Trigger Laws + Codifying Roe
What does any of it actually mean?
Two of our recent guests, Katie from Mountain Access Brigade and Stephanie Kraft Sheley, JD, MHA of Right By You mentioned trigger laws/bans in our conversations about abortion access Post Roe. I don’t know about you but legal lingo isn’t always something I feel versed in so here’s an understanding of trigger laws, a brief understanding of the current states with trigger laws, as well as explanation of what it means when folks say to “codify” Roe v Wade. Reminder, I’m no lawyer so this will be the non-lawyer explanation (lol).
What is a trigger ban?
A trigger law is a nickname for a law that is unenforceable but may achieve enforceability if a key change in circumstances occurs. In this case, laws making abortion illegal immediately in specific states would become enforceable immediately or 30 days after Roe is overturned.
What states would be affected immediately if Roe is overturned?
Source: New York Times
According to CNN, there are 13 states that would establish trigger laws immediately or within 30 days of Roe being overturned.
Arkansas
Arkansas has a law on the books that would ban nearly all abortions in the event that Roe is overturned, except for in the case of a life-threatening medical emergency. A medical provider who violates the law could face up to 10 years in prison, a fine of up to $100,000 or both.
Last year, a federal judge blocked another bill passed by state legislators which aimed to block nearly all abortions and made no exceptions for rape or incest.
Idaho
Idaho’s trigger ban would make providing abortions a felony punishable by up to five years in prison if Roe is struck down. Exceptions are provided to prevent the death of the pregnant person or in the case of rape or incest.
Little has signed onto an amicus brief in a case before the U.S. Supreme Court that could overturn the court's landmark 1973 ruling that legalized abortion nationwide. The Republican governor on Thursday, July 29, 2021, joined Republican governors from 11 other states in supporting a Mississippi law that would ban abortion at 15 weeks.In March, Idaho legislators passed a separate bill modeled after Texas’ restrictive law, which prohibits abortion once fetal cardiac activity can be detected, which can happen as early as six weeks. The law also allows family members of the fetus to sue the medical provider who performed the procedure.
The ban was temporarily blocked by the state Supreme Court last month after abortion providers challenged it in a lawsuit.
Kentucky
Kentucky’s legislature passed a bill in 2019 which would ban abortions and make performing them a felony offense if the Supreme Court overturns Roe. Very limited exceptions would be provided to prevent the death or serious injury of the person giving birth.
Louisiana
Louisiana has a law in place that would ban a medical provider from performing an abortion procedure or providing drugs intended to induce an abortion in the case that Roe is overturned. The ban would not apply to life-threatening or serious medical emergencies, but requires the physician makes “reasonable medical efforts” to preserve the life of the adult and the fetus.
Mississippi
Mississippi law states that within 10 days of the state attorney general confirming Roe has been overturned, abortions are prohibited in the state. Limited exceptions are provided in cases of rape or when the procedure would preserve the mother’s life.
Mississippi passed a separate 15-week abortion ban in 2018, which is the source of the case currently in front of the Supreme Court. The court is expected to announce its decision in June, but a draft opinion revealed by Politico suggests a majority of the justices may be poised to strike down Roe.
Missouri
Missouri approved a law in 2019 that would make it a felony for medical providers to perform or induce an abortion except in cases of medical emergencies if Roe is struck down.
North Dakota
A law approved by the North Dakota legislature in 2007 would ban abortion and make it a felony to perform the procedure except in cases when it would save the life of the mother. The law would go into effect “as a result of new decisions by the Supreme Court of the United States” that would make the provision constitutional.
Oklahoma
Oklahoma Gov. Kevin Stitt signed a bill last month that would make performing abortions illegal in the state, only allowing exceptions to save the life of the pregnant person. The measure makes performing an abortion or attempting to perform one a felony punishable by a maximum fine of $100,000 or a maximum of 10 years in state prison, or both.
A second bill signed into law last week sets a timeline for provisions to go into effect, depending on how the Supreme Court rules.
South Dakota
South Dakota has had a trigger ban on the books since 2005, when a law was passed to set up an almost outright ban on abortions in the event that Roe is overturned. The law would make it illegal to perform an abortion except in life-threatening medical emergencies and 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.”
Tennessee
Tennessee law contains a provision that would prohibit all abortions except those that would prevent the death of the mother and would go into effect 30 days after Roe is struck down. Medical providers could be charged with a felony for violating the law.
Texas
Texas’ so-called trigger ban was signed into law in June 2021 and would make abortions illegal unless the pregnant person’s life is threatened or they are at risk of serious injury. The law would go into effect 30 days after the Supreme Court issues a judgment overruling Roe.
Utah
Utah passed a law in May 2020 banning almost all abortions if Roe is overturned. Exceptions include cases of rape or incest, detection of severe birth defects, or prevention of the death or serious injury of the person giving birth. Performing an abortion in violation of the law is a second-degree felony.
Wyoming
Signed into law last month, Wyoming’s bill added a provision that would make it illegal to perform an abortion if Roe is overturned, with extremely limited exceptions for cases of sexual assault, incest, or the risk of death or severe injury to the person giving birth.
What does it mean to codify Roe v Wade?
“In simple terms, to codify something means to enshrine a right or a rule into a formal systematic code. It could be done through an act of Congress in the form of a federal law. Similarly, state legislatures can codify rights by enacting laws. To codify Roe for all Americans, Congress would need to pass a law that would provide the same protections that Roe did – so a law that states that women have a right to abortion without excessive government restrictions. It would be binding for all states.”
- The Conversation
When a law gets codified, it essentially takes it out of the judicial branch and places it in the legislative branch. It becomes a protected law that gets filed in a system called the US Code. Codifying Roe is something that has been a platform component of many Democratic politicians over the years, such as with the introduction of the Women’s Health Protection Act.
Some states have opted to codify abortions rights on a state level to ensure birthing people’s rights and protect access to safe and legal abortion. In order to codify Roe on a national level, legislation would need to be passed that retains the protections that Roe afforded birthing people in this country. Doing so would require enough votes to push the legislation through, so the outcome of midterm elections is crucial. Right now, it would appear that the votes would fall short.