No-exception laws, once too harsh even for anti-abortion Republicans, gain traction across US

Republicans were largely dismissive when, in 2019, a small group of extreme anti-abortion activists called on the party to reconsider its “decades-old” view that laws restricting abortion in the US ought to exempt victims of rape and incest.

It simply went too far, the party’s House minority leader, Kevin McCarthy, argued at the time, to support absolute abortion bans that did not offer protection to women and girls who had been raped or were the victims of incest.

But there has been a sea change in Republican thinking since then.

At least 11 US states – including Alabama, Oklahoma, Missouri, Arkansas and Texas – have passed legislation that bans abortion without any such exceptions. Where Republicans once believed that absolute bans were unpalatable and “toxic” with voters, the party’s legislators have now adopted the language once promoted by the most extreme anti-abortion activists in the country who say any such exceptions are “prejudice against children conceived in rape and incest”.

“It is our view that the value of human life is not determined by the circumstances of one’s conceptions at birth,” said one letter by proponents of absolute bans. “A child conceived in rape is still a child.”

While most of the laws have been blocked by US courts for now, the expected reversal of Roe v Wade, the landmark 1973 decision that made abortion legal in the US, would almost immediately, or as soon as practical, put the bans into effect.

It means that in many states, restrictions on reproductive rights will be more extreme than they were before Roe was passed nearly 50 years ago.

“Something has changed, at least in Arkansas, and I perceive nationwide,” said Jim Hendren, a retiring state senator from Arkansas who left the Republican party after the January 6 insurrection and is now an Independent. While Hendren said he was proud of his long history as a “pro-life” legislator, he said Arkansas had – until now – also always passed legislation with rape and incest exceptions.

“The fact is, it’s a different ethical dilemma when you’re talking about a 10-year-old girl who is a rape victim being responsible for the actions of a criminal, versus someone who is responsible for their own actions,” Hendren said.

After years of “closing every other loophole”, Hendren added, “suddenly the discussion changed”.

“You get to a place where there is nothing else to do. And there is no other mechanism for these [anti-abortion] organizations that have survived and thrived by working on this issue than to continue to push into this new area,” he said.

Hendren, who noted that Arkansas had one of the worst infant mortality rates in the US, ultimately voted “present” on the bill. While he drafted an amendment that would have included a rape and incest exception in the legislation, he did not put the amendment forward for a vote. It would not have had enough support, Hendren said, because even Republican legislators who quietly supported him and “agonised” over their vote were fearful that supporting the amendment would mean they would be labeled “pro-choice” by Republican primary challengers.

Mary Ziegler, a professor at Florida State University College of Law who specialises in the history of reproductive rights, said it was difficult to judge what the exact impact of absolute abortion bans would be because so many sexual assaults and cases of incest are unreported. It was possible, she said, that the US could begin to see minors being forced to carry pregnancies to term, as has been the case in Ecuador and Argentina.

Republican “indifference” to rape and incest exceptions was “something new”, Ziegler said, and could reflect how groups that support such absolute bans no longer feel they need to “tread carefully”.

At the centre of the new movement is an advocacy group called Students for Life of America (SFLA), which has called itself one of the world’s leading grassroots “pro-life advocacy groups”. Among other legislative victories, SFLA has recently taken credit for thwarting “backdoor efforts” to weaken the Arkansas legislation.

On its website, the group emphasises its work across college campuses and includes pictures of dozens of young-looking staff members who lead the group’s outreach efforts. But tax records show SFLA is far from grassroots: it has become a financial powerhouse in the anti-abortion movement thanks to the support of wealthy donors.

Records show that the group transformed from an organisation with a budget of about $20,000 in 2004 to $12m in 2019.

It is co-chaired by Leonard Leo, the conservative lawyer who served for years at the helm of the Federalist Society and was the legal adviser to President Donald Trump, where he had extraordinary influence selecting the conservative judges – including Amy Coney Barrett and Brett Kavanaugh – who now serve as justices on the supreme court.

Leo is described in some tax records as SFLA’s principal officer, which legally means he has the “ultimate responsibility for implementing the decisions of the organisation’s governing body, or for supervising the management, administration, or operation of the organisation”.

Richard Crum, who is listed as a “financial services executive” on the group’s website and – according to LinkedIn – appears to be a top executive at CapitalOne bank, is another co-chair.

Crum did not respond to a request for comment. Other board members include the former Wisconsin governor Scott Walker and Greg Mueller, a conservative strategist and president of Creative Response Concepts, whose clients have included Leo’s Federalist Society.

While SFLA does not list its donors in its own tax records, tax filings by other groups who have donated to the organisation show that donors include: the Apollos Charitable Foundation, a Texas-based group run by the Hetland family, who previously owned a Houston-based insurer called American Financial & Automotive Services; the Prince Foundation, the Christian charity in Michigan headed by Elsa Prince, the mother of the Blackwater founder Erik Prince and his sister, former education secretary Betsy DeVos; and Gerard Health Foundation, which was founded by Raymond Ruddy, a millionaire businessman and donor to conservative causes like abstinence-only education policies. Ruddy also serves on SFLA’s board.

On its website, the group said it relied on an unnamed “angel investor” for helping it to “grow rapidly” and become the voice of the “pro-life generation”.

The group’s longtime executive director, Kristan Hawkins, did not respond to the Guardian’s questions about Leo or other board members’ role in the organisation.

Hawkins, who has said that in her “ideal world” the pill and IUDs would be “illegal”, recently praised the Oklahoma governor, Kevin Stitt, for signing a “life at conception” bill which she said was “sponsored” by SFLA and would make all abortion illegal, except in cases where a mother’s life was in immediate danger. If it survives legal challenges – which it could if Roe is completely overturned – the absolute ban would take effect on 1 August and would make performing an abortion a felony, punishable by 10 years in prison.

A separate bill signed by Stitt this week makes all abortions illegal after six weeks and takes effect immediately. Oklahoma had become a destination for women in Texas seeking abortions who were prohibited from receiving the procedure following that state’s near ban on abortion.

Additional reporting by Jessica Glenza