Texas Republicans in tight races open to rape and incest exceptions to abortion ban

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Some Republican candidates in competitive down-ballot races are talking about adding rape and incest exceptions to Texas’ near-total abortion ban. But the man who signed the ban into law — Gov. Greg Abbott — has repeatedly declined to say if he supports them.

In some battleground state legislative races, Republicans have said they are open to revising the ban to include the exceptions — and even voiced confidence that the Legislature will do so when it reconvenes in January. That has drawn deep skepticism from their Democratic opponents, who are mounting campaigns centered on abortion rights.

“I fully envision we’re gonna come back and tweak the current bills and make it more reasonable,” state Rep. Steve Allison, R-San Antonio, said at a candidate forum earlier this month, predicting that a proposal to add rape and incest exceptions would get a committee hearing.

State Rep. John Lujan, another San Antonio Republican, said during a recent forum that he is “almost positive” the next Legislature will consider such exceptions and that he would vote for such a bill. Adam Hinojosa, running for an open state Senate seat in South Texas, has referred to rape and incest as “commonsense exceptions that we may consider.” And Jamee Jolly, running for an open state House seat in Collin County, has suggested the need for a “conversation” next session about the exceptions.

Yet such statements are complicated by Abbott’s own reluctance to talk about the topic. He has declined to say whether he supports adding such exceptions, only saying that he wants to clarify the law’s existing exception to protect the life of the pregnant patient.

Any legislation that lacks the governor’s support is unlikely to make it far in the Legislature — he holds veto power, and the GOP majorities generally try to align with him on policy.

It is not just the battleground candidates talking about the rape and incest exceptions. Both state House Speaker Dade Phelan and Lt. Gov. Dan Patrick, who oversees the Senate, have raised the possibility of addressing the exceptions next session, with Patrick predicting there will be “a lot of discussion.” And two GOP state senators have already expressed support for at least a rape exception.

To Democrats, the Republicans’ comments are empty pre-election talk. They are noting the GOP candidates have already established anti-abortion records and are not proactively advocating for exceptions, anyway.

“It’s incredibly disappointing that my opponent refuses to commit to fighting for exemptions for rape, incest, and life of the mothers, while Texas is in the midst of a maternal mortality crisis,” Jolly’s Democratic rival, Mihaela Plesa, said in a statement. “We need a representative who will be strong in their convictions; not a representative who is only willing to have a conversation about an issue that impacts the lives of so many Texans.”

While Plesa faces Jolly, Democrat Frank Ramirez is challenging Lujan, Democrat Morgan LaMantia is up against Hinojosa and Democrat Becca DeFelice is running against Allison. All the Democratic candidates have made abortion rights central to their election campaigns.

The Republican candidates declined to comment further to The Texas Tribune on their positions.

To be clear, the exceptions in question would do little to expand abortion access in Texas given how rare it is for a woman to seek an abortion due to rape. A 2004 study from the Guttmacher Institute found that 1% of women who got an abortion said it was because they were a victim of rape, while less than 0.5% attributed their decision to being a victim of incest.

In the states that do allow such exceptions, the process to qualify can be onerous, sometimes requiring a police report or doctor’s certification. The vast majority of sexual assaults are never reported to police; for people experiencing domestic violence, it can be difficult or dangerous to report to authorities.

At least 13 states have banned abortion in most cases since the overturning of Roe v. Wade, and only a few have exceptions for rape or incest.

But the lack of exceptions has become the most discussed aspect of the abortion law ahead of the Nov. 8 election. Abbott’s Democratic opponent, Beto O’Rourke, has hammered the governor over the lack of exceptions, calling it an extremist position and often pointing to polling that shows it is deeply unpopular.

An Emerson College/The Hill poll released Monday found that two-thirds of likely voters in Texas support abortion being legal in cases of rape or incest.

The debate over exceptions extends to noncompetitive races — where it has shown how Republicans risk alienating their own party. One safe-seat GOP state senator, Robert Nichols, has said he would support a rape exception, as has another, Sen. Joan Huffman of Houston.

Nichols was the first to do so and subsequently saw the anti-abortion group Texas Right to Life suspend its endorsement of his reelection campaign. Nichols did not return a request for comment at the time.

“How politicians view exceptions reveals whether they have a consistent ethical principle motivating their pro-life views, or if its kind of a surface value,” Texas Right to Life’s president, John Seago, told the Tribune at the time.

It would be a remarkable turnaround if the Legislature revised the abortion ban in their next meeting. Virtually every Republican in the Legislature voted for Senate Bill 8, which banned nearly all abortions after about six weeks of pregnancy starting last fall, as well as House Bill 1280, the “trigger” ban that went into effect after the U.S. Supreme Court overturned Roe v. Wade in June.

One of those Republicans, state Rep. Lyle Larson of San Antonio, had a change of heart and subsequently filed a bill providing rape and incest exceptions to SB 8, but it garnered only four GOP joint authors and went nowhere. When Abbott was asked in a TV interview if he would sign the bill, he said the question was a “​​hypothetical that’s not going to happen because that bill is not going to reach my desk.”

Asked in recent media appearances about rape and incest exceptions, Abbott has been noncommittal.

Abbott has said he is instead focused on clarifying the existing exception that allows for abortions to protect the life of the pregnant patient. He has expressed concern that some doctors are declining to treat certain situations where the pregnant patient’s life is at risk.

“There’s going to be things ranging from just across the board with regard to different proposals, addressing abortion, and we’ll see what comes up,” Abbott said in a Houston TV interview earlier this month, reiterating his interest in “doing more to protect the life of the mother.”

“Those are the kinds of laws that I’m going to be looking to advance, and we’ll see where the others land.”