Understanding Abortion Trigger Laws And Their Impact

Abortion trigger laws are laws passed by a legislative body that only go into effect once a certain event happens. In the context of abortion, these laws are designed to be triggered and take effect automatically or by quick state action if Roe v. Wade is overturned. Thirteen states have passed so-called trigger laws that were designed to outlaw most abortions if the high court threw out the constitutional right to end a pregnancy.

What are the penalties for providing abortion services?

Trigger laws are passed by a legislative body but only go into effect once a certain event happens. In the context of abortion laws, the "trigger" is often the overturning of Roe v. Wade, the 1973 Supreme Court ruling that established abortion as a fundamental right. After Roe was overturned in June 2022, abortion policies and reproductive rights were left to individual states.

Penalties for Providing Abortion Services

The penalties for providing abortion services vary depending on the state and the specific abortion ban in effect. Here are some examples of penalties from different states:

• Texas: According to the Texas State Law Library, there are several criminal penalties related to providing abortions. For example, performing an abortion without providing the required sonogram and informational materials is a misdemeanour offence. Performing an abortion without holding admitting privileges at a hospital within 30 miles is a Class A misdemeanour. Providing a medical abortion in violation of Subchapter D of the Texas Health and Safety Code is a state jail felony.
• Oklahoma: After Roe was overturned, Oklahoma became the first state to fully ban abortion, with very limited exceptions. Anyone who provides or attempts to provide an abortion service will be charged with a Class D felony, punishable by up to 10 years in prison and a fine between $10,000 and $100,000.
• South Dakota: If Roe is overturned, anyone who provides or attempts to provide an abortion will be charged with a felony, punishable by two to five years in prison. Any health care professional who performs or attempts to perform an abortion will have their license suspended for at least six months after the first offence and permanently revoked after the second offence.
• Florida: Florida's abortion ban punishes any person who "willfully performs, or actively participates in, a termination of pregnancy" with up to five years in prison, a fine of up to $5,000, loss of their medical license, or a combination of these penalties.

It is important to note that the penalties for providing abortion services can vary even within a single state, as different abortion bans may have different penalties. Additionally, some states have multiple types of bans in place, and state officials will determine which ban to enforce.

What are the exceptions to abortion trigger laws?

In June 2022, the U.S. Supreme Court overturned Roe v. Wade, allowing states to ban abortion. Since then, 14 states have made abortion illegal.

Thirteen of these states have laws in place that are designed to be "triggered" and take effect automatically or by quick state action if Roe v. Wade no longer applies. These states are Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

While all trigger bans have the same intent of banning abortion, their implementation mechanisms, timelines, and other details differ. Most trigger bans include very limited exceptions, but these are difficult, if not impossible, for people seeking abortions to qualify for in real life.

• Pregnant person's life is in danger: This is the most common exception in trigger laws. It allows for abortion if the pregnant person's life is at risk.
• Medical treatment accidentally terminates pregnancy: In some states, such as Oklahoma and Texas, trigger laws include an exception for cases where a medical provider performs treatment that accidentally results in the termination of a pregnancy.
• Pregnant person is a victim of rape or incest: A few states, including North Dakota, South Dakota, and Wyoming, have trigger laws that allow for abortion if the pregnant person is a victim of rape or incest and has reported the incident to law enforcement.
• Risk of substantial and irreversible impairment of a major bodily function: Some trigger laws, such as those in South Dakota and Wyoming, include an exception if the pregnant person is at serious risk of substantial and irreversible impairment of a major bodily function.
• Lethal fetal abnormality: In Wyoming, abortion is allowed if a lethal fetal abnormality is found.

It is important to note that these exceptions are often narrow and may not provide meaningful access to abortion services. The criteria to qualify for these exceptions can be challenging to meet, and the process to obtain approval can be complex and time-consuming.

How do trigger laws work?

Trigger laws are passed by a legislative body but only go into effect once a certain event happens. In the case of abortion trigger laws, the "trigger" is the overturning of Roe v. Wade, the 1973 Supreme Court ruling that established abortion as a federal constitutional right.

In June 2022, the Supreme Court did overturn Roe v. Wade, giving states the power to restrict or ban abortion. This decision "triggered" the abortion trigger laws in 13 states: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

The specifics of these trigger laws vary by state. Some went into effect immediately, while others were enforced 30 days after the overturning of Roe v. Wade. Some require an additional step, such as certification by the state attorney general, to be implemented. The penalties for providing abortion services also differ between states, ranging from fines to felony charges and prison sentences.

