catholic politicians.
For them, the fear was that women would take advantage of the already narrow exceptions. In the 1960s, many seeking abortion had claimed to be suicidal, leading to a wave of abortions justified on the basis of mental health. In the eyes of these Catholic activists and their allies, most of these reasons were bogus. The same was true of abortions in cases of rape. What was to stop someone from lying about sexual assault? asked anti-abortion-rights commentators. Exceptions to abortion bans, they worried, would be the exception that swallows the rule.
Debate about abortion-ban exceptions temporarily receded after the Supreme Court recognized a right to choose abortion. Starting in 1980, the GOP platform included support for the long-term fantasy of the anti-abortion-rights movement: a constitutional amendment banning abortion nationwide. As a rite of passage, Republican candidates had to declare their positions on abortion exceptions. But every Republican president supported an exception for rape and incest. Support for lifesaving exceptions went without saying.
Cracks in the consensus on exceptions showed early, however. In 1976, Congress passed the Hyde Amendment, a rider to an appropriations bill for the Department of Health and Human Services that banned Medicaid reimbursement for abortion unless a person’s life would be endangered if they carried a pregnancy to term. Every year, when the Hyde Amendment came up for reconsideration, a fight began about whether it should have additional exceptions. Unless a patient’s life was on the line, the answer for Republican anti-abortion-rights leaders was a firm no.
Health exceptions, argued abortion foes, functionally allowed abortion on demand. Similarly, women could claim to have been raped and get an abortion whenever they wanted. Henry Hyde, the author of the eponymous amendment, complained that women could just claim to have been sexually assaulted, and everyone would believe them. “No additional accountability,” he added, “is required of them.” The Hyde Amendment fight created two worlds: one for low-income patients, many of them people of color, and another for everyone else.
[Read: Why America is the global outlier in abortion]
In the past decade, whatever Republican support there once was for many such exceptions disappeared more or less completely. The Republican Party that emerged from the Tea Party wave in the state legislatures of 2010 and the 2016 presidential election was more populist and conservative on abortion. In some red states, lawmakers no longer feared a competitive general election; the only real threat came from conservative primary challengers, who could wield support for any abortion-ban exceptions as a sign of weakness.
Once Donald Trump came on the scene, the national GOP doubled down on extremism. Trump never appealed to a majority of voters, but that hardly seemed to bother him. His recipe for electoral victories was to turn out conservatives and frighten other voters that Democrats were even worse than he was. Identifying plans that appealed to the average voter hardly seemed worth the trouble. Other Republicans tried to replicate Trump’s winning formula, but with a focus on abortion, detailing positions intended to please the most ardently anti-abortion-rights voters, no matter what anyone else thought.
During this same period, leaders of the anti-abortion movement have developed deep suspicion of elite medical organizations like the American College of Obstetricians and Gynecologists and even the CDC. The more that anti-abortion-rights Americans distrust mainstream science, the easier it is for them to believe that there is no need for a woman to have an abortion to save her life, ever. This belief is in some ways dependent on semantics. Pro-life doctors distinguish “direct abortions,” where doctors intend to end a pregnancy, from morally permissible procedures where the termination of pregnancy is the secondary effect of another emergency medical procedure. This distinction lines up with Catholic religious teachings: The United States Conference of Catholic Bishops instructs that abortion, defined as the “directly intended termination of a pregnancy, is never permitted,” but allows for “procedures that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman.”
This intent-based definition of abortion has spread throughout the anti-abortion-rights movement, and fits into an ascendant anti-abortion-rights model framing abortion as a crime, like homicide, defined by the perpetrator’s state of mind. AAPLOG, the movement’s leading medical organization, argues that “direct abortion is not medically necessary to save the life of a woman.” The organization suggests that doctors may separate “a mother and her unborn child for the purposes of saving a mother’s life,” but not with the intention of taking a fetal life. And even doctors with the right intentions must make “every reasonable attempt to save the baby’s life.”
[Read: When the religious doctor refuses to treat you]
In theory, that would allow doctors to treat ectopic pregnancies and HELLP syndrome, a serious complication tied to high blood pressure during pregnancy. But the truth is that, in practice, the mandate to avoid direct abortion can change or delay the treatment that doctors provide. John Seago of Texas Right to Life recently acknowledged in The New York Times that the prohibition on direct abortions means delaying medical interventions; he stressed that a doctor could not choose to “cause the death of the child today” because of a belief that “they’re going to pass away eventually.”
Although Seago argued that serious complications would justify immediate intervention, it’s hard for many to figure out what doctors are allowed to do or when. That’s all the more true when the penalties for getting it wrong are steep: new abortion laws, including trigger bans, contain harsh prison sentences for doctors, up to life in prison. Doctors less than absolutely certain that they can provide lifesaving care may choose self-preservation over their patients’ well-being. Medically, the erosion of the “life of the mother” exception can mean dangerous delays and uncertainty. In politics, it means a fundamental denial of the idea that abortion ever saves a life. The upshot is that the new mainstream in the anti-abortion-rights movement holds that there is no such thing as a medically necessary abortion.
Since the Supreme Court overruled Roe last month, conservative lawmakers have been quick to say that they do care about women. Anti-abortion-rights groups have announced initiatives that they claim will help expecting parents. Republican lawmakers have made lists of crisis pregnancy centers and promised to funnel more taxpayer dollars to them.
But there is reason to doubt how deep these concerns run, especially when states mandate protection for fetal life while leaving the fate of women to the whims of religious nonprofits. The erosion of “life of the mother” exceptions tells us something important too: Conservative lawmakers do not trust women to make that decision, and that can make “caring” for them all but impossible.