Most Americans want health exceptions in abortion bans. Political infighting keeps blocking them

By Kelcie Moseley-Morris
Idaho Capital Sun

The vast majority of Americans — 82%, according to a recent Marist poll — support allowing abortions at any stage of pregnancy to protect the life or health of the pregnant person. But five of the 14 states with abortion bans — Idaho, South Dakota, Oklahoma, Arkansas, Wisconsin and Mississippi — do not have language in their laws that would allow for abortion to protect a person’s health, only to prevent death.

In all five states, legislation has been drafted to add a health exception, and in many cases, it is Republican lawmakers who are coming forward with proposals to add it. But with ongoing court battles, partisan fights between Republicans at the local, state and federal levels, and arguments among anti-abortion advocates over policy details, those efforts have failed during each state’s respective 2023 legislative sessions.

Idaho’s Legislature nearly advanced a bill that would have added an exception for an abortion to be performed “to treat a physical condition of the woman that if left untreated would be life-threatening.” Rep. Brent Crane, who took office in Idaho’s House of Representatives in 2006 on the promise of advocating for anti-abortion legislation, worked on the bill for months with the founder of Idaho Chooses Life and the Idaho Medical Association. 

The night before the bill was scheduled to receive a hearing in the House State Affairs Committee, Idaho Republican Party Chairwoman Dorothy Moon sent an email to the party’s distribution list that said the legislation was the medical association’s attempt to bring abortions back to Idaho as part of a “closed-door, back-room deal.” She called the association a “progressive trade organization” with doctors educated “in some of the farthest left academic institutions in our country.”

John Oliver mentioned Idaho District 1 Seat A Rep. Mark Sauter in a segment about abortion during Last Week Tonight Nov. 5 on Max. Oliver said, “This Idaho Republican voted for an extremely restrictive abortion ban and has since had second thoughts about how broad it actually is, but listen to him explain just how little thought he put into his original decision,” followed by a clip of an interview with PBS News Hour in which Sauter said, “It really wasn’t high up on my radar other than I’m a pro-life guy and I ran that way. But I didn’t see it having a real big community impact … You get exposed to something, all of a sudden you go, ‘Wow, there’s a different way to look at this.’” Oliver then followed the clip with, “Look, part of me wants to welcome that man’s ability to recognize his own blind spots there, but are you really saying that you didn’t think about how your vote would affect literally half your consitutuents? You’re a f-cking legislator.” Screenshot taken from youtube.com

The Idaho Medical Association has more than 4,000 members, half of whom are actively practicing physicians and others who are retired physicians, physician assistants, nurse practitioners and medical students.

Crane said his decision to pull the bill was a tactical one, because there was disagreement among anti-abortion groups and a lack of support among legislators as a result. Moon’s email certainly had an effect on the decision, he said, but it wasn’t the sole reason.

“[The bill] was going to force lawmakers to have to make the difficult decision between which group they thought had the proper interpretation of what they thought we should do,” Crane said.

At the heart of the disagreement, Crane said, is the idea that a health exception would be used to have “abortion on demand” by extending the definition of health to mental, financial or other forms of health, although Idaho’s law specifically excludes a suicidal pregnant person from qualifying for an abortion.

Rep. Brooke Green, a Democrat, said her caucus decided to walk out of the House chambers when the bill came up for a vote as a form of protest because it only included ectopic pregnancies and miscarriages as exceptions.

“It was one of those situations where we were damned if we do, and damned if we don’t,” Green told States Newsroom. “When you have an environment where you’re the super, super minority, these are the circumstances that play out.” 

Crane said he’s continuing to work to find a compromise that will satisfy all anti-abortion groups and plans to introduce another bill in the upcoming legislative session in January.

“It has been such a long fought, highly emotional, very controversial issue, and people have staked out their positions on both sides that, because there are moral underpinnings to the issue, it feels to some folks that we’re compromising,” Crane said. “But we’re not going to be able to push this issue away and say we’re not going to deal with it. It has to be dealt with.”

Exceptions in abortion bans are ‘fake,’ Wisconsin Democrat says

For abortion rights advocates, even the states with health exceptions in their ban laws are causing harm, because often the laws lack clarity and do not account for instances of fatal or life-limiting fetal anomalies.

Jillaine St.Michel, an Idaho plaintiff in a lawsuit led by the Center for Reproductive Rights, was 20 weeks into her second pregnancy when her fetus was diagnosed with multiple developmental abnormalities of the organ and skeletal systems at a routine scan. It was so severe that the doctors asked St.Michel if she worked in a factory around any dangerous chemicals. She didn’t.

St.Michel had to spend three days in Seattle with her husband and 3-year-old child, which made her feel like she was doing something wrong.

“To have to go through that procedure and then go back to an unfamiliar hotel room, and have to heal and go through that process not in the comfort of your own home felt really degrading,” she said. “It felt really insulting that we had to go through that in such a demeaning way.”

Democrats in states like Wisconsin, which had a complete ban without exceptions until a recent court ruling prompted Planned Parenthood to resume its abortion services, think most Republican-proposed bills to add health exceptions are drafted in bad faith. 

“The idea of exceptions to abortion bans, it’s absolutely fake, it’s false,” said Sen. Kelda Roys, a Democratic legislator in Wisconsin. “It’s intended to do one thing, and that is to give political cover to anti-abortion politicians who realize how deeply unpopular their position is and are desperately trying to scramble to appear less extreme.”

Wisconsin Republicans proposed legislation with a health exception in March, but Democrats immediately rejected it, calling it a publicity stunt that came just a few months after Republicans nationwide performed poorly in the 2022 midterm elections. It also came a little more than two weeks before a significant state supreme court election, which Justice Janet Protasiewicz went on to win in April. Protasiewicz openly campaigned in favor of abortion rights.

Wisconsin Gov. Tony Evers, a Democrat, also vowed to veto the bill if it passed, after which the bill died. While it passed the House, Republican Senate Majority Leader Devin LeMahieu said at the time that the Senate would not hear the bill because, “This is not a topic to use as a political football.”

This story was produced by Boise-based nonprofit news outlet the Idaho Capital Sun, which is part of the States Newsroom nationwide reporting project. For more information, visit idahocapitalsun.com.