Since the draft Roe v Wade opinion leaked (published on Politico the night of May 2nd), there has been constant news coverage examining if this currently federally protected right will continue to provide protection to all Americans. This week, we'll take a closer look at "trigger" laws, which states have Roe v Wade trigger laws, and what this could mean for Americans.
Where does abortion law currently stand?
States have not only passed laws to restrict or ban abortion should Roe v Wade be overturned, but also laws that protect the right to have an abortion. Here is a map from the Guttmacher Institute and US News showing what current state abortion limits are since the right to have one is still federally protected:
Although many argue restrictions only allowing abortion up to 6 weeks are essentially a ban, no state is currently allowed to have an enforceable ban on abortion. If Roe v Wade is overturned, that all changes. Here is a map of what abortion polity could look like in the absence of Roe also from the Guttmacher Institute and US News. Many "Ban Certain" states are notated as such because they have trigger laws.
What is a "Trigger" Law?
trig·gered /ˈtriɡərd/ (of a response) caused by particular action, process, or situation.
"Trigger" laws are laws designed to not be enforceable upon their initial approval, but, given the right changes in circumstance, would be "triggered" and become enforceable.
The 1973 decision of Roe v Wade changed the way laws related to abortion access were enforced. Before the decision, abortion regulation and enforcement was left up to states. The Roe v Wade decision ruled that abortion access was a right protected by the United States Constitution.
According to an initial draft majority opinion written by Justice Alito, the United States Supreme Court has voted to strike down Roe v Wade. The document released was labeled a “1st Draft” of the “Opinion of the Court” in Dobbs v. Jackson Women’s Health Organization, a case challenging Mississippi’s ban on abortion after 15 weeks. If this decision is overturned by the US Supreme Court, control of abortion access returns to the states. Existing trigger laws around the nation would immediately become enforceable and restrict, ban, or protect abortion in their state.
Another common tigger law relates to Medicaid expansion and funding.
Which states have passed Trigger Laws to restrict/ban abortion?
If this draft does accurately reflect the court's decision, abortions will immediately become illegal in 13 states. There are two different types of trigger laws that would go into effect should this become reality. First, trigger laws passed since Roe v Wade went into effect in 1973 to restrict or ban abortions. Second, laws on the books prior to Roe v Wade (that is, prior to 1973) that ban abortion. If Roe v Wade is stricken down, these existing abortion bans would once again be in effect.
According to the Guttmacher Institute, nine states have abortion laws predating Roe v Wade: Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, Texas, West Virginia, and Wisconsin. Thirteen states (some overlap) have passed trigger laws which would go into effect the moment Roe v Wade is overturned: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.
Overview of the abortion ban trigger laws
The Arkansas Unborn Child Protection Act, signed in 2021, makes attempting to perform an abortion a felony punishable by up to 10 years’ imprisonment and a fine of up to $100,000, except to save the life of a pregnant woman in a “medical emergency.”
Idaho's bill makes providing abortions a felony punishable by up to five years in prison. Exceptions are provided to prevent the death of the pregnant person or in the case of rape or incest. Kentucky's 2019 bill and the Missouri Stands for the Unborn Act are similar to Idaho's, providing very limited exceptions to prevent the death or serious injury of the person giving birth. Utah and Wyoming's laws are similar.
South Dakota's 2005 ban would become effective “on the date states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy.” North Dakota's similar 2007 ban would go into effect “as a result of new decisions by the Supreme Court of the United States” that would make the provision constitutional.
Mississippi law prohibits abortions in the state "within 10 days after" the state attorney general confirms Roe has been overturned. Tennessee's law would go into effect 30 days after Roe is struck down and would prohibit all abortions except those that would prevent the death of the mother.
In June 2021, Texas signed a bill that makes abortions illegal unless the pregnant person’s life is threatened or they are at risk of serious injury. This bill has the same enforcement timeline as Tennessee's bill.
Oklahoma has signed two bills this year. In April, a bill making performing abortions illegal in Oklahoma, with only one exception to save the life of the pregnant person, was signed. Performing an abortion or attempting to perform one would be a felony punishable by a maximum fine of $100,000 or a maximum of 10 years in state prison, or both. The second bill sets a timeline for provisions to go into effect, depending on how the Supreme Court rules.
