‘Trigger Laws’ in Some States Would Ban Abortion Immediately If Roe is Overturned

A protest in front of the Supreme Court in 2016.

A protest in front of the Supreme Court in 2016. Shutterstock

 

Connecting state and local government leaders

The country already has a patchwork of different restrictions on abortion. How would that change in a post-Roe world?

When Amy Coney Barrett was confirmed to the U.S. Supreme Court in October, many legal analysts began speculating about what might happen when the now solidly conservative court considers an abortion case that could overturn Roe v. Wade. Some argued Barrett’s confirmation was a “death knell” for reproductive rights, while others said her adherence to legal precedent means it isn’t clear that she would back a wholesale overturning of Roe.

One thing everyone agreed on: Barrett’s addition to the court certainly increases the chance of overturning or weakening the landmark 1973 decision finding that abortion access is a constitutional right. If the court does throw out Roe, ten states, including Arkansas, South Dakota, and Missouri, are waiting in the wings with laws known as “trigger bans”—legislation already on the books that makes abortion illegal in the event of a Supreme Court decision overturning Roe. 

State lawmakers first began debating these trigger laws during legislative sessions in 2005 and 2006 and have picked them up again in the past two years. The measures were likely designed as a way for states to pass legislation showing they did not support abortion without inspiring litigation that would cost them money, said Elizabeth Nash, the associate director of state issues at the Guttmacher Institute, an abortion rights research organization.

Some would go into effect immediately if Roe is overturned, while others have a 30-day waiting period. A few require the state attorney general to do a certification process. “All these steps can happen relatively quickly,” Nash said. “We’re talking weeks, not years.”

In that immediate post-Roe world, legal abortion access would effectively end for people living in the deep South and parts of the Midwest, where the trigger bans are clustered. An additional seven states have pre-Roe bans on abortion that could go into effect through a legal process called revival or if a prosecutor in the state tries to enforce the old statute in a post-Roe world. Thirteen states and the District of Columbia have laws that protect the right to abortion and might see a surge in people crossing state lines to access providers—but the challenge for many women, especially women of color, young adults, and low income women, will be getting there at all.  

“We’re not talking about going to the next state, we’re talking about crossing two or three states to access abortion, from Louisiana all the way up to Virginia. That’s a pretty substantial undertaking,” said Nash. “In a lot of states, abortion access is already extremely limited and the meaning of Roe is gone already. That’s the reality. Certainly if it were to be overturned, that reality spreads.”

Caitlin Knowles Myers, an economist at Middlebury College who has studied the potential impacts of overturning Roe, said that to picture what this new world would look like, just take a look at the past. In 1972, the year before Roe became the law of the land, New York was one of the few places women could get a legal abortion. Over 100,000 women came to New York City from other states that year to get an abortion. Some doctors in the state offered an abortion bundle that included the price of a flight. “It’s an interesting historical perspective,” Myers said. “Overturning Roe could return power to the states in the same way.”

But that’s all if Roe is completely dismantled. Most experts agree that—while noting they are purely speculating about a court largely untested in this legal arena—it’s more likely the Supreme Court will take a piecemeal approach when considering new restrictions on abortion. Melanie Israel, a researcher with the DeVos Center for Religion and Civil Society at The Heritage Foundation, a conservative think tank, pointed out that Clarence Thomas is the only justice who has explicitly said the court should overturn Roe. “For all the talk about how conservative the court is, that doesn't automatically mean there’s five or six votes,” she said. “We also have to look at the specific cases winding their way to the court. Historically speaking, we haven’t seen an appetite for an abortion case every single term … but there’s been a recent wave of pro-life laws at the state level that spur these lawsuits.”

There are 18 cases that could make it to the Supreme Court and impact Roe, according to data compiled by Planned Parenthood. They include challenges to a Mississippi law that would impose a 15-week ban on abortions, Texas and Kentucky laws that would ban an abortion procedure commonly used after sixteen weeks of pregnancy, and a Louisiana law that would people from seeking an abortion after learning the fetus is diabnosed with Down syndrome.

A decision in one of these cases that restricts access to abortion, but doesn’t actually overturn Roe, likely wouldn’t trigger a state ban, even though some of the state measuressay they go into effect if Roe is overturned “in whole or in part.” More likely, states could take a narrow court ruling—like one that would allow Louisiana to ban abortions for a Down syndrome diagnosis—and use it to pass broader restrictions. This could mean, for example, passing a “reason ban” on all abortions for fetal diagnoses or sex because a state assumes that the “entire category has been blessed by the Supreme Court,” said Jessica Arons, the senior advocacy and policy counsel for reproductive freedom at the ACLU.

Some state legislatures might simply re-introduce laws that were rejected by lower courts in recent years. One example could be bans on allowing advanced practice clinicians (like nurse practitioners) to perform abortions, which have been struck down in states like Montana, and requirements that abortion providers meet the same requirements as ambulatory surgical centers that have been struck down in states like Louisiana and Texas.

These types of “supply side” restrictions that affect clinics make providing abortions more costly—and evidence from places like Texas proves that when costs get too high, providers close their doors. “Anytime states pass these restrictions, what you’re going to see is fewer providers in rural areas in particular, and a smaller number of providers in big cities,” Myers said. 

As clinics close, costs also go up for abortion seekers who have to travel longer distances to find care. The cost of gas or a plane ticket, childcare, and time off work could add up to several hundred dollars, or even reach into the thousands. (These costs all increase if the closest clinic is in a state with “demand side” restrictions like a mandatory waiting period between a consultation and the abortion procedure.) Whether abortion seekers will be able to absorb those costs is unknown. “If Roe is overturned, we know a large number of women in affected areas aren't going to be able to reach a provider,” Myers said. “What we don't know is what they do next.”

There isn’t nearly as much data or analysis on what happens when women want and can’t get an abortion. Some may end up giving birth, some may attempt to self-induce, and some may turn to black market providers. An area of increasing interest to researchers is whether women will turn to online pharmacies for abortion pills—something that is already starting to happen in states with tighter restrictions (or, as in Texas, women on the border have turned to Mexican pharmacies). States that want to stop online pill sales face an uphill battle preventing drug shipments from unlicensed, foreign providers.

President-elect Joe Biden, who during his campaign vowed to “codify” Roe and “stop the rash of state laws that so blatantly violate Roe,” might try several strategies at the federal level to increase abortion access. He might push for the Women’s Health Protection Act, a bill co-sponsored by Vice President-elect Kamala Harris that would limit the abortion restrictions states can implement, or establish federal preclearance rules to screen state abortion laws as the federal government did for voting laws after the passage of the Voting Rights Act. But Nash noted that “it will be difficult to keep states from banning abortion if [the Supreme Court] allows them to do so.”

“It’s up to each state to see what the lay of the land would look like,” said Israel, with Heritage. “We’ve seen so many pro-life laws at the state level in the last decade, and that’s happening because people are consistently electing those legislators to office. They’re not pumping the brakes.” 

And during all this, of course, there are some states moving in the opposite direction, passing constitutional amendments that guarantee a right to abortion should federal rights disappear. This is primarily happening on the West Coast and in the Northeast, but also in states like Virginia and Illinois. “We can’t overlook the importance of state constitutions,” said Arons with the ACLU. “The constitutional rights afforded under the federal constitution are a floor, not a ceiling.”

Emma Coleman is the assistant editor for Route Fifty.

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