States across the country are preparing for a possible day when Roe v. Wade is overturned.
Roe, the 1973 Supreme Court decision, specifies that a woman has a right to an abortion, and states are not allowed to interfere with that right. But abortion activists — both for and against — say the high court will be forced to rule on it in upcoming sessions.
Five states have already outlawed abortions with “trigger laws,” legislation that isn’t active unless Roe v. Wade is no longer in effect. “Trigger laws” are a way to ensure that abortion will be automatically illegal in the event that states are allowed to regulate the procedure.
Another eight states have introduced bills this legislative session that, if passed, would also outlaw abortion. Though three of those aren’t technically “trigger laws, all will be inactive unless Roe becomes ineffective, either through a full repeal or a handful of small anti-abortion-rights decisions.
“Trigger laws” date back to the year Roe was decided, and one or two conservative states have historically introduced them every legislative session. But those measures failed. This year has been different.
“There’s been so much more this year,” Elizabeth Nash, a senior state issues manager at the Guttmacher Institute, said. “And these are getting attention. They’re not just getting introduced and fizzling out like they used to.”
Liberal states are also preparing for a post-Roe v Wade world, passing laws that would maintain or expand access to abortion. In New York, lawmakers passed the “Reproductive Health Act” in January, which protects access to abortions after 24 weeks if the fetus is not viable or if there is risk to the mother’s health. Similar proactive laws in New Mexico, Virginia, Vermont have been introduced and gained traction.
The following is a list of every state that has enacted or proposed a “trigger law” or a full ban on abortion.
States that have enacted “abortion ban” laws
Arkansas
Name of law: Act 180, “An Act to Create the Arkansas Human Life Protection Act; to Abolish Abortion in Arkansas and Protect the Lives of Unborn Children; and for Other Purposes.”
Date passed: February 19, 2019
In February, Arkansas become the fifth state to have a “trigger law” on its books. It states “abortion in Arkansas is abolished” in the event that Roe v. Wade is overturned and does not make exceptions for rape or incest.
The legislation also implores the Supreme Court to reconsider Roe v. Wade. Act 180 likens abortion access rights to that of racial segregation laws, stating “a crime against humanity occurs when a government withdraws legal protection from a class of human beings resulting in severe deprivation of their rights.”
“The State of Arkansas urgently pleads with the United States Supreme Court to do the right thing, as they did in one of their greatest cases, Brown v. Board of Education, which overturned a fifty-eight year-old precedent of the United States, and reverse, cancel, overturn, and annul Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey,” Act 180 reads.
Louisiana
Name of law: “Human Life Protection Act”
Year passed: 2006
Louisiana already has some of the most restrictive abortion access laws in the country, but in the event that Roe v. Wade is overturned, the procedure will automatically be illegal. The “Human Life Protection Act” reads that the law would “become effective immediately” in the event a decision by the Supreme Court “reverses, in whole or in part… thereby, restoring to the state of Louisiana the authority to prohibit abortion.” The law does not give exceptions in the case of rape or incest.
A more recent abortion restriction proposed in Louisiana, which would have required abortion providers to obtain admitting privileges at a nearby hospital, was temporarily blocked by the Supreme Court in February. It was the first abortion-related case that Justice Kavanaugh decided on since joining the court last year.
Even though Kavanaugh wrote the dissenting opinion, abortion rights activists didn’t get a clear look into how the new justice may view abortion issues in the future, said Travis Tu, lead counsel on the case for the Center for Reproductive Rights, a pro-abortion rights legal advocacy group.
“Justice Kavanaugh plays his cards very close to the vest in this ruling,” Tu said in a telephone interview with CBS News. “This is just one step in a long game.”
Mississippi
Year enacted: 2007
In the event that the Supreme Court overturns Roe v. Wade, Mississippi’s state attorney general would first have to certify the decision and that “it is reasonably probable that [an abortion ban] would be upheld by the Court as constitutional.” The state’s abortion ban makes exceptions in the event that the mother’s life is at risk and in cases of rape “if a formal charge of rape has been filed with an appropriate law enforcement official.”
Physicians who administer abortions could face between one and ten years in prison, according to the law. Mississippi only has only operational abortion provider.
