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The Human Life Protection Act: How Ohio is Using a Trigger Ban to Prepare for a Post-Roe America
Jessica Warner | 19 March 2020
Throughout the 47 years of Roe v. Wade, the question of how to best abolish abortion has been both a stimulating and divisive discussion in pro-life circles. Although there is heated debate surrounding the important topic of ending abortion, the question has never been if we should end abortion, but rather how we can end it. At Ohio Right to Life, we believe the answer is the Human Life Protection Act, or what is commonly called an abortion “Trigger Ban.”
Earlier this month in the Ohio House of Representatives, Ohio Right to Life introduced House Bill 538, the Human Life Protection Act. This legislation would prohibit all abortions except those necessary to save the mother’s life, but would not take effect until the Supreme Court overturned Roe v. Wade. It is a common misconception that once Roe is overturned, abortion will become illegal in the United States. However, overturning Roe would, in reality, result in leaving the decision to permit or prohibit abortion up to each state. As Ohio law currently stands, if Roe were overturned today, a baby in Ohio could be aborted up until 20 weeks gestation.[i] As we see our country move closer than it has ever been to overturning this disastrous decision, Ohio must consider the best steps to ensure that we are abortion free once that happens.
We have reason to be optimistic. A wave of states have passed pro-life laws in recent years. The number of abortions has dropped nationwide. And at the end of 2019, the United States Supreme Court indicated a willingness to reconsider abortion jurisprudence by agreeing to take up a case from a pro-life law in Louisiana. The case, called June v. Russo, concerns a law from Louisiana that requires abortion facilities to have admitting privileges to local hospitals. It is significant to note that the court previously struck down this same law from Texas in Whole Women’s Health vs. Hellerstadt in 2016.[ii] That the court would agree to take up a similar case signals that there is a willingness among a majority of the justices to reconsider the 2016 ruling, or potentially, abortion policy as a whole.
Ohio Right to Life has taken a strategic, incremental approach to chip away at legal abortion since 1973. Incrementalism, though questioned by some in the pro-life movement, has resulted in incredible success for Ohio's pro-life movement. Twenty-two pro-life initiatives have been enacted in the last decade in Ohio, and in that span, abortions have dropped 31% while nearly half of abortion facilities in the state have closed.[iii] With Roe v. Wade more vulnerable than it has ever been, it is time to prepare for a post-Roe Ohio. We believe that a Trigger ban like the Human Life Protection Act is the vital next step to ending abortion in our state.
Trigger bans have a unique advantage over more traditional abortion ban legislation. Since such a law is designed only to go into effect after the Supreme Court has overturned Roe v. Wade, this provides a particular degree of immunity against the court challenges which most types of pro-life legislation do not have. Given Roe v. Wade’s viability framework, many pieces of pro-life legislation that aim to ban abortion before viability ultimately are challenged, temporarily enjoined, and caught in the court system for extended periods of time after they have been signed into law. Trigger bans are easier to implement because the law then already exists in statute. While having no immediate effect, Trigger bans are part of a forward-thinking strategy that will have immediate results at the right time.
Although Trigger bills have been a part of the pro-life movement's strategy for decades when discussing this type of legislation, the question may arise as to whether or not the state can enact a law to take effect upon a future contingent event. However, a quick survey of other states' policies on this subject confirms that it can, and further that it is not uncommon for states to do so. The state often accounts for federal dollars not yet authorized in our state operating budget, with the expectation the federal government will provide funding in the future. The state also enters into contracts (i.e., childcare using Title XX money) with the same expectation that certain funding will be secured. [iv]
Another example is interstate compacts like the Great Lakes Compact, which are laws that must be enacted by multiple states in order to go into effect.[v] The Human Life Protection Act follows these same principles.
Trigger bans like the Human Life Protection Act are much-needed pieces of forward-thinking legislation. Roe, challenged by a host of incremental laws, including Ohio's "Heartbeat Bill," could be overturned as soon as this summer. While we continue vigorously advocating for further protections for life in Ohio, the Human Life Protection Act once passed, will stand waiting in the wings to end abortion in Ohio the moment Roe v. Wade falls. There will be more work to do to support mothers and their children, but the first step is to ensure that these children are guaranteed their right to life.
We look forward to a future where human rights are guaranteed, and children and mothers are loved and supported in our state.
[iii] See https://odh.ohio.gov/wps/wcm/connect/gov/534ddb3a-febd-4e2a-99ee-90249240bcdd/VS-AbortionReport2018.pdf.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-534ddb3a-febd-4e2a-99ee-90249240bcdd-mS77yg-
[iv] See http://codes.ohio.gov/orc/5104.32
Jessica Warner, Director of Legislative Affairs at Ohio Right to Life