According to the Guttmacher Institute, a research organization focused on reproductive health and rights, if Roe v. Wade is overturned, 21 states would ban or severely restrict abortion access. Some have pre-Roe abortion bans on their books that would become enforceable again, and others have passed post-Roe “trigger laws” — bans that would take effect if the Supreme Court overturns the law. Others are working to pass trigger laws now.
What are trigger laws?
Antiabortion lawmakers have long hoped for a day when the Supreme Court might overturn Roe v. Wade. Rather than wait for that moment, a dozen state legislatures have passed laws that would become enforceable immediately or soon after the court overturns the precedent. Some laws, such as those in South Dakota and Louisiana, have been on the books for more than 15 years, but most, including the bills in Arkansas, Kentucky and Idaho, passed during the Trump administration, after lawmakers confirmed conservatives Neil M. Gorsuch and Brett M. Kavanaugh to the Supreme Court. Oklahoma passed its trigger law this year.
Which states have them?
If Mississippi prevails at the Supreme Court, 12 states have laws that would ban or curtail abortion: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah.
Four other states lack trigger laws but do have pre-Roe abortion bans on the books that would become enforceable again. Those include Arizona, Michigan, Wisconsin and West Virginia. The attorneys general for Arizona and West Virginia also signed a 24-state amicus brief supporting Mississippi’s attempt to overturn Roe.
Mississippi also has a trigger provision. If the court rules in the state’s favor, it would allow Mississippi’s 15-week ban to stand. Ten days later, a law banning all abortions — both the surgical procedure and abortions precipitated by pills — would take effect, with exceptions for rape if the rape has been reported to authorities.
Fourteen states and the District of Columbia have policies that explicitly protect the right to abortion.
How do they work?
The details of trigger laws vary by state. Most would ban the procedure outright with limited exceptions for cases of rape and incest. Tennessee’s “Human Life Protection Act” allows only one exception: when an abortion is necessary to prevent death or “substantial and irreversible impairment of major bodily function.”
Several states, including Tennessee and Kentucky, would make it a felony for a doctor to perform an abortion, while women seeking abortions would be exempt from prosecution.
Though banning abortion is currently illegal, the trigger laws have avoided federal lawsuits by delaying the effective date until the Supreme Court again allows states to make abortion illegal.