Experts explain how abortion ban exceptions for rape and incest are inaccessible in practice

(CNN) — “When I was 5, I began getting sexually abused by my stepfather, and he got me pregnant when I was 12,” Hadley Duvall says in a new campaign ad released by Vice President Kamala Harris Thursday.

Duvall, a rape survivor turned reproductive rights advocate, has been featured in several high-profile campaign ads and spoke at the 2024 Democratic National Convention. She has recounted the harrowing pattern of abuse that resulted in her pregnancy as a child in Kentucky, and the options she had about what to do with that pregnancy.

Today, a 12-year-old rape victim in Kentucky would have no in-state options to consider.

Kentucky is one of 13 states with near total abortion bans — on paper, all bans include exceptions to save the life of the mother. It is also one of 10 states with abortion bans or early-term restrictions highlighted by a KFF analysis that do not make exceptions for cases of sexual assault.

Duvall also featured in a campaign ad for Kentucky’s Democratic Gov. Andy Beshear, who says his state’s abortion law gives rapists more rights than their victims.

A series of legal challenges to abortion bans has led to shifting policies in the years since Roe v. Wade was overturned in 2022.

“Sixty-four thousand pregnancies from rape have occurred in states with total abortion bans, and Trump did this,” Duvall says in the ad. “Women and girls need to have choices. With Kamala Harris, we do.”

Former President Donald Trump appointed three of the five justices on the US Supreme Court who voted to overturn Roe v. Wade in 2022. Trump, in the most recent presidential debate, voiced support for abortion ban exceptions in cases of rape, incest and when the life of the mother is at risk.

But doctors and reproductive health experts say exceptions for cases of rape or incest – long touted by politicians as features of a more measured anti-abortion approach – are not actually designed to help survivors access abortion care.

In practice, exceptions are inaccessible

“Abortion ban exceptions do not work, and in a lot of ways they are just marketing from anti-abortion politicians, because they suggest that there are exceptions,” said Elisabeth Smith, director for state policy and advocacy at the Center for Reproductive Rights. “They suggest that people who need care for really particular and difficult reasons can access it, and really none of that is true.” Smith’s organization has been involved with multiple legal battles regarding exceptions to abortion bans.

While many anti-abortion groups do not believe exceptions should be made, even in cases of rape or incest, some say they must be “tolerated” to advance restrictions on reproductive care.

“Each human being, regardless of how he or she is conceived, deserves protection under the law; however, MRL will sometimes be compelled to tolerate the addition of a rape or incest exception to a measure in order to obtain more protection for the unborn than now exists,” the anti-abortion group Missouri Right to Life states on its website.

There are 11 states with abortion bans or early-term restrictions that do outline exceptions for cases of sexual assault, the KFF researchers note, but a combination of low provider availability, reporting requirements and pregnancy term limits make them unattainable to many.

“I’m not aware of any single instance of a survivor of rape who is pregnant being able to get an abortion in a state with an abortion ban under one of these exceptions,” Dr. Samuel Dickman, a practicing abortion provider and chief medical officer at Planned Parenthood, Montana, told CNN.

Most abortion providers have closed up shop in states with bans, he noted. Doctors working in hospital OBGYN units in states with abortion bans have described watching their colleagues flee to states where they can practice without restrictions.

Even if a survivor qualifies for an abortion under an exception, “Who are they going to call? There are no abortion providers in those states anymore,” said Dickman. “That’s the beginning and end of the story.”

“To tell a survivor, we’re going to compel this kind of re-traumatizing, detailed disclosure to a law enforcement official – and then on top of that, there are actually no abortion providers left to give you this medical service – it’s inhumane,” he added.

Rather than jump through the hoops required to qualify for an abortion exception, it’s more likely a pregnant survivor of sexual assault will leave a state with restrictive abortion policies to seek care, Dickman says.

He’s seen several women like this in his Montana clinic, most recently from Idaho.

Rape and incest exceptions to Idaho’s abortion ban are limited to the first trimester. A pregnant person must report the assault to law enforcement and provide a copy of the report to their doctor before receiving an abortion.

Idaho Gov. Brad Little, a Republican, has said he supports the pro-life policies in his state’s law but expressed concerns about access to the procedure for survivors.

