Featured Article

The Constitutionality of

Trigger Bans

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Bioethics in Law & Culture                                                                                                                              Summer  2021     vol. 4  issue  3

Jacqulyn Dudasko, EdD

Texans for Life Coalition

Introduction

“This unconstitutional statute will take effect when it becomes constitutional,”[1] a statement that identifies the sentiment of a type of statute known as a “trigger law.” While considered by some to be a rare phenomenon, trigger laws have become a vehicle of choice for lobbyists and legislatures in preparation for anticipated changes is standing legislation. Trigger laws serve as a means of allowing state legislatures the opportunity to express disapproval of the Supreme Court’s interpretation of the Constitution. Although trigger laws could address any area of constitutional law, most existing trigger laws target abortion and would criminalize it should the Supreme Court overrule Roe v. Wade.[2]

Trigger Laws Defined

Trigger laws are not immediate bans on abortion.  Instead, they are two-part statutes, containing a substantive provision and a “trigger” provision. They essentially clarify the concept that an unconstitutional statute will take effect when it eventually becomes constitutional.  If challenged in court, the substantive provisions would be held unconstitutional under current judicial doctrine.  Because the substantive provisions have no immediate effect and will not be enforced, their constitutionality cannot be challenged in court until they are triggered.[3] The trigger provision states that the substantive provisions will not take effect until a change in constitutional law would allow them to be upheld by the courts. With the delineation between substantiative and trigger portions to the statute, trigger laws do not immediately ban abortion.  Instead, they incorporate into statutes restrictions or bans that take effect when Roe is overturned.  Unlike a sunset clause which terminates all or part of the statute after a specified period, trigger laws activate a provision within the statute.[4] 

While we have noted what establishes a trigger ban, it is important to note that statutes are not trigger laws if they merely codify a legislature’s intent to enact new laws after doing so becomes constitutionally permissible.  Additionally, trigger laws are different from statutes that would continue to protect currently recognized constitutional rights if the Supreme Court were to roll back their constitutional protection.[5] Of course, trigger laws need not touch upon controversial issues. There are many currently on the books which address rather mundane issues, such as the trigger law adopted in the state of Washington that provides that a vendor-compensation statute becomes effective when its substantive provisions would not be found to violate the dormant Commerce Clause.[6]  However, most trigger laws recently passed and currently in existence address abortion.

Current Trigger Laws

A total of 19 states have enacted 94 restrictions on abortion since January, with 12 states banning all or nearly all abortions with trigger bans.[7]  Additionally, several states have laws declaring the state’s intent to ban abortion to whatever extent is permitted by the U.S. Constitution, with other states amending their constitution to declare that it does not contain any protection for abortion rights or allow public funds to be used for abortion. [8]  It is important to note, that while several states stand ready to restrict abortion, fourteen states and the District of Columbia have policies that explicitly protect the right to an abortion.

Anti-Roe Trigger Laws

Although recent trigger law activity associated with abortion has highlighted current legislative intent, trigger laws have been part of states’ support for life affirming legislation since Roe was decided.  Within three months of the Roe, Idaho and South Dakota enacted trigger laws with substantive provisions banning abortions.[9] The Idaho statute is set to become effective,

 

…in the event that the states are again permitted to safeguard the lives of unborn infants before the twenty-fifth week of pregnancy as a result of the Supreme Court of the United States overruling the decisions [of Roe and Doe], or an amendment to the United States Constitution overruling these decisions, [and] the governor ..., upon his determination that such event has occurred, make[s] a proclamation declaring said event to have happened ....[10]

South Dakota’s trigger law stated simply: “The effective date . . . shall be that specific date upon which the states are given exclusive authority to regulate abortion.”[11]

The Idaho and South Dakota trigger bans provide insight into the opinions of legislators enacting trigger legislation in the early days of the fight to protect the unborn.  The most recent trigger ban, that passed by the state of Texas, states:

…this Act takes effect, to the extent permitted, on the 30th day after: (1) the issuance of a United States Supreme Court judgment in a decision overruling, wholly or partly, Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992), thereby allowing the states of the United States to prohibit abortion; (2) the issuance of any other United States Supreme Court judgment in a decision that recognizes, wholly or partly, the authority of the states to prohibit abortion; or (3) adoption of an amendment to the United States Constitution that, wholly or partly, restores to the states the authority to prohibit abortion.[12]

 

While the Texas trigger ban included the history of legislation associated with the constitutional right to terminate the life of a child, what holds true for this and current bans, as for earlier trigger bans, is the inclusion of a substantive provision and a “trigger” provision.

