Twelve States are Poised to End Abortion This Summer. Here’s How.

The December 1st argument in Dobbs went well, with pundits across the spectrum predicting that a majority of Supreme Court Justices will uphold Mississippi’s ban on aborting unborn babies 15 weeks and older. The decision is expected in June. Many outlets covering the case have noted the existence of “trigger laws” in twelve states, which protect the right to life but do not become effective until Roe‘s reversal. Those twelve states are Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and Utah. Idaho passed its trigger law the same year Roe was decided; Texas passed its trigger law earlier this year.

As a lawyer, I was curious: exactly how is that “trigger” defined? If the Court foolishly attempts to legislate from the bench again — for instance, by replacing the current viability threshold with a 15-week one — would that count? Does the Court have to explicitly state that it is overturning Roe? How will we know when babies are legally protected? This turned out to be a fascinating research question, at least for a nerd like me. The states have taken a variety of approaches. Let’s dive in.

Announcement Provisions

News coverage has tended to treat trigger laws as “automatically” banning abortion after Roe‘s reversal. That’s true in Kentucky, Louisiana, South Dakota, Tennessee, and Texas, but the majority of trigger laws have another layer: some government official must make an announcement that the law is in effect.

In Arkansas, Mississippi, North Dakota, and Oklahoma, the Attorney General must certify that the trigger has occurred. Idaho requires a proclamation from its Governor. In Missouri, the announcement can come from either the Attorney General, the Governor, or a concurrent resolution of the General Assembly. All of the positions in question are held by reliably pro-life elected officials.

Utah is unique; there, the legislative general counsel makes the call. The Utah legislature reappointed John L. Fellows as legislative general counsel earlier this year. My research did not turn up anything definitive on Mr. Fellows’ right-to-life views, but I find it hard to believe that the Republican-dominated Utah legislature would allow an abortion supporter to hold that role.

Trigger Provisions

What, precisely, must happen in Dobbs for these pro-life laws to come into effect?

The most popular formulation is that the Supreme Court issues a decision “restoring to the state the authority to prohibit abortion.” Arkansas, Kentucky, Louisiana, North Dakota, and Tennessee have all adopted this language. South Dakota’s law is “effective on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy,” while Utah requires confirmation “that a court of binding authority has held that a state may prohibit the abortion of an unborn child at any time during the gestational period” (with “court of binding authority” defined to include the Supreme Court). In Missouri and Mississippi, what matters is whether it is “reasonably probable” that the state’s law “would be upheld by the court as constitutional.”

Idaho and Mississippi laws speak of a decision “overruling” Roe v. Wade. In Idaho’s view, Roe is overruled if “the states are again permitted to safeguard the lives of unborn infants before the twenty-fifth week of pregnancy.” Arkansas, Kentucky, Louisiana, Missouri, Tennessee, and Texas add that Roe can be reversed “in whole or in part.” In Arkansas and Oklahoma, the critical question is whether the “central holding” of Roe has been overturned. Planned Parenthood v. Casey defines Roe‘s “central holding” as follows: “that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” Dobbs clearly challenges that central holding because a 15-week-old fetus protected by Mississippi law is about two months shy of viability.

Kentucky and Louisiana laws protecting unborn children go into effect “to the extent permitted” by a Supreme Court decision, which could be helpful if the Court tries to draw a new line.

As you can tell by the fact that I have listed certain states more than once, these approaches often overlap. Take the Arkansas Human Life Protection Act of 2019 as an example; it becomes effective “upon certification of the Attorney General that “The United States Supreme Court overrules, in whole or in part, the central holding of Roe v. Wade . . . thereby restoring to the State of Arkansas the authority to prohibit abortion.”

Delay Provisions

Most of the twelve states with trigger laws seek to protect unborn children right away, with their provisions going into effect immediately upon the trigger or announcement. A few, however, have built delays into their laws. Mississippi’s law will go into effect 10 days following the Attorney General’s announcement. In North Dakota, Tennessee, and Texas, it’s 30 days. No doubt abortion businesses will strive to kill as many babies as they can during these perverse “grace periods,” as they did on the eve of Texas’s Heartbeat Act going into effect.

Sources

Arkansas: Human Life Protection Act of 2019, 2019 Arkansas Laws Act 180 (S.B. 149), Section 2. “This act becomes effective on and after the certification of the Attorney General that: (1) The United States Supreme Court overrules, in whole or in part, the central holding of Roe v. Wade, 410 U.S. 113 (1973), reaffirmed by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), thereby restoring to the State of Arