Trigger laws and abortion restrictions, explained

With the Supreme Court’s opinion on Dobbs vs. Jackson Women’s Health Organization issued this week, people who are able to become pregnant are now left wondering how the ruling may effect abortion-related legislation in their home state. In some states, abortion was made almost entirely illegal immediately following the court’s decision on Friday thanks to special statutes known as “trigger laws.”

In anticipation of Roe v. Wade’s reversal, more than a dozen Republican-controlled states created special trigger laws that would reinstate anti-abortion legislation that may have previously been considered unconstitutional. Several other states without trigger statutes are expected to reinstate old anti-abortion laws as well, though those are likely to face legal challenges from abortion rights advocates.

Beyond health or medical risks, there are few exceptions where these anti-abortion laws do not apply, like in cases where the pregnancy would put the individual’s life in jeopardy, or in cases of rape or incest. But many states with those exceptions require the individual to report their case to law enforcement in order to meet the requirements for the exemption.

Some states have trigger laws that will not go into effect unless certain conditions are met, like requiring a state’s chief prosecutor to sign off on a certification of the court’s decision. Other trigger laws simply don’t take effect immediately but will soon be enforced — in some states in as little as just five days’ time.

Which states have trigger laws on near-total abortion bans?

Three states — Kentucky, Louisiana, and South Dakota — had statutes already on the books that allowed for bans or near-complete bans on abortion to take effect immediately following the Supreme Court’s overturning of Roe v. Wade. None of these states make an exception for abortion in cases of rape or incest. Six other states with trigger laws have also had their bans or near-complete bans on abortion swiftly implemented. There are a total of 13 states with trigger laws, though their scopes vary and so do their implementation.

As of this writing, there are six states with trigger laws that are currently in effect. In Arkansas, Missouri, and Oklahoma, the trigger laws became active after the Supreme Court’s decision was certified by the respective states’ attorneys general. Many Republican officials hailed the Supreme Court’s decision as a celebratory milestone for so-called pro-life conservatives. Missouri Attorney General Eric Schmitt, who was the first AG to sign such a certification in the wake of the Dobbs ruling, rejoiced in the opportunity.

“My office has been fighting to uphold the sanctity of life since I became attorney general, culminating in today’s momentous court ruling and attorney general opinion,” Schmitt said in a statement. “I will continue the fight to protect all life, born and unborn.”

Abortion bans or near-complete bans in other trigger law states are expected to take effect within a certain time period (typically within 30 days) after actions from state officials. In North Dakota and Tennessee, anti-abortion laws will take effect within a month after the court’s decision is certified by the respective states’ Attorney Generals. Mississippi, another trigger law state where the court’s decision needs to be certified by the attorney general, has a shorter grace period of its law taking effect just 10 days after certification.

Idaho’s trigger law will kick in 30 days after the court’s official opinion is published — which is expected in about a month — enacting a near-complete ban on abortion in the state with the exceptions of cases of medical emergencies, rape, and incest. Texas’s trigger law will take effect 30 days after the court issues a judgment, not just an opinion. Texas Attorney General Ken Paxton clarified that the official judgment should be issued after an appropriate time period in which any appeals can be filed.

Wyoming and Utah are also trigger law states with anti-abortion legislation ready to be reactivated. Wyoming’s trigger law will take effect five days after the court decision is certified by the state’s governor, Mark Gordon, who described the Supreme Court’s Dobbs ruling as “a decisive win for those who have fought for the rights of the unborn for the past 50 years.” In Utah, the trigger law will take effect once the court decision is certified by the state’s legislative general counsel, which is expected in the next days or weeks. Utah’s law will ban nearly all abortions except in cases of rape and incest, but only if reported to law enforcement. Utah’s law also allows an exception for cases in which a baby would have severe birth defects and if a pregnancy puts the individual’s life at risk.

Abortion laws remain uncertain in some states, including those where abortion is still legal

Outside of the 13 states that hold trigger laws, there are eight others that already had abortion bans or near-total bans on the books: Alabama, Arizona, Georgia, New Hampshire, Ohio, South Carolina, West Virginia, and Wisconsin.

The abortion laws in these states were either rendered invalid after federal abortion protections were established through Roe v. Wade, or they were enacted post-Roe and challenged in court. That means these anti-abortion laws could still face further legal hurdles — they may be suspended through a judge’s stay as the law’s merits are settled in court, preventing these laws from being enacted. With Roe v. Wade overturned, laws around abortion essentially sit in limbo in many of these states.

In Alabama, for example, there are two separate anti-abortion laws on the books. One was enacted before Roe v. Wade was decided and the other was passed post-Roe. Both laws are near-total abortion bans with an exception only when it is necessary to save the pregnant individual’s life. The old law, which dates back to the 1950s, criminalized abortions, with birthing people who undergo the procedure facing a maximum fine of $1,000 and up to 12 months in jail. The more recent law — passed by lawmakers in 2019 and later blocked by a court — may take effect again soon but the timeline on that is unclear.

Similarly, a near-total abortion ban is expected to take effect in West Virginia through its existing anti-abortion law, which dates back to the 1800s. It will likely be revived but it’s still unclear how and through what specific legal mechanisms that will happen. Recently, voters in West Virginia approved a state constitutional amendment specifying that “nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”

We can expect to see further anti-abortion laws flourish in the next few years; Republican lawmakers across the country have expressed their desire to pursue the strictest anti-abortion policies possible in their respective states. Among them is Arkansas State Sen. Jason Rapert, who sponsored the state’s trigger law in 2019.

“It’s a good day for Arkansas but our work is not done,” Rapert said on Friday. “The NACL [National Association of Christian Lawmakers] has committed that we are going to seek the abolishment of abortion in every state in this country because just like Abe Lincoln said, ‘we cannot continue as a house divided.’”

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