Implications of Trigger Laws

Pre-Roe Bans

In the years before Roe was decided, several states and territories passed abortion bans, but the landmark Roe decision made them unenforceable. While not specifically trigger bans, the pre-Roe bans have the potential to be revived, banning abortion in each state that passed such bans.  With the possibility that Roe could be overturned, pre-Roe bans could be revived.  In some states, if a ban were never declared unconstitutional or blocked by the courts, and therefore if Roe is limited or overturned, state officials could seek to enforce the original ban. In other states, where courts have blocked or limited a pre-Roe ban, officials could file court actions asking courts to activate the ban if Roe fell.[13]  An argument against enactment of pre-Roe bans is that because many of the laws enacted regulating abortion within the state post-Roe have been “repealed by implication.”[14] 

Trigger Laws and the Rule of Law

Even in accepting trigger laws as useful and appropriate tools for advancing popular understandings of constitutional meaning, responsiveness to the public will does not reflect all that is good in a constitutional democracy.[15]  Scholars note that trigger laws and their subsequent bans may conflict with values that one may hope to find in the legal system, most specifically the Rule of Law.  Although a much celebrated, historic ideal, the precise meaning of the Rule of Law may be less clear today than ever before.[16]  Respect for the Rule of Law is central to our political and rhetorical traditions, possibly even to our sense of national identity and yet the modern American legal system departs significantly from the provisional account of the Rule of Law.  However, it can be fairly noted, that it is strongly arguable that no plausible legal system could avoid departing from it in some way.[17]  In light of the looming changes in store for abortion law given the upcoming United States Supreme Court review of the Dobbs v. Jackson Women’s Health Organization case, awareness of at least several points related to the Rule of Law highlight the legitimacy of using trigger bans as a response to changes in constitutional law and to align state law to new constitutional law.

Scholars note a range of rules, or elements, associated with the Rule of Law.  Relying on the work of several scholars, among them Rawls[18]and Fuller[19], Fallon points out succinctly that the Rule of Law is best conceived as comprising multiple strands, including values and considerations to which each of the four competing ideal types calls attention and that it is a mistake to think of criteria as necessary in all contexts for the Rule of Law.[20]  He notes that efforts to specify the meaning of the Rule of Law commonly appeal to values and purposes, and is thought to serve and highlight three central purposes. First, the Rule of Law should protect against anarchy and the Hobbesian war of all against all.  Second, the Rule of Law should allow people to plan their affairs with reasonable confidence that they can know in advance the legal consequences of various actions.  Third, the Rule of Law should guarantee against at least some types of official arbitrariness.[21]

 

According to Fallon, against the background of these purposes, leading modern accounts generally emphasize five elements[22] that constitute the Rule of Law.[23] To the extent that these elements exist, the Rule of Law is realized.

(1) The first element is the capacity of legal rules, standards, or principles to guide people in the conduct of their affairs. People must be able to understand the law and comply with it.

(2) The second element of the Rule of Law is efficacy. The law should guide people, at least for the most part. In Joseph Raz's phrase, "people should be ruled by the law and obey it."[24]

(3) The third element is stability. The law should be reasonably stable, to facilitate planning and coordinated action over time.

(4) The fourth element of the Rule of Law is the supremacy of legal authority. The law should rule officials, including judges, as well as ordinary citizens.

(5) The final element involves instrumentalities of impartial justice. Courts should be available to enforce the law and should employ fair procedures.[25]

Berns argues that trigger laws are at odds with elements of Fallon’s classified Rule of Law.[26]  As trigger laws are being passed and applied across the country, this paper considers Berns’ claim against the efficacy and stability of trigger bans as they relate to the Rule of Law.

 

Efficacy

Berns suggests that because trigger laws’ substantive commands are not enforced, they conflict with the Rule of Law principles “that people should be ruled by the law and obey it” and that “the law should actually guide people,” noting that to serve its proper social function, law must be effective in guiding the conduct of individuals.[27] Although abortion trigger laws have enjoyed recent support in state legislatures, they place in the statute books “legal” commands that will not be enforced and that writing void laws is repugnant to the Rule of Law,[28] which “requires . . . that laws must be applied.”[29]

However, the idea that law can act as a teacher to or that it “should actually guide” those whom it governs is not new. St. Thomas Aquinas made this idea central to his theory of jurisprudence when writing in the thirteenth century. [30]  To simply argue that void laws are repugnant to the Rule of Law loses sight of the fact that Roe itself has effectively guided the conduct of individuals.  So much so, that as Roe changed the cultural landscape it created a climate in which many women have come to expect the ready availability of abortion services.