Louisiana has passed 89 abortion restrictions since Roe v Wade. This year, Louisiana is making news with a bill, the Abolition of Abortion in Louisiana Act, that would abolish abortion in the state, grant constitutional rights to "all unborn children from the moment of fertilization", and classify abortion as a homicide crime.
Just last month, a trigger law in Nebraska failed by just two votes after an eight-hour filibuster.
A deep dive into Illinois
Illinois is an interesting state to look at when talking about trigger laws. In 1975, Illinois passed the Illinois Abortion Law of 1975, which included a “trigger” provision should Roe v Wade ever be overturned. In 2017, the state repealed this law with HB40. HB40 addressed three major abortion issues:
- Remove restrictions making it difficult for women enrolled in Medicaid to access contraception and abortion
- Reestablish abortion as a benefit of the Illinois state employees’ health plan
- Amend the Illinois Abortion Law of 1975 to ensure the continued legality of abortion in the state should Roe v Wade be overturned by a reconstituted Supreme Court
This bill included the following language: "It is the intention of the General Assembly of the State of Illinois to reasonably regulate abortion in conformance with the legal standards set forth in the decisions of the United States Supreme Court of January 22, 1973."
The bill removed the following language: "Without in any way restricting the right of privacy of a woman or the right of a woman to an abortion under those decisions, the General Assembly of the State of Illinois do solemnly declare and find in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child's right to life and is entitled to the right to life from conception under the laws and Constitution of this State."
It also removes this language: "Further, the General Assembly finds and declares that longstanding policy of this State to protect the right to life of the unborn child from conception by prohibiting abortion unless necessary to preserve the life of the mother is impermissible only because of the decisions of the United States Supreme Court and that, therefore, if those decisions of the United States Supreme Court are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions unless necessary for the preservation of the mother's life shall be reinstated."
Illinois took their legalization of abortion even further in 2019 when they passed the Illinois Reproductive Health Act. SB25 declares reproductive health care (including abortion, contraception, sterilization, and pregnancy and maternity care) a fundamental right in Illinois. The protections in the law took effect immediately. Other key protections outlined in the bill include:
- Require all public and private health insurance plans to cover abortion alongside other pregnancy-related services
- Allow advanced practice nurses and physician assistants to provide abortions
- Repeal outdated, unenforced laws that criminalize abortion
- Revise Illinois' postviability abortion law to allow abortions later in pregnancy when medically necessary without a second physician’s approval
Have states passed laws to protect the right to have an abortion?
Yes. Most states have passed some type of legislation that allows for "legal" abortion up to some point in time. This legislation usually ranges from allowing abortions from 6 weeks to 24 weeks depending on the state. Should Roe v Wade be overturned, the "legal" abortion laws would become unenforceable in favor of the tighter restrictions/bans in states with trigger laws. Other states have passed legislation to protect the right to abortion should Roe v Wade be overturned.
Overview of some abortion protection legislation
In 1990, voters in Nevada guaranteed a right to a legal abortion until 24 weeks of pregnancy by referendum. This law, codified in NRS 442.250, cannot be changed or repealed in Nevada unless voters pass a referendum to change or repeal it.
In 2002, the California State Legislature passed a law that said: "The state may not deny or interfere with a woman's right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman."
Oregon passed the Reproductive Health Equity Act in August 2017. This bill required insurance providers to cover abortion costs for all women and guaranteed that the state will cover costs for people covered by Medicaid or who are uninsured, including those living in the U.S. without legal documentation. This bill also enshrined the right to abortion care in state law.
On June 10, 2019, Vermont signed a law making abortion a fundamental right under state law. Abortions are legal at any stage of pregnancy for any reason. Washington passed a bill in March of this year which clarifies the language of current law to ensure that qualified abortion providers have the legal protection of the law.