Most trigger laws include limited exceptions, such as when the pregnant person's life is in danger, but these are often difficult to qualify for in practice.

Which states have trigger laws?

In June 2022, the U.S. Supreme Court overturned Roe v. Wade, which for nearly 50 years protected the federal constitutional right to abortion. This gave states the authority to restrict or prohibit abortion altogether.

Prior to the Court's decision, many states enacted trigger laws to ban abortion should Roe v. Wade be overturned. Thirteen states have laws in place that are designed to be "triggered" and take effect automatically or by quick state action if Roe no longer applies. These states are:

• Arkansas
• Idaho
• Kentucky
• Louisiana
• Mississippi
• Missouri
• North Dakota
• Oklahoma
• South Dakota
• Tennessee
• Texas
• Utah
• Wyoming

In addition to these 13 states, a further 13 states are certain or likely to move quickly to ban abortion, according to the Guttmacher Institute. This brings the total number of states that are certain or likely to ban abortion to 26.

The legality of abortion in the United States and the various restrictions imposed on the procedure vary significantly depending on the laws of each state or other jurisdiction. While some states prohibit abortion at all stages of pregnancy, others permit it up to a certain point, and some allow abortion throughout a woman's pregnancy.

What are the legal challenges to abortion trigger laws?

Trigger laws are passed by a legislative body but only go into effect once a certain event happens. In the case of abortion trigger laws, the event that triggers them is the overturning of Roe v. Wade, which occurred in June 2022.

Since the overturning of Roe v. Wade, 14 states have made abortion illegal. The abortion trigger laws in these states have faced legal challenges, with varying outcomes. Here are some examples:

Arkansas

Abortion is illegal in Arkansas, with an exception for abortions necessary to save the pregnant individual's life. There are no exceptions for rape, incest, or fatal fetal abnormalities. Doctors who perform abortions in Arkansas face up to 10 years in prison and fines of up to $100,000.

Kentucky

Abortion is illegal in Kentucky, except when necessary to prevent the patient from dying or to prevent the permanent impairment of a "life-sustaining organ". There are no exceptions for rape, incest, or fatal fetal abnormalities. Performing an illegal abortion in Kentucky is a Class C felony, punishable by 5 to 10 years in prison and fines of $1,000 to $10,000.

The ACLU has sued the state, claiming that the state constitution recognizes abortion as a right. A temporary restraining order was issued by a circuit court judge, blocking enforcement of the state's abortion ban. However, the Kentucky Supreme Court ruled that abortion providers lacked standing to challenge the state's abortion ban.

North Dakota

After Roe v. Wade was overturned, North Dakota moved to ban "almost all abortions, except in the case of rape, incest, or where the mother's life is at risk". The ban was temporarily blocked by a court and later permanently enjoined by Judge Bruce Romanick in 2024. Performing an abortion under the proposed ban was a Class C felony, punishable by up to five years in prison and a $10,000 fine.

Utah

A near-total abortion trigger ban was passed by the Utah state legislature in 2020. However, this law is being challenged in court by Planned Parenthood of Utah, which argues that it violates the state constitution's guarantees of gender equality and the right to determine family composition. The law was enjoined from going into effect by a state trial court, and the Utah Supreme Court upheld that injunction in 2024.

Arizona

Arizona has seen legal battles over which abortion ban to enforce after the Dobbs decision: a 15-week ban trigger law passed in 2022 or an older total ban from 1864. The Republican-controlled Arizona Supreme Court ruled in 2024 that the 1864 law could be enforced. However, the Arizona Legislature repealed the 1864 law, leaving the 15-week ban in place.

Georgia

Georgia passed an abortion law in 2019 that prohibits abortions after a fetal heartbeat is detected, usually around six weeks. The law was blocked by a federal judge but was reinstated after the Dobbs ruling. A legal challenge was filed, arguing that the law violated the US Constitution when it was passed. The Georgia Supreme Court sent the case back to a lower court, which found that the state constitution protects a right to privacy, and that access to abortion before fetal viability is part of that right. The ruling struck down the law, but it was later provisionally restored by the Georgia Supreme Court, pending the resolution of an appeal.

Texas

Texas passed a trigger law in 2021 that would ban abortion 30 days after Roe v. Wade was overturned. This law went into effect on August 25, 2022, and Texas completely banned abortions, except when the pregnant woman's life is at risk. However, this ban has been challenged in court by five women who suffered serious pregnancy complications and were denied abortions, putting their lives and health in danger.

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