Republican legislators have been waiting for years to ban abortion. But now that their moment is here, they can’t agree about what to do with it.
The latest round of this drama just played out in the South Carolina Legislature, where Republicans spent two weeks debating a full ban on abortion in the state — only to deadlock on the details.
A full ban didn’t seem like it would be an especially hard sell, at least in theory. South Carolina is a red state, with a partisan lean of R+18.6. And when the bill was introduced, most Republicans in the conservative legislature, where they outnumber Democrats nearly 2-to-1, seemed to support the general concept of banning abortion.
But they quickly splintered over the details. A group of Republicans introduced a bill that banned abortion without exceptions for rape, incest and lethal fetal abnormalities, but that failed after a day of pleading and accusations on the House floor. A bill with a limited set of exceptions passed the House, but those exceptions were then stripped out of the bill as soon as it landed in the state Senate. Just like that, back to square one. Late Thursday night, Senate Republicans still couldn’t agree on what form the bill should take. After a Republican briefly filibustered the full ban, the Senate settled on adding more restrictions to the state’s six-week abortion ban, which is temporarily blocked by the state Supreme Court, and sent the bill back to the House.
This stalemate reflects the broader conundrum facing Republican lawmakers now that the Supreme Court is no longer stopping them from outlawing abortion. The highly restrictive laws that anti-abortion advocates want to pass are forcing messy — and public — conversations about just how restrictive to be. Are any exceptions — like those for rape and incest — acceptable? And how should Republicans weigh the broader political backlash against abortion bans, which has reshaped the landscape of the midterm elections?
So far, Republicans are bitterly divided over whether to push forward with the kinds of laws that passed before the Supreme Court overturned Roe v. Wade. According to a FiveThirtyEight analysis of every pre-viability abortion ban, preexisting bans very rarely included exceptions for circumstances like rape and incest. But now, more Republicans want to back away from a highly unpopular approach approach — sparking accusations from fellow party members that they are pro-life in name only.
When we examined the text of each law banning abortion before 20 weeks of pregnancy that is currently in effect or being fought in the courts, we found that 17 of the 23 states with a pre-20 week ban have no exceptions for rape and incest, and five of the states have only partial exceptions, limiting how far along in a pregnancy an abortion can be obtained, requiring victims of rape and incest to file a police report — or both.
Now, the calculus may be changing. Gil Gatch, a South Carolina Republican legislator who opposes abortion but advocated for exceptions to rape and incest during the recent legislative debate, told FiveThirtyEight that, before the Dobbs ruling, abortion bans before 20 weeks were mostly a matter of rhetoric, as Supreme Court precedent meant they were all but guaranteed not to go into effect. Now, not so much. “It’s much more difficult — to be honest, it’s scarier — because if we get the wrong thing done, it’s on us,” he said.
South Carolina Republican lawmakers aren’t the first to fracture over how far abortion bans should go. In August, more than half of the Republicans in the Indiana House of Representatives voted to remove rape and incest exceptions from the near-total ban they were considering. (The law eventually passed with limited rape and incest exceptions and will go into effect on Sept. 15.) The same month, the West Virginia Legislature deadlocked on its own sweeping abortion ban because Republicans couldn’t agree on the penalties for doctors, leaving the procedure legal in the state. (Part of the legislature will return next week, but it’s not clear whether the GOP has come to a consensus about the abortion bill.)
Similar debates could unfold in other states like Ohio, Iowa and Nebraska, which have conservative legislatures but no law that fully bans abortion. Already, some red lines have become visible. Earlier this summer, Nebraska’s Republican governor announced that despite wanting to amend the state’s abortion laws he would not be calling a special session of the legislature because not enough state senators were willing to vote for a 12-week abortion ban.
For Republicans, the question of whether rape and incest victims should be exempted from an abortion ban has turned into an especially raw divide. Some anti-abortion advocates and lawmakers think those exemptions simply don’t make sense. If abortion is morally wrong, why should an unborn fetus be killed because of the circumstances of its conception? Allowing a carveout for rape and incest would be “turning one tragedy into two,” said state Rep. John McCravy, as he introduced the bill in the South Carolina House. Before the Senate committee vote to remove rape and incest exceptions from the House bill, Republican Sen. Richard Cash compared abortion to slavery. “I don’t mean to be insensitive to anyone’s past, but is the human being in the womb nothing more than the property of the woman?” he said.
Some anti-abortion lawmakers and advocates see this as a kind of test — a way to see who isn’t espousing pro-life principles just for the sake of politics. “I was elected for what my constituents want, and the majority of them are telling me, just like I believe, that life begins at conception. So no, I’m not for exceptions,” Rep. Melissa Oremus, another South Carolina Republican, told FiveThirtyEight. The challenge, she said, is that even Republicans were surprised by the Supreme Court’s ruling. “We never thought we’d see Roe overturned in our day,” she said. “So now [that] you have the ability, what are you going to do about that?”
That position — while ideologically consistent — is exceptionally unpopular. In poll after poll, large majorities of Americans have said that abortion should be legal in at least some circumstances. That includes many people who are opposed to abortion most of the time. A recent Pew Research Center poll conducted in March found that only 37 percent of abortion opponents wanted the procedure to be completely illegal in cases of rape.
Other conservative lawmakers told me that they’re offended by the idea of making rape and incest exceptions into an anti-abortion litmus test. “I’m very much a conservative on this issue, but you have to acknowledge the fact that there are tragic and cruel circumstances where it’s presumptive, edging on hubris, to say that people can’t make their own decisions,” Rep. Micah Caskey, who proposed an amendment that would have created a limited exception for rape and incest victims who are minors, told FiveThirtyEight. “Yet there are purists who want to paint me as not pro-life for saying that,” he added.
On the first day of debate in the South Carolina Senate, all three Republican women in the chamber said they refused to vote for the bill if it didn’t contain rape and incest exceptions. “Are we simply baby machines? Are you pregnant with a dead baby? Too bad. Raped at 11 by your grandfather and got pregnant? That’s just too bad,” said Sen. Penry Gustafson, a Republican.
As they went back and forth about potential amendments, some South Carolina Republicans seemed a little shocked by the arguments they were having. Republican state Sen. Tom Davis, who ended up leading the filibuster against the bill, proposed another exception for fatal fetal abnormalities — a version of which appears in five other states’ abortion bans that are currently in effect or being litigated, according to our analysis — only to be accused of advocating for euthanasia by several other Republicans. “We have 170 legislators, mostly white men, saying to a woman that even though your doctor diagnoses your child with a congenital defect that isn’t compatible with life outside the womb, you have to carry that child to term,” he said. “Even though the child is going to be born dead! That doesn’t make any sense to me.”
The gulf between Republicans feels unbridgeable, even though the exceptions they’re arguing over are actually very small. According to the Guttmacher Institute, a research organization that advocates for abortion rights, only about 1 percent of women in 2004 sought abortions because of rape, and less than 1 percent sought abortions because of incest. Republicans are not fighting, for the most part, about whether abortion should be legal — they’re arguing over how to handle the tiny subset of cases that force an unpleasant choice between ideological purity and political reality.
But just as morality can shape politics, politics can also shape morality — and in South Carolina, several Republicans warned their colleagues that going too far on abortion could spur a massive backlash. “To those of you who feel that women are inferior, remember you were warned when you are challenged by a female,” said state Sen. Sandy Senn, a South Carolina Republican. “I think it’s going to be interesting to see what happens in the November elections. Because this issue is huge. You don’t think that women will vote single-issue on something like this? Because they will.”