This year, Colorado passed the Reproductive Health Equity Act, or HB 1279, after just under 24 hours straight of debate. This bill guarantees access to reproductive care before and after pregnancy and bans local governments from imposing their own restrictions. “In the State of Colorado, the serious decision to start or end a pregnancy with medical assistance will remain between a person, their doctor and their faith,” Colorado Governor Polis said in a statement.
Where does 'viability' come in?
Many states (Connecticut, Delaware, Hawaii Idaho, Indiana, Maine, Maryland, Michigan, Minnesota, Montana, Pennsylvania, Rhode Island, Utah, Washington, and Wyoming) have laws that state abortions are legal up until viability.
Viability is generally defined as when a fetus is capable of surviving outside of the womb (usually at 24 weeks), but this definition is not finite and leads to confusion. Idaho, Utah, and Wyoming do have abortion ban trigger laws in place.
The Women's Health Protection Act
On May 11th, the Senate failed to advance a Democratic-led bill meant to enshrine broad protections for legal abortion for all Americans, the Women's Health Protection Act. This bill, introduced by Senator Richard Blumenthal in on May 3rd, 2022, aimed to protect abortion access nationwide by creating a statutory right for health care providers to provide, and a corresponding right for their patients to receive, abortion cae. If passed, abortion would be free from restrictions and bans.
The bill did not pass, as expected, after it did not reach the Senate 60-vote threshold. A 2021 version of the bill was passed in a historic vote by the U.S. House in September 2021.
Conclusion / My Thoughts
prec·e·dent. noun /ˈpresəd(ə)nt/ Precedent refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar legal issues.
Roe v Wade is precedent. It is settled law. The law of the land. Neil Gorsuch and Brett Kavanaugh are co-authors of a whole book on precedent. These Supreme Court justices should respect and honor not only their words, but precedent.
If these laws go into effect, millions of people would be barred from having an abortion. Congress cannot come together to pass the most simple of legislation, they are not going to 60 votes to overcome a Senate filibuster to enshrine this right. If this is the way it is going to be, get rid of the filibuster.
We have already seen a little of how his is going to play out across the states.
- Governor Kristi Noem tweeted she will “immediately call for a special session to save lives and guarantee that every unborn child has a right to life in South Dakota” if Roe v Wade is overturned.
- California Senate President pro Tempore Toni G. Atkins, Assembly Speaker Anthony Rendon, and Governor Gavin Newsom said they will pursue a state constitutional “amendment to enshrine the right to choose in our state constitution so that there is no doubt as to the right to abortion in this state”.
- Michigan’s attorney general has said she will not enforce the state’s 1931 law banning abortions if Roe v Wade is overturned. But, the state’s 83 local county prosecutors would be able to enforce the law if they chose to within their county.
I remember thinking to myself back in 2019 when I wrote the blog about the Illinois Reproductive Health Act, it was strange Illinois felt it needed to pass legislation that legalized abortion on the state level because we had Roe v Wade to protect that fundamental right. Years later, it's a much different world we're living in. Today, I am proud of my home state, Colorado, for the immense work our legislative body put into passing a bill similar to the Illinois Reproductive Health Act, the Reproductive Health Equity Act.
I am also scared for people who do not live in a state like Colorado or Illinois. I am scared of what this means for all people impacted by pregnancy in the United States. The original Roe decision acknowledged the fact that making people carry and raise unwanted children could “force upon” women “a distressful life and future.” That is still so true today. With decades of research on how unwanted pregnancies can affect women’s education, employment, and earning prospects, it is a known fact we do not have infrastructure in place to both allow all people who want to have children to have them, and to be able to provide the life they want for them. Also, not everyone who gets pregnant wants to have a child. And that's okay.
We cannot ban abortion. We can only ban safe abortion. Abortion bans disproportionately impact lower income individuals. Outlawing abortion will not stop abortion. This is wrong. This is awful. This is not precedent. We need to protect the right to abortion in the United States.
We must keep abortion legal.
Cover Photo by Gayatri Malhotra on Unsplash
About BillTrack50 – BillTrack50 offers free tools for citizens to easily research legislators and bills across all 50 states and Congress. BillTrack50 also offers professional tools to help organizations with ongoing legislative and regulatory tracking, as well as easy ways to share information both internally and with the public.