South Dakota
Year enacted: 2005
South Dakota has had a trigger law in its books for nearly 15 years. The law dictates that physicians are prohibited from administering any kind of abortion — medicinal or surgical — except if the mother’s life is at risk. The law does not make exceptions for rape and incest.
Physicians who perform an abortion would be guilty of committing a Class 6 felony in the state if the law is in effect.
The law notes that the act is only “effective on the date that the states are recognized by the United State Supreme Court to have the authority to regulate or prohibit abortion at all stages of pregnancy,” meaning that as long as Roe v. Wade is in effect, South Dakota’s law isn’t.
North Dakota
Year enacted: 2006
In the event that Roe v. Wade is overturned, administering an abortion would be considered a felony for the provider under North Dakota’s “trigger law.” The law provides exceptions if the women’s life is in danger or if the abortion “was to terminate a pregnancy that resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest.”
North Dakota has only one operating abortion clinic.
States with proposed “abortion ban” laws
Georgia
Name of law: House Bill 546
Date proposed: February 28, 2019
Status: It was read a second time in the state’s House of Representatives on March 1, 2019. It hasn’t been assigned to a committee yet.
Unlike other “trigger laws,” Georgia’s legislation is a simple ban on abortion. The proposed law calls for up to 10 years in prison and a fine of as much as $100,000 for physicians who perform one.
Because the bill doesn’t explicitly say this law only goes into effect if Roe v. Wade is overturned, it can’t be considered a true “trigger law,” said Nash. The bill includes exceptions for rape, incest and medical emergencies.
When it was proposed in February, Democrats and pro-abortion rights advocates criticized the legislation. In response to it and another restrictive bill on reproductive rights, one Georgia lawmaker said she plans to introduce a “Testicular Bill of Rights.” It was inspired by “what the reaction would be from some males and male legislators if the tables were turned and we started to talk about their reproductive rights and organs,” said Democratic Rep. Dar’shun Kendrick, who plans to introduce the legislation.
Kentucky
Name of law: House Bill 148, “AN ACT related to abortion”
Date proposed: January 10, 2019
Status: Delivered to Gov. Matt Bevin on March 14, 2019 who is anticipated to sign it into law.
Kentucky’s abortion ban is a traditional “trigger law.” The legislation reads that no person may “administer to, prescribe for, procure for, or sell to any pregnant woman any medicine, drug or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being.” The law also specifies that doctors may not “use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.”
The law would make performing an abortion a felony, punishable by up to five years in prison for a health provider. It does not make exceptions in cases of rape or incest, but does make an exception if the woman’s life is in danger.
Tennessee
Name of law: House Bill 1029, “Human Life Protection Act”; Senate Bill 1257, “Human Life Protection Act”
Date proposed: House Bill – February 6, 2019; Senate Bill – February 7, 2019
Status: House Bill – referred to committee on February 13, 2019; Senate Bill – referred to committee on February 11, 2019. If the bill is successfully voted out of committee, each respective chamber will vote on the bill.
Lawmakers in Tennessee introduced matching bills in the House and Senate with the same objective: outlawing abortion in the event that Roe v. Wade is overturned. Both bills say, “a person who performs or attempts to perform an abortion commits the offense of criminal abortion. Criminal abortion is a Class C felony.”
The legislation gives exception to when the woman’s life is in danger, and specifically notes that mental health concerns would not qualify for exceptions.
The bill also notes that a full repeal of Roe v. Wade isn’t necessary for the law to go into effect. Many abortion rights scholars believe a full, clean overturn of the landmark Supreme Court case is unlikely and anticipate a slow chipping away at the decision that would eventually render it ineffective. In Tennessee, lawmakers have considered this possibility and included it in their bill.
Oklahoma
Name of law: Senate Bill 195, “Personhood Act”
Date proposed: February 4, 2019
Status: Passed in the Senate on March 14, 2019. It nows goes to the House for a vote.
The original language of Senate Bill 195 was that of a traditional “trigger law,” outlawing abortions in the state in the event that Roe v. Wade is ever overturned. However, the bill was updated to instead put that to voters, proposing a state ballot measure that would amend Oklahoma’s constitution to say that the state didn’t secure or protect the right to perform or receive an abortion. The bill clarifies that it “concerns only the rights guaranteed by the Oklahoma Constitution” and “would not alter any rights guaranteed by the United States Constitution.”
