Republicans Are Divided Over How Extreme to Make Their New Abortion Bans

After the fall of Roe v. Wade, the new abortion landscape in America may be shaped less by advocacy from the left than by disagreements on the right.

Some Republicans are pushing for abortion bans without exceptions for rape or incest, while others are backing away from the most hardline bills. Others are trying to strike a balance by selling what used to be seen as aggressive measures—like bans on abortion after 15 weeks—as the new middle ground in light of the no-exceptions bans.

In Congress this week, Sen. Lindsey Graham, a Republican from South Carolina, introduced a national 15-week abortion ban to the surprise of many of his colleagues. In West Virginia, Republican state lawmakers reached a compromise on limited exceptions to a near-total abortion ban after deadlocking in July over the details of a similar ban. These developments came just days after South Carolina lawmakers hotly debated a near-total abortion ban only to abandon the legislation because they, too, couldn’t agree on which exceptions to include.

These bills are the result of messy arguments about difficult moral, legal, political, and practical questions that many lawmakers had previously only considered in theory. Should rape and incest victims be exempted from abortion bans? What about people with lethal fetal anomalies? Should the government impose jail time on doctors and other medical providers who violate abortion bans? How should Republicans factor in the brewing public backlash to these laws as the midterm elections approach and the issue is now top of mind for many voters?

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Some of these fights have stalled bills like in South Carolina, but in other instances has led lawmakers to adopt conflicting or unpopular positions as they seek to navigate the many competing interests. After it dropped the total ban, the South Carolina senate settled on a more restrictive version of the six-week ban already on the state’s books and temporarily blocked by the courts. At the federal level, Graham’s bill is less strict than a national six-week ban that some anti-abortion groups had been lobbying lawmakers to pursue. His 15-week proposal includes exceptions for life-threatening pregnancies, and for cases of rape and incest if the patient receives counseling, treatment or reports the incident to law enforcement—a compromise that some conservatives decried as too strict, and others complained didn’t go far enough. And in West Virginia, which became the second state to pass a sweeping abortion ban since the fall of Roe v. Wade when the legislature approved its new bill on Tuesday, lawmakers landed on narrow exceptions for medical emergencies, nonviable pregnancies, and for rape and incest, if the patient reports the crime to law enforcement.

The debate and compromises in West Virginia reflect discussions happening on the right all over the country. The bill won over West Virginia senate majority leader Tom Takubo, a Republican, who over the summer refused to support the near-total ban without rape and incest exceptions. Takubo, who is an osteopathic physician, amended the ban so that doctors would not face criminal charges if they violate it but could lose their medical licenses (though other providers like nurses or people who help with abortions could still face criminal charges and jail time). But others, like Republican state sen. Eric Tarr, opposed the final legislation because they thought it allowed too many exceptions. “This bill will save a lot of lives in West Virginia,” Tarr said on the senate floor. “But I’m also torn and disappointed that my vote now is to decide when do you execute an innocent?”

As Republicans debate these policies and settle on different compromises, they’re deciding for the first time since the 1970s what abortion looks like in America without a guaranteed right to the procedure. How they settle these debates will not only determine what health care pregnant people receive, but also shape a complicated tangle of laws that affect a wide variety of other medical care and economic realities for millions of families across the country.

Public backlash to strict abortion bans

Polls consistently show that severe abortion bans are very unpopular. Large majorities of Americans believe abortion should be legal in at least some circumstances. A Pew Research Center poll in March found that 69% of Americans, including 56% of Republicans, said abortions should be legal when the pregnancy is the result of rape.

When the Supreme Court struck down the national right to abortion in June in Dobbs v. Jackson Women’s Health Organization, it triggered a cascade of abortion bans across the country. Thirteen states are now enforcing near-total abortion bans, and others are tied up in litigation.

But Republicans are already dealing with public pushback. Voters in Kansas resoundingly rejected a ballot measure in August that would have taken protections for abortion rights away from the state’s constitution, and special election candidates in New York and Alaska who campaigned on abortion rights won their races. The Republican National Committee issued a memo on Sept. 13 that acknowledged 80% of voters are “not pleased” with the Supreme Court’s decision and advised candidates to “speak with compassion” and “stakeout common ground with the majority of American’s [sic] who support exceptions.”

The public outcry is contributing to Republicans’ shifting stances and forcing changes to some legislation. In South Carolina, Republicans had proposed a bill banning abortion starting at fertilization with no exceptions, but a small group of lawmakers, including the state senate’s three GOP women, said they would not support the legislation without exceptions for rape and incest. After seeing they would not have enough votes to pass the total ban, senators dropped it and instead added restrictions to the state’s six-week ban.

Republican state sen. Sandy Senn, who opposed the total ban, told TIME she received thousands of messages from South Carolinians saying they did not want Republicans to pass the legislation. She predicted that the extreme laws would lead women to vote on abortion in November and challenge anti-abortion lawmakers in the future. “You’re going to see women actually go ahead and vote single issue politics,” she says. “And what you’re going to see is more competition. My colleagues are so worried about getting a competitor from the right because my state is so rightwing that they are overlooking getting a female competitor, and that’s going to be a real threat to them.”

Earlier in the summer, a similar debate took place in West Virginia. When legislators initially convened for a special session in July, citizens, many of whom opposed the abortion ban, flooded the state capitol. Abortion rights supporters still expected Republicans to quickly pass a new ban, but when lawmakers couldn’t agree on which exceptions and penalties to allow, they adjourned for the month of August without new legislation. “We pressured them, and people power really helped stall it. We rattled them,” says Alisa Clements of Planned Parenthood South Atlantic, who was in the West Virginia capitol in July and this week. The delay in new legislation meant the state’s only abortion clinic could continue seeing patients for more than another month— before it stopped providing abortions this week after the legislature passed the new ban.

Shifting messaging on abortion

The heightened scrutiny and new legal reality around abortion has also led some Republicans to re-evaluate where they stand on downstream issues like emergency contraception.

Earlier this month, South Carolina state rep. Doug Gilliam said a hypothetical 12-year-old rape victim would have “choices” even under the proposed ban that did not include rape or incest exceptions because she could get a morning after pill “that’s available at Walmart.” Texas Gov. Greg Abbott also recently pointed to emergency contraception as a solution when asked about the lack of exceptions in his state’s abortion ban. “We want to support those victims,” Abbott said, according to the Dallas Morning News. ​​“By accessing health care immediately, they can get the Plan B pill that can prevent a pregnancy from occurring in the first place.”

These responses reveal a gap between Republican politicians seeking to assuage voters and some anti-abortion activists, who have long opposed emergency contraception because they view it as tantamount to an early abortion. Students for Life, a group that is gaining influence in state legislatures and on Capitol Hill, opposes emergency contraception, for example, as well as rape and incest exceptions. Kristi Hamrick, a spokesperson for Students for Life, said it’s not surprising that lawmakers are still figuring out their positions on abortion bans and exceptions at this point after the end of Roe. “We’re going to have to educate people. We need to talk with legislators, we need to talk with people, we need to explain what kind of services are available, what kind of help people are going to need,” she says. “It is going to be a conversation and an active education ongoing for us in the pro-life movement.”

As the right negotiates its new positions and observes the effect of more states implementing abortion bans, real women and families are caught in the middle. “There’s a lot of disagreement about what personhood means or what a right to life is that you see the movement having to figure out in part because they hadn’t had to before,” says Mary Ziegler, a University of California, Davis law professor who specializes in the history of abortion. “Actually figuring out what you were going to be for when the bill could go into effect versus just be a vehicle for challenging Roe is a completely different story for a lot of legislators.”