Tuesday, 11 May 2021
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A look into trigger laws: a post-Roe world Lisa Fotios/Pexels

A look into trigger laws: a post-Roe world

Many pro-life advocates dream of what the day will be like when Roe v. Wade is overturned and for 10 states the verdict is in: Abortion would be banned (immediately in the majority of cases, if not all) thanks to trigger laws.

So, what exactly are trigger laws? 

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Trigger laws are defined as laws that are “currently unenforceable, but may achieve enforceability if a key change in circumstances occurs.” In this case, they’re laws banning abortion which aren’t currently enforceable but would be should Roe ever fall. Currently trigger laws are already in place in ten states and are as follows: 

Arkansas: In February 2019, Governor Asa Hutchinson (R) signed Arkansas’ trigger law which would ban abortion with the exception of “medical emergencies” defined in the bill as “a condition in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.” The law also states performing or attempting to perform an abortion would be an unclassified felony.

Idaho: In March 2020, Governor Brad Little (R) signed Idaho’s trigger law which would ban abortion in all cases with the exception of rape, incest, or endangerment to the life of the mother. The law would charge those who performed or attempted to perform an abortion with a felony. Additionally, the rape and incest exceptions would only apply if a police report was filed. The life for the mother exception is defined as an abortion that has “in good faith” been determined by a physician to be necessary to prevent the death of the pregnant women except in the case of threat of self-harm. 

Kentucky: In March 2019, Governor Matt Bevin (R) signed Kentucky’s trigger law which would ban abortion in all cases except when “necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.” The law, however, states a physician would have to first make “reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of the unborn human being.” The law also states “medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death to the unborn human being” would not be considered an abortion. Any person who performed or attempted to perform an abortion after this law was enforceable would be guilty of a Class D felony. 

Louisiana: In June 2006, Governor Kathleen Blanco (D) signed Louisiana's trigger law making her the first and only Democrat to do so. The law, much like in Kentucky, would ban all abortions with the exception of those needed “in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman” after all reasonable efforts to save both the life of the mother and unborn child are attempted. Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death to the unborn child would not be considered a violation of this law.

Mississippi: In March 2007, Governor Haley Barbour (R) signed Mississippi’s trigger law which would ban abortion except in cases where it was “necessary for the preservation of the mother’s life or where the pregnancy was caused by rape.” If convicted anyone, except the pregnant woman, who performed or attempted to perform an abortion in violation of this law would be imprisoned for not less than “one year and nor more than 10 years.”

North Dakota: In April 2007, Governor John Hoeven (R) signed North Dakota’s trigger law which would prohibit abortion except in the case of saving the life of the mother which is defined as an abortion which “may be performed by a physician when necessary in professional judgment to prevent the pregnant female's death.” Should this law go into effect, anyone who performed an abortion would be charged with a class C felony. 

Missouri: In May 2019, Governor Mike Parson (R) signed Missouri’s trigger law which would ban abortion except in the case of “a medical emergency.” If anyone were to perform or induce an abortion in violation of this law they would be “guilty of a class B felony” and “subject to suspension of his or her professional license.” This bill specifies that if there is 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 circumstance except to save the life of the mother. If a total ban is not possible, abortions shall be limited to women who are less than eight weeks gestational age, with a required fetal heartbeat or brain function test except, again, in the case of a medical emergency.

Tennessee: In April 2019, Governor Bill Lee (R) signed Tennessee’s trigger law which would prohibit abortion except to “prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” Those who would violate this law would be guilty of a Class C felony. 

South Dakota:  In February 2005, Governor Mike Rounds (R) signed South Dakota’s trigger law which would ban abortion except in cases where “appropriate and reasonable medical judgment” would determine “that performance of an abortion is necessary to preserve the life of the pregnant female.” Those found in violation of this law would be guilty of a Class 6 felony. 

Utah: In March 2020, Governor Gary Herbert (R) signed Utah’s trigger law which would ban abortion with the most far-reaching exceptions including:

  1. When determined the abortion is necessary to avert “the death of the woman on whom the abortion is performed or a serious risk of substantial and irreversible impairment of a major bodily function of the woman on whom the abortion is performed.” 
  2. Two physicians who practice maternal fetal medicine concur in writing that the fetus has a defect that is “uniformly diagnosable and uniformly lethal or has a severe brain abnormality that is uniformly diagnosable.” 
  3. The woman is pregnant as a result of rape or incest. 

The law states that in order to acquire an abortion due to rape or incest one must report the incident to law enforcement and the physician must verify that it was reported before performing the abortion. The law is also sure to define “severe brain abnormality” as “a malformation or defect that causes an individual to live in a mentally vegetative state.” It further goes on to explicitly state “severe brain abnormality” does not include “Down syndrome, spina bifida, cerebral palsy or any other malformation, defect or condition that does not cause an individual to live in a mentally vegetative state.” Any person who would perform an abortion in violation of this law would be guilty of a second degree felony. 

 

Joining the list? 

The state legislatures are currently battling over similar trigger bills in both Ohio and Texas. If approved, the states will join this list of those aiming to protect the unborn even further when constitutionally allowed. Both bills include an exception for abortions necessary to save the life of the mother but do not recognize the mother’s mental health in this exception. Ohio’s Senate Bill 123, would hold anyone who performed or attempted to perform an abortion to a first degree felony, while Texas’ Senate Bill 9 would charge those who attempted to perform an abortion with a second degree felony and those who successfully performed an abortion with a first degree felony. 

** It is important to note the woman seeking the abortion would not be charged if any of the current trigger laws or pending trigger bills became enforceable. 

Tweet This: It's important to note that women seeking abortion would not be charged if any current trigger laws or pending trigger bills go into force.

The Role of SCOTUS

The key to whether these trigger laws will ever be enforced lies in the hands of the Supreme Court of the United States. More than likely if they overturn Roe v. Wade the Supreme Court will toss abortion back to the states leaving the legality of abortion to be decided on the federal level. At least, that’s what many pro-life advocates are banking on. Another option would include a ruling which would limit abortion completely or partially nationwide.  

Pre-Roe Laws

Even if a state does not currently have a trigger law in place, many states DO have pre-Roe laws which they would most likely revert to upon the ruling, many of which would also make abortion illegal or substantially restricted. Nine of such states that have pre-Roe abortion bans still on the books include Alabama, Arizona, New Mexico, Oklahoma, West Virginia, and Wisconsin. Obviously, Roe supersedes these laws but would fail to do so in the event the ruling is overturned. In that case, these states would either adopt their pre-Roe laws or be forced to create new laws which would supersede the former legislation. 

Push Back 

While many pro-life advocates view trigger laws as a good first step in the right direction, others are not as fond of the legislation since besides laying out the initial ground rules for a post-Roe world, the laws do not do anything to save lives in the meantime. 

For example, Rose Mimm, the executive director of Arkansas Right for Life, admitted that her group has been disappointed by Supreme Court decisions that haven't restricted abortion access and because of that, they're focusing on immediate outcomes like heartbeat bills and common sense laws such as mandatory waiting periods.

"We're interested in saving babies now," Mimm said in a telephone interview with CBS News. "The trigger bill does nothing to save babies." 

Conclusion

As of now, we can only hope one day we will see a world where abortion is illegal and unthinkable. In the meantime, we can continue helping save lives, one woman at a time by providing physical and emotional support.

Skyler Lee

With a love for Jesus and a passion for protecting babies, Skyler found her way into the pro-life movement in 2016 and has helped save lives ever since. She currently serves as the Executive Director and lead pregnancy help consultant at Human Defense Initiative. Follow her on Twitter @skylerlee26. 

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