Emboldened by the Reality of a Right-leaning Supreme Court, Republican-ruled States Have Doubled the Abortion Trigger Laws

The movement to steadily chip away at a woman’s access to abortion or once again ban the procedure outright, has been building momentum for decades. Ever since the Supreme Court ruled in Roe v. Wade (1973) that women have a constitutional right to abortion, religious activists and far-right lawmakers have aggressively worked their agenda to outlaw the procedure with significant state-level success. 

Now, they’re about to hit pay dirt. Whether it’s a Justice Brett Kavanaugh who delivers the deciding vote on a challenge that upends Roe or another far-right nominee who’s confirmed to the Supreme Court, Roe is on its last legs. When it no longer stands, it will again will be up the states to legislate abortion locally.

While lawmakers in Massachusetts moved in July 2018 to protect women’s access to the procedure with its NASTY (Negating Archaic Statutes Targeting Young) Women Act, which struck down a 173-year-old abortion ban, eight states— Arkansas, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota and Tennessee—have in place abortion Trigger laws, set to automatically ban abortion—at differing intervals—once triggered by the overturning of Roe.

These laws, passed after 2005 would make performing an abortion a felony. Four of them passed in 2019 alone, no doubt because right-leaning state legislatures around the country - which successfully have passed a pipeline of laws designed to challenge Roe v. Wade - are emboldened by a majority-right Supreme Court. In Mississippi, for example, anyone convicted of ‘the crime’ would face up to three years in prison. While Louisiana made the sentence 10 years with a fine up to $100,000.

The Triggers

  • The ban in Arkansas would be automatic and all-inclusive, except when the mother’s life is at risk.

  • In Kentucky, the immediate ban also would make all abortions illegal, with only an exception for the life of the mother.

  • In Louisiana the ban would be immediate and wide-reaching, outlawing all abortions, except when the mother’s life is at stake.

  • Meanwhile, in Mississippi, 10 days after the state Attorney General certifies the decision, abortion would become illegal, except when pregnancy poses a threat to the mother’s life or there is a pending rape trial.

  • And in Missouri, another overall abortion ban automatically would be triggered by the overturning of Roe. This law only makes exceptions in case of medical emergencies.

  • Similarly, in North Dakota, the law would go into effect the day the state’s legislative council approves the attorney general’s recommendation and would prohibit any and all abortions.

  • And, in South Dakota, the law becomes effective on the date the Supreme Court recognizes states as having the authority to prohibit abortion at all stages of pregnancy.

  • Tennessee’s total abortion ban would be triggered 30 days after Roe is overturned and would only allow an exception for medical emergencies.

 Sadly, those triggers are only the beginning. According to the Guttmacher Institute, North Dakota is among seven states – Arkansas, Kansas, Kentucky, Louisiana, Missouri and Ohio round out the group – where lawmakers have gone so far as to legislate their intent to impose the maximum restrictions on abortion allowed by the Supreme Court.

Whether these Trigger Laws already have passed or other restrictive measures are waiting in the wings, it’s all evidence that the ideological right is unified and has been successfully pressing its case for decades, while reproductive rights groups were asleep at the switch for so long that when they finally awoke to the dangers, all they could do was get in defense mode and now are scrambling to plug all the holes that might help them hold the line.