“The challenges and delays inherent in obtaining the requisite police report render the exception meaningless for many. I am particularly concerned for those vulnerable women and children who lack the capacity or familial support to report incest and sexual assault,” Little wrote in 2022.

Most rape and incest exceptions outline a reporting requirement, often with a tight deadline attached. West Virginia, South Carolina, Mississippi, Idaho and Georgia specifically require an assault be reported to law enforcement, but every one of these exceptions requires a victim to recount the details of their assault to another person – and that can have a negative impact on their mental health, Dickman said.

Take Iowa, which bans abortion after six weeks with exceptions for medical emergencies, rape, incest and fetal abnormalities that are incompatible with life. Rape survivors have 45 days from the day they were raped to report the assault to a law enforcement or health agency. People who get pregnant as a result of incest have 140 days to report the incident.

Victim advocates say these kinds of deadlines aren’t realistic for people who are already dealing with trauma. In fact, the reporting requirements may be designed to prevent people from accessing care, says Madeline Gomez, Planned Parenthood’s managing senior policy counsel.

CNN reached out to the governor’s office in Iowa, Idaho and Kentucky for comment and did not receive a response.

“There is this idea that people seeking an abortion will lie in order to access care, and it’s really grounded in these dangerous old myths that women are dishonest or untrustworthy – that survivors shouldn’t be believed,” Gomez said.

Because many sexual assault survivors never report the incident to authorities, it’s difficult to capture the real number of pregnant rape survivors who seek abortions, experts say. Dickman contributed to research published in the journal JAMA Internal Medicine estimating that about 520,000 rapes led to 64,565 pregnancies in the 14 states that enacted abortion bans after the Supreme Court overturned Roe v. Wade and eliminated the federal right to an abortion.

“The scale of rape-related pregnancies – this is common, and there’s just no way that you’re going to be able to provide this kind of protection for survivors of rape, while also banning abortion for everyone else. It just doesn’t compute,” Dickman said.

Some of those sexual assault survivors are included in the increasing number of patients traveling across state lines to get an abortion – 1 in 5 patients, according to a December 2023 analysis by the Guttmacher Institute, a health research group that supports abortion rights. But that option may not be available to everyone, including low-income or underage survivors – people who are likely to still be living with their abusers, Smith says.

“I think there’s every reason to think that survivors of rape and incest are even more likely to be forced to continue those pregnancies,” Dickman said. “If they’re living with an abusive partner, if they’re living in an unsafe environment, that’s going to make it harder to travel to another state for a basic medical service.”

A troubling trend

Rather than repealing bans, legislators in multiple states have acted to make rape and incest exceptions less accessible, Smith noted, citing pregnancy term limits to exceptions, like those in Idaho or Georgia.

A Republican-led Senate in Missouri voted against adding rape and incest exceptions to its abortion ban in February. Republican legislators in Louisiana rejected a similar bill in May, the Associated Press reported.

Explaining her vote against adding exceptions for victims of rape, Louisiana state Rep. Dodie Horton said, “I think we should punish the perpetrator to the nth degree, I’d love to hang them from the high street if it was in my power to do so. But I cannot condone killing the innocent,” according to the AP report.

“If legislators wanted the exceptions to work, they could make them work, but they don’t,” Smith said.

CNN reached out to Louisiana lawmakers for comment but did not receive a response.

Abortion rights proponents are hopeful about the November election, where ballot measures in several states could restore abortion protections.

Rape and incest exceptions to abortion bans have not always been the standard, and they may not be going forward, says Mary Ziegler, a professor at the UC Davis School of Law focused on reproductive care.

“From the beginning, the anti-abortion movement was worried that rape and incest exceptions would be a loophole that people would use to have elective abortions,” Ziegler said. “The writing of rape and incest exceptions in subsequent years – to the extent they even still existed – was designed to make it harder for people to use the exceptions.”

Ziegler has warned that the trend in states excluding rape and incest exceptions from abortion bans could lay the groundwork for other restrictive policies.

“I don’t know how quickly we’re going to see prosecutions for abortion itself, but I think there’s a trend pointing in that direction,” she said.

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