The bill makes exceptions for when the woman’s health or life is at risk, the fetus has died, or in the events of criminal assault on the mother.
This bill is one of a handful of pieces of anti-abortion legislation that lawmakers in Oklahoma have introduced this session, each with slightly different nuances and success rates. One proposal, Senate Bill 13, would reclassify abortion as murder, but it was killed in committee by Republican state Senator Jason Smalley.
South Carolina
Name of law: “The Personhood Act of South Carolina” House Bill 3289, Senate Bill 485
Date proposed: House Bill – January 8, 2019; Senate Bill – February 6, 2019
Status: House Bill was referred to the Committee on Judiciary on January 8, 2019; Senate Bill referred to the Committee on Judiciary on February 6, 2019. If the bill is successfully voted out of committee, each respective chamber will vote on the bill.
Unlike other bills, South Carolina’s proposed abortion banlegislations in the House and Senate aren’t true “trigger laws” because they don’t clarify that they only take effect if Roe v. Wade is overturned. Instead, these bills seek to “establish that the right to life for each born and preborn human being vests at fertilization.”
By defining the beginning of life at fertilization, the proposals would effectively prohibit abortion, granting that the unborn can’t be “deprived of life without due process of law nor denied the equal protection of the laws.”
The House bill makes exceptions for when the mother’s life is at risk, and specifically clarifies that the bill would not impact access to birth control methods. The Senate’s legislation has similar exceptions, but it also proposes that having or performing an abortion be deemed a felony, referring to abortion as “the shedding of innocent blood.”
South Carolina lawmakers, including the lawmaker who proposed the Senate bill, have introduced several “personhood” measures in the statehouse in previous sessions, but all have failed to pass.
Missouri
Name of law: House Bill No. 126, “Missouri Stands for the Unborn Act”
Date proposed: Prefiled on December 3, 2018
Status: The state’s House of Representatives passed the bill on February 27, 2019. It now goes to the Senate for a vote.
Missouri’s abortion ban is part of House Bill 126, a wide-reaching piece of legislation that aims to restrict abortion access in the state. As it relates to Roe v Wade, its intention is clear: “This bill specifies that if there is in any change in federal law or court decisions that allow it, it is the intent of the state of Missouri that abortion shall not be permitted in the state under any circumstances,” the bill reads.
The bill makes exceptions for “medical emergency,” but not for rape or incest. Doctors who continue to perform abortions would be subject to a felony charge.
Even if Roe v Wade remains the law of the land, other pieces of House Bill 126 would further reduce abortion access in Missouri. The bill includes a ban on abortion based on race, sex or genetic abnormality as well as a requirement that both parents be notified if a minor receives the procedure.
The state already has some of the most restrictive abortion access laws in the country. Missourians seeking an abortion are subject to a 72-hour waiting period and only one abortion clinic exist in the state.
Indiana
Name of law: House Bill No. 1430, “Protection of Life”
Date proposed: January 15, 2019
Status: Referred to the Committee on Public Policy on February 15, 2019. If the bill is successfully out of committee, it’ll go to the full House for a vote.
Indiana’s proposed legislation goes several steps past other states’ “trigger law.” The “Protection of Life” bill refines that life begins “when a human ovum is fertilized by a human sperm” and “any act, law, treaty, order, rule or regulation for the United States government that fails to protect a person’s inalienable right to life in null, void, and unenforceable in Indiana.” In other words, the bill proposes that Indiana not recognize Roe v Wade.
The bill would also augments the definition of “child” to also include “an unborn child,” which effectively redefines abortion as murder in the state. There are no exceptions given for medical emergency, rape or incest.
Texas
Name of law: House Bill 896, “Abolition of Abortion” Act
Date proposed: January 17, 2019
Status: The bill was introduced in January, but has not been assigned to committee.
Similar to Indiana’s proposed legislation, Texas House Bill 896 aims to outlaw all abortions “regardless of any contrary federal law, executive order, or court decision.” The bill’s strategy is to redefine the beginning of life as the “moment of fertilization,” thereby making abortion akin to murder. The bills text specifies that both the mother and the doctor could be held liable.
House Bill 896’s sponsor, Representative Tony Tinderholt, introduced identical legislation in 2017, but that bill failed to pass.
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