Red states have been preparing for when the Supreme Court might end abortion protections in the United States.
In more than a dozen states, most abortions could be banned immediately by trigger laws already in place. Here’s how that works.
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, 13 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, when the Senate confirmed three conservative justices to the Supreme Court — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
In September, the Supreme Court declined to stop a six-week abortion ban in Texas from going into effect, despite Roe’s protections of abortion up to 24 weeks. Then in December, the Court heard oral arguments on whether Mississippi’s 15-week abortion ban could stand. The conservative justices seemed open to letting Mississippi keep the law, which would severely weaken federal abortion protections. Now, based on this draft opinion, it’s possible the court could vote to end Roe v. Wade entirely, rather than just allow 15-week bans. That would let states restrict abortion as much as they wanted.
As the court heard that Mississippi case, red states became even more ambitious in passing abortion restrictions. Oklahoma passed its trigger law last year, and Republicans there also put into place a six-week abortion ban. Idaho passed a version of Texas’s controversial six-week ban, which empowers private citizens to enforce it. And a number of other states have recently passed abortion restrictions that don’t allow for exceptions for rape or incest. Other red states are expected to follow.
But the trigger laws would have the most immediate effect in changing the abortion landscape in America if the Supreme Court knocks down Roe.
Which states have them?
At least 13 states have laws that would ban or curtail abortion immediately: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.
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 there, with exceptions for rape if the rape has been reported to authorities.
Taken together, abortion could be illegal in nearly half of states in the country.
On the other end of the spectrum, 16 states and the District of Columbia have policies that explicitly protect the right to abortion, and Democratic governors in states such as California, Minnesota, Oregon and Michigan indicated they would double down on protecting abortion, or even prioritize new abortion protections.
How do these trigger laws 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.
States’ attempts to ban abortion before Roe allows — which is about 22 to 24 weeks, or when the fetus is viable outside the womb — have usually been knocked down by the courts. But this year, the Supreme Court has allowed earlier bans to stay in effect.
This report has been updated.
Roe v. Wade and abortion access in America
In June 2022 the Supreme Court struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.
What happens now? The legality of abortion is left to individual states. The Post is tracking states where abortion is banned or under threat, as well as Democratic-dominated states that moved to protect abortion rights enshrined in Roe v. Wade.
Abortion pills: Abortion advocates are concerned a Texas judge’s upcoming abortion pill ruling could halt over half the legal abortions carried out nationwide. Here’s how the ruling could impact access to the abortion pill mifepristone.
Post-Roe America: With Roe overturned, women who had secret abortions before Roe v. Wade felt compelled to speak out. Other women, who were and seeking abortions while living in states with strict abortion bans shared also shared their experience with The Post through calls, text messages and other documentation that supported their accounts. Here are photos and stories from across America since the reversal of Roe v. Wade.