How do rape exceptions work?

August 21, 2012

Late Rep. Henry Hyde / University of Missouri Kansas City

The Todd Akin controversy has highlighted the divide between anti-abortion politicians like Mitt Romney who support exemptions allowing women to terminate pregnancies caused by rape or incest and those like Akin and Paul Ryan who argue that the procedure should only be allowed when a mother's life is at risk.

Most Americans fall squarely in the former camp. A 2010 poll by Virginia Commonwealth University found (pdf) only 15 percent of Americans favored banning abortion even in cases of rape and incest, and a Washington Post poll a few weeks ago found similar results. Most anti-abortion Americans, then, want a rape exemption.

But what does such an exemption look like? How would doctors and courts go about determining if a patient had been a victim of rape or incest? To understand that, it's worth looking at the Hyde Amendment: an annually-renewed provision banning federal health programs like Medicaid from funding abortions. The Hyde amendment exempts abortions where the mother's life is in danger or ones that result from rape or incest.

According to the Guttmacher Institute (pdf), 17 states choose to use state funds to pay for all "medically necessary" abortions through Medicaid, while 34 states and the District of Columbia generally only cover abortions due to rape, incest, and to protect the life of the mother. Three of those also cover abortions where the mother's health, but not life, is at risk, and two cover procedures when the fetus is developmentally impaired. South Dakota only has an exemption for the life of the mother, in violation of federal law which mandates a rape/incest exemption.

How does the Hyde exemption work? Not as intended, for one thing. A recent study (pdf) from Ibis Reproductive Health found that over half of eligible abortions — that is, of pregnancies due to rape or incest or in cases where continuing the pregnancy would threaten the mother's life — conducted for Medicaid beneficiaries were not reimbursed by the program. By and large, hospitals and doctors who did not get Medicaid reimbursements said that the paperwork for getting the money was too onerous, and it was easier to fund the procedures from nonprofit groups that focus on assisting low-income women with abortion funding.

Only 37 percent of women ended up getting eligible abortions funded by Medicaid. As a consequence, a quarter of women on Medicaid who planned on getting an abortion ended up giving birth instead, according to a study (pdf) by the Guttmacher Institute.

Those who did get it funded — only 331 in 2009, according (pdf) to Guttmacher — often had to go through a grueling process to be reimbursed. Stephanie Poggi is the executive director of the National Network of Abortion Funds, which coordinates groups that subsidize abortions for low-income women. She tells me that many states require that women submit police reports. In Iowa, for example, women must submit a police report of a rape within 45 days of it occurring and give the report to their abortion provider so she can include it in the Medicaid claim; you can see the specific paperwork here (pdf). Given that most rapes — 54 percent, according to the Rape, Abuse, and Incest National Network (RAINN) — are never reported to police, that rules out funding for a majority of women right off the bat.

Other states, such as Pennsylvania, only require a doctor's certification that the patient was raped (some require such a judgment from two doctors). Pennsylvania used to require a police report and two doctors' certifications until it lost a court case forcing it to drop those requirements. I went through the policies of all 33 states (plus D.C.) that only cover abortions in the case of rape, incest or life of the mother, and found that 21 (Alabama, Arkansas, Colorado, D.C., Florida, GeorgiaKansas, Maine, Michigan, Mississippi, Missouri, New Hampshire, NevadaNorth CarolinaNorth DakotaOklahoma, Pennsylvania, Rhode IslandSouth Carolina, Texas and Wisconsin) only require a doctor's note, while 11 (Delaware, Indiana, Idaho, Iowa, LouisianaMontanaOhioTennesseeUtahVirginia and Wyoming ) require a police report or social services agency report.

Idaho, Louisiana, Montana and Utah require either a police report or a doctor's note saying the patient was medically incapable of filing a police report; Texas and Rhode Island  only require a doctor's note but instruct doctors to tell rape victims to file a report. North Dakota accepts either a doctor's note or a police report. Kentucky and Nebraska's policies are less clear, with the former only providing forms to doctors in cases where the mother's life is in danger. And those are only the formal statutes. Ibis also found that in many states, like Mississippi, Wisconsin and Pennsylvania, that don't require police reports, Medicaid officials frequently refuse to reimburse without them anyway. "Basically these exceptions don’t work," Poggi concludes, adding, "It’s really a myth that there is coverage that is still provided."

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Brad Plumer · August 21, 2012