While the effect of a trigger ban may be delayed, it commands the respect of the Rule of Law in that it holds the potential of changing a cultural landscape.  Interestingly, reliance on the cultural landscape created by Roe was a primary reason given by the court in Casey for not overturning Roe.[31] The legacy of Roe, and laws that have followed it, have been "a tragic obscuring of the collective conscience,"[32] with a corrosive effect on society.

Stability

The Rule of Law principle that the law should be capable of guiding people’s conduct requires that the law be relatively stable.[33]  Even in considering stability, the level of stability must be considered.  Total stability, such that the law cannot be changed, is undesirable, yet the requirement of stability cannot be usefully subject to complete regulation.[34] It is largely a matter for wise government policy.[35]  The anticipation of changes in the Court’s interpretation of the Constitution are the premise of trigger laws.  Therefore, they change state law only when the Court decides that the new rules would be constitutionally permissible.[36]  In actuality, trigger laws act in increasing stability by informing people of upcoming changes to state law should constitutional law change, and because they are immune to judicial review, they are less likely to hasten changes in the Court’s interpretation of constitutional law than are similar statutes designed to bring test cases in court, therefore increasing stability in the legal system.[37]

Berns argues that trigger laws can cause instability because of they can affect, overnight, conduct that was not regulated by the state before the decision.[38] Berns continues that by automatically making a legal change that would not otherwise take place, the trigger law adds to the instability inherent in the Court’s decision. Thus, not providing individuals with more information about what law will govern their conduct. [39]  But in the case of the Texas trigger law, it specifically states that the act takes effect, to the extent permitted, on the 30th day after any Supreme Court judgment in a decision overruling, wholly or partly, Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). By delaying the action of the law for the thirty-day period, all parties, especially women considering abortion, are allowed time to understand the implications of the new law and therefore make appropriate changes, hopefully deciding in favor of the life of their unborn child.

Conclusion

Aquinas, writing in the Summa Theologiae, defines law in the following way: “Law of its very nature is an ordinance of reason for the common good, which is made by the person who has care of the community, and this rule is promulgated.”[40]  Trigger laws act as a means of promulgating law that, although not occurring immediately, hold the potential of responding to changes in constitutional law.  And while they may address mundane issues, the trigger bans recently passed provide a proactive response to constitutional outcomes that will ultimately save lives. 

The Rule of Law is an important aspect for individuals, legislators, and judges to consider.  With even the Supreme Court noting in the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey,[41] that “overruling Roe’s central holding would not only reach an unjustifiable result under principles of stare decisis but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”[42]  Much is at stake in prolife legislation.  Trigger laws support the efficacy and stability aspects in the Rule of Law, guiding individuals to a common good that respects life.

 

_________________

[1] Berns, Matt, Trigger Laws. Georgetown Law Journal, Vol. 97, No. 6, pp. 1640, 2009, https://ssrn.com/abstract=1442474

[2] 410 U.S. 113 (1973).

[3] Berns, Matt, Trigger Laws. Georgetown Law Journal, Vol. 97, No. 6, pp. 1640, 2009, https://ssrn.com/abstract=1442474

[4] BLACK’S LAW DICTIONARY 1478 (8th ed. 2004); Examples of statutes that contain sunset clauses are the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified in scattered sections of the U.S.C.) and the Violent Crime Control and Federal Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (including a ten-year ban on the sale of certain weapons to civilians). Another example is the eight-year presidential term limit. U.S. CONST. amend. XXII.

[5] Berns, Matt, Trigger Laws. Georgetown Law Journal, Vol. 97, No. 6, pp. 1649, 2009, https://ssrn.com/abstract=1442474

[6] Wash. Rev. Code § 82.32.720 (2008)

[7] Batha, Emma. “U.S. States Making 2021 Moves on Abortion Rights and Access.” Thomson Reuters Foundation, 2021. https://news.trust.org/item/20201231112641-qfynt/

[8] Guttmacher Institute. “Abortion Policy in the Absence of Roe,” July 1, 2021. https://doi.org/10.1363/2019.30760

[9]  Act of Mar. 17, 1973, ch. 197, 1973 Idaho Sess. Laws 442; Act of Mar. 28, 1973, ch. 146, 1973

S.D. Sess. Laws 206.

[10] Act of Mar. 17, 1973, ch. 197, § 14, 1973 Idaho Sess. Laws at 448.

[11] Act of Mar. 28, 1973, ch. 146, § 17, 1973 S.D. Sess. Laws at 209

[12] H.B. 1280, Sess. 87 (Tex. 2021).

[13] Coleman, Emma. “‘Trigger Laws’ in Some States Would Ban Abortion Immediately If Roe Is Overturned.” Route Fifty, 2020. https://www.route-fifty.com/health-human-services/2020/12/trigger-bans-roe-abortion/170719/

[14] Linton, Paul Benjamin, The Legal Status of Abortion in the States if Roe v. Wade Is Overruled, 23 ISSUES L. & MED. 3, 4 (2007)

[15] Berns, Matt. “Trigger Laws.” SSRN Scholarly Paper. Rochester, NY: Social Science Research Network, (2009). https://papers.ssrn.com/abstract=1442474

[16] Fallon Jr, Richard H. "" The rule of law" as a concept in constitutional discourse." Columbia Law Review (1997): 1.

[17] Fallon., 3.

[18] Rawls, Rawls, A Theory of Justice 235-43 (1971).

[19] Fuller, Lon L., The Morality of Law 42-44 (rev. ed. 1964).

[20] Fallon Jr, Richard H. "" The rule of law" as a concept in constitutional discourse." Columbia Law Review (1997): 8.

[21] Fallon., 8.

[22] List of desiderata differs in detail from, but is in spirit consistent with, Lon Fuller's account of eight criteria that must be satisfied for law to exist: generality, publicity, prospectively, clarity, noncontradictoriness, capability of being followed, stability, and congruence between norms as stated and norms as applied. See Fuller, Fuller, Lon L., The Morality of Law 42-44 (rev. ed. 1964).

[23] Fallon Jr, Richard H. "" The rule of law" as a concept in constitutional discourse." Columbia Law Review (1997): 8.

[24] Raz, Joseph, The Rule of Law and Its Virtue, in The Authority of Law: Essays on Law and Morality 210, 224 (1979).

[25] Fallon Jr, Richard H. "" The rule of law" as a concept in constitutional discourse." Columbia Law Review (1997): 8.

[26] Berns, Matt, Trigger Laws. Georgetown Law Journal, Vol. 97, No. 6, pp. 1669, 2009, https://ssrn.com/abstract=1442474

[27] Berns, 1670.

[28] Berns, 1671.

[29] Balkin, Jack M. "The rule of law as a source of constitutional change." Const. Comment. 6 (1989): 21.

[30] Breen, John M. Modesty and Moralism: Justice, Prudence, and Abortion: A Reply to Skeel & Stuntz, 31 Harv. J. L. & Pub. Pol’y 219 (2008).

[31] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855-56 (1992)

[32] Evangelium Vitae, supra note 76, ' 70.

[33] Berns, Matt, Trigger Laws. Georgetown Law Journal, Vol. 97, No. 6, pp. 1679, 2009, https://ssrn.com/abstract=1442474

[34] Raz, Joseph, The Rule of Law and Its Virtue, in The Authority of Law: Essays on Law and Morality 210, 213 (1979)

[35] Raz, 210, 215.

[36] Berns, Matt, Trigger Laws. Georgetown Law Journal, Vol. 97, No. 6, pp. 1679, 2009, https://ssrn.com/abstract=1442474

[37] Berns, 1679.

[38] Berns, 1679.

[39] Berns, 1679.

[40] Summa Theologiae Ia IIae.q90. a4.

[41] 505 U.S. 833 (1991).

[42] 505 U.S. 833 (1991) at 865.

abortion trigger bans Roe v. Wade

Jacqulyn Dudasko, EdD earned her Doctorate in Education (EdD) in Interdisciplinary Leadership from Creighton University, in Omaha, Nebraska.  Her dissertation is titled: Information Seeking Among Women Who Are Homeless and Pregnant: A Phenomenological Exploration. She currently serves as the Director of Education and Policy at Texans for Life Coalition.