The legal battle for reproductive rights is heating up in the wake of harsh new anti-abortion laws, and several states are already preparing for the potential end of Roe v. Wade.
In seven states, so-called “trigger laws” would ban abortion immediately if the Supreme Court overturns the landmark 1973 court decision that established access to a safe abortion as a constitutional right. A number of other states, including Oklahoma and Texas, are considering implementing similar laws. These laws are written to immediately go into effect upon either the high court decision or a separate constitutional amendment granting states the power to prohibit abortions.
Some states also have pre-Roe bans on abortion that were never explicitly removed, though it’s unclear whether any of these laws would be enforceable following a decision to overturn Roe.
The road to such a decision remains murky. According to The New York Times, the court may end up chipping away at reproductive rights rather than overturning Roe completely. It could also decide not to review the new laws at all.
Many of these trigger laws predate the current debate over abortion rights — some by over a decade. Louisiana, for instance, passed its bill in 2006, which has since lain dormant. But in recent months, trigger laws have spread, nearly doubling in number as Arkansas, Kentucky and Tennessee have joined the list of states that have passed them. Mississippi, North Dakota and South Dakota had trigger laws in place before this year.
“What anti-choice politicians did five years ago, 10 years ago, under the radar when it seemed as if Roe was settled law and wasn’t up for renegotiation, had a different set of political implications than it does now,” said Kristin Ford, national communications director for the organisation NARAL Pro-Choice America. “There’s a different level of scrutiny and spotlight on the trigger laws, the bans, the general wave of restrictions on abortion access.”
Laurence Tribe, a law professor at Harvard, questions the laws’ effectiveness.
“I suppose they might achieve their symbolic purpose. But if their purpose is actually to protect the lives of foetuses, they make no real sense,” he told HuffPost in an email. “It would be easy for the Supreme Court to empty Roe v. Wade of just about all significance without explicitly overruling that landmark decision and thereby triggering such laws.”
He added that these laws would likely deter the Supreme Court from explicitly overturning Roe and “playing into the hands of [the trigger laws’] authors.”
In Tennessee, anti-abortion lawmakers pivoted to trigger legislation after their “heartbeat” bill — which would ban abortions after an embryo displays cardiac activity — was effectively killed. According to The Tennessean, Brian Harris, president of Tennessee Right to Life and a key proponent of the bill, described it in April as one part of a larger strategy of “focusing on policies that stand the strongest chance of being upheld as constitutional and enforceable.”
But even without present legal implications, abortion trigger laws may see some immediate impact.
In a time when laws that limit access to abortions are on the rise across the country, trigger laws may “create a climate of confusion,” said Jessica Arons, a senior advocacy and policy counsel for reproductive freedom at the American Civil Liberties Union. People unfamiliar with these laws may mistakenly interpret them as an active ban on abortion in their state, she explained.
According to Arons, these laws also hold significant symbolic meaning.
“Every time you have a legislature pass either an actual ban or the threat of a ban, which is what a trigger law is, then it sends a message that abortion is either a crime today, or it will be in the very near future, and that it should be,” she said. “And so it demonises the people who have abortions and the choices they make when people are just trying to live their lives as best they can, and take very seriously the question of when to become a parent.”
In other states, the threat to Roe has mobilised lawmakers on the other side of the issue to pass new legislation to protect abortion rights. New York in January expanded access to abortions later in pregnancy. Other states like Nevada have looked to overturn old laws that impose limitations on abortion. Meanwhile, Democrats in Congress on Thursday reintroduced a sweeping bill that would severely limit state lawmakers’ ability to pass anti-abortion measures.
This story has been updated to note pre-Roe state laws.