With the Roe v. Wade (1973) decision, the Supreme Court of the United States (SCOTUS) legalized abortion and established a woman’s constitutional right to choose to have an abortion.  Recent changes to the makeup of the Supreme Court raises the possibility that the Roe (1973) decision could be overturned.  With what many consider a conservative majority and the current 17 abortion-related cases before the court, the time is quickly approaching in which the legality of abortion may be left to individual states and which may establish a legal path for states’ abortion bans to take effect (Aggeler, 2020).    

 

Following the Roe (1973) decision, states moved quickly to establish laws that sought to restrict abortion.  In the first five years after the decision, measures focused largely on restricting abortion later in pregnancy, establishing requirements for abortion clinics, mandating parental involvement for minors, and allowing institutional and individual providers to refuse to provide abortions (Guttmacher, 2016).  State legislation also limited public funding for Planned Parenthood.  The SCOTUS decision Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) upheld the constitutional right to have an abortion established by Roe (1973) but altered the standard for analyzing abortion restrictions, crafting the undue burden standard for such restrictions.  Additionally, the Gonzales v. Carhart (2007) decision upheld the ban on partial-birth abortion established in the Partial-Birth Abortion Ban Act (2003). 

 

During the 28 years from 1983 to 2010, the legislative focus shifted to requiring counseling for women seeking an abortion, as well as establishing waiting periods prior to receiving an abortion (Guttmacher, 2016).  As of October 2020, 25 states require waiting periods between provider counseling and the abortion procedure.  Since 2001, states have proposed over 2,500 state laws addressing abortion (Alexander, 2009). 

 

State lawmakers continue to consider and enact legislation in anticipation of the reversal of the Roe (1973) decision.  Should SCOTUS reverse Roe (1973), a number of states have the ability to immediately ban abortion due to “trigger laws”: legislative bans on abortion that aren’t active while Roe (1973) is in place but trigger as soon as the landmark decision is overturned (Aggeler, 2020).  Trigger laws could go into effect quickly, not requiring additional legislative consent, meaning they can take effect even if the legislature is not in session.  And as especially important, trigger laws take effect without the delay of an additional legislative fight.

 

Currently, ten states have passed so-called trigger bans, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, and Utah (Bui, Miller, & Sanger-Katz, 2020).  Trigger laws express legislative intent to ban all or most abortions as soon as it is legally or constitutionally possible to do so (Morona, 2019).  Texas legislators have introduced the Human Life Protection Act, SB 9 (2021) and HB 1280 (2021), a trigger ban that coordinates with a SCOTUS decision and seeks a complete ban on abortions.  While trigger bans remain unenforceable until SCOTUS overturns the Roe (1973) decision (Alexander, 2009), the Texas trigger ban would become effective 30 days after SCOTUS overrules, wholly or partly, Roe v. Wade (1973) or Planned Parenthood v. Casey (1992). 

 

In some states, trigger legislation has been law for over a decade.  While Louisiana passed its trigger bill in 2006, most states passed a third of current trigger laws since 2019 (Aggeler, 2020).  Additionally, nine states kept pre-Roe abortion bans on their books.  Although not enforced since Roe (1973), pre-Roe abortion bans in Alabama, Arizona, Arkansas, Michigan, Mississippi, New Mexico, Oklahoma, West Virginia, and Wisconsin could potentially be used to restrict the legal status of abortion when Roe (1973) is overturned. 

 

Recent legislation, such as Arkansas’ SB 6 (2021) and South Carolina’s Fetal Heartbeat and Protection from Abortion Act (2021), defy Supreme Court precedent, seeking to set into motion a review of the Roe (1973) case.  These laws serve as a prelude to engage the court (Beer, 2021).  Although scheduled to go into effect in August, Arkansas SB 6 faces a high likelihood of legal challenges that will prevent its enactment.  The South Carolina Fetal Heartbeat and Protection from Abortion Act (2021), signed into law by South Carolina Gov. Henry McMaster (R) in February, faces similar legal challenges.  The day after the governor signed the act into law, U.S. District Court Judge Mary Geiger Lewis issued a 14-day temporary restraining order after Planned Parenthood requested the law not be enforced until the group's lawsuit against the state was resolved (Beer, 2021). 

 

From 2015 to 2019, taxpayers paid almost $10 million in attorney’s fees for abortion providers (Keating, 2019), an amount that continues to grow as laws seeking abortion restrictions face court challenges.  When courts throw out the challenged laws, the state has to pay the legal expenses for the abortion advocates (Keating, 2019).  Under federal civil rights laws, courts can order reimbursements to those who successfully challenge laws that violate civil rights (Keating, 2019), leaving the responsibility for such reimbursements in the hands of state taxpayers.  Juxtapose the weighty financial burden of extended court cases with the strategy of trigger bans.  If Roe (1973) is not overturned and the restrictions stated in the trigger bans do not go into effect, the state does not have to defend them in court. 

 

Trigger bans provide a strategy that saves taxpayers millions of dollars and represents an effort on the part of the pro-life community to address life issues proactively.  Additionally, as abortion advocates assert that states have regulated abortion and have, by implication, repealed pre-Roe bans, trigger bans establish legislative intent, a move that resolves the assertion made by abortion advocates conclusively.  In establishing this intent, trigger laws provide the next step in protecting the lives of unborn babies.

 

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References:

 

Aggeler, M. (2020, October 27). These states could lose the right to abortion overnight. The Cut. https://www.thecut.com/2020/10/what-are-trigger-laws-anti-abortion-roe-v-wade.html

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Beer, T. (2021). Arkansas governor signs into law near-total ban on abortion. Forbes. https://www.forbes.com/sites/tommybeer/2021/03/09/arkansas-governor-signs-into-law-near-total-ban-on-abortion/

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Bui, Q., MIller, C., & Sanger-Katz, M. (2020). What happens if Roe v. Wade is overturned? Chicago Tribune. https://www.chicagotribune.com/nation-world/ct-nw-nyt-scotus-abortion-barrett-20201019-c5vw5v2oyzffvikcq4xspfz4wi-story.html

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De Lea, B. (2021). Arkansas’ Republican Gov. says he only signed abortion bill as a ‘direct challenge’ to Roe v. Wade [Text article]. Fox News. https://www.foxnews.com/politics/arkansas-republican-gov-abortion-bill-direct-challenge-roe-v-wade

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HB 1280, 87th Leg. Sess. (Tx. 2021).

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Keating, D. (2019). Abortion restrictions are costing states millions of dollars—In fees for the other side. Washington Post. https://www.washingtonpost.com/national/2019/09/23/abortion-restrictions-are-costing-states-millions-dollars-fees-other-side/

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Morona, A. (2019). What are trigger laws? Examining states’ preemptive legislative bans on abortion. Washington Week. https://www.pbs.org/weta/washingtonweek/blog-post/what-are-trigger-laws-examining-states-preemptive-legislative-bans-abortion

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Roe v. Wade, 410 U.S. 113, 153 (1973).

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SB 6, 93rd Gen. Assy. (Ar. 2021).

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SB 9, 87th Leg. Sess. (Tx. 2021).

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South Carolina Fetal Heartbeat and Protection from Abortion Act, SC S0001, (SC, 2021).

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Partial-Birth Abortion Ban, S. 3 — 108th Congress (2003)

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Planned Parenthood v. Casey, 505 U.S. 833 (1992)