Now what? 'Trigger laws' go into effect if Roe v Wade is struck down

AP Photo/Mariam Zuhaib

Thanks to some liberal activist working somewhere at the Supreme Court, the big news today is that it is very likely that Roe v Wade will be overturned. According to a leak provided to Politico, Justice Samuel Alito wrote the majority opinion in a draft of the court’s decision. Allegedly. If the story turns out to be factual, the question becomes what happens next?

I don’t think I’m going out on too long of a limb to assume it was a liberal activist who provided the leak to Politico. That insider-style online publication is written by writers on the left. It would be a natural place to leak such a momentous decision. It appears that the big scoop isn’t the only one, either, with the news that Chief Justice Roberts may be looking to save some of Roe coming out last night, too. Also, the FBI may be called in to get to the bottom of the leak. What a mess.

We know that progressives and other Democrats are hellbent to destroy America’s major institutions, including the Supreme Court. One way to do that is to pack the court with additional justices. Democrats think the answer to always winning legal challenges is to just pack the court with more liberal justices. That argument surfaced quickly again on social media from Senate Democrats along with the call to end the filibuster in the Senate and blaming former President Trump for “stealing two Supreme Court seats.” One former Planned Parenthood worker, now a U.S. Senator, is particularly agitated.

So, what really happens next if Roe v Wade is overturned? Abortion reverts back to being an issue for individual states, as it was pre-Roe v Wade. Up until 1973 abortions were legal in some states but not others. For example, when I was growing up in Louisiana, abortion was not legal. That was at a time of a Democrat-controlled South, too, long before the Republican Revolution in 1994. Other states, like New York for example, legalized abortion. If the Alito opinion becomes the official ruling by the Supreme Court, ‘trigger laws’ will go into effect in states that strive to limit abortion.

In Texas, the state legislature passed Senate Bill 8 which makes abortion illegal after a heartbeat is detected. The Texas law is unique in that it puts civilians in charge of reporting abortions and filing civil court charges against abortionists and people who help a woman receive an abortion. The trigger in Texas is if Roe v Wade is overturned, district attorneys will have the power to decide whether or not to pursue criminal charges against a woman (er, birthing person) who underwent an abortion. You may remember that last month Jazz wrote about a Texas woman who was arrested and charged with murder for getting an abortion. That case didn’t hold up and was dismissed at the time.

Abortion is still legal in Texas, by the way, even with the latest legislation in effect. You wouldn’t know that to listen to media coverage, though.

“That type of criminalization, usually ends up falling on and poor folks — Brown and Black folks,” says board director for Frontera Fund Alexis Bay. “We saw this in the case in Starr County, affecting people in rural communities in Texas.”

In Texas, the “trigger law” was created before Roe but overturning means prosecutors could choose to fire off this law, further endangering women who would seek abortions by other means.

If Roe v Wade is overturned, abortion will become illegal in 13 states. The case before the Supreme Court is over a law in Mississippi that makes abortion illegal after 15 weeks. That kind of law is usually known as a heartbeat law because 15 weeks is normally when a heartbeat can be detected. State legislatures in red states have been busy writing restrictions on legal abortion in anticipation of the Supreme Court – now with a solid conservative majority – ruling in favor of overturning Roe v Wade. Trigger laws in place in these states mean abortion will immediately be illegal.

Wyoming is the 13th state to pass a a “trigger law” in place — an abortion ban that would kick in right away if the court completely overturns its precedents.

Four states — Alabama, Louisiana, Tennessee and West Virginia —have even amended their constitutions to prohibit any protections for abortion rights.

Oklahoma state lawmakers passed a bill in late April that would modify the language of the trigger law to ban abortions if the court “overrules in whole or in part” Roe v. Wade and Planned Parenthood v. Casey.

Several other states don’t have trigger laws in place but would likely move quickly to ban or tightly restrict the procedure if the court clears the way: Florida, Indiana, Montana and Nebraska would be prime candidates, according to analysis from the Guttmacher Institute, a reproductive rights research organization.

Alabama, Georgia, Iowa, Ohio and South Carolina have all enacted restrictive laws that were then blocked by federal courts. They could try to revive those policies in a post-Roe world.

Some states, like Michigan and Wisconsin, have pre-Roe abortion bans still on the books, but those would not immediately take effect even if Roe disappears, Elizabeth Nash, a lead state policy analyst for the Guttmacher Institute, a reproductive rights research and policy organization, told Axios back in October.

“It would take some kind of action,” Nash said, such as an attorney general issuing an opinion, a state filing a court case, etc.
For some states, it “might” even be easier to pass a new law prohibiting abortion instead of starting the process to make a pre-Roe ban take effect, Nash noted.

However, blue states have also been busy with legislation but on the other side of the argument. States like California and Colorado have passed laws that protect legal abortions if Roe v Wade is overturned. At least 17 states and Washington, D.C., have enacted laws that would automatically keep abortion legal. Currently, Senator Susan Collins (R-Maine) is working in the Senate to codify Roe v Wade, so there’s that, too.

Alito’s draft was written in February. It is only now surfacing. Is that because Democrats are so freaked out over what is likely to be a horrible midterm election cycle for them? The leak was probably done to pressure the conservative justices into changing their vote. Chief Justice Roberts will probably side with the liberal justices and try to straddle the fence, as he did with his opinion on Obamacare. The other pro-life justices sure look to be firm in their opinion, though, and it’s very unlikely that any of them will change their opinion now. If anything, this will solidify pro-life people against what is coming from the left who are so committed to abortion on demand, right up to the time of delivery.

I hope the leaker is found and held accountable. I hope Politico is held accountable for their decision to publish the leaked information. And, I’ll once again thank Senator Mitch McConnell for his master control of the Senate during the Trump years. His effective leadership pushed through judicial nominations, including Supreme Court nominations, and the results of his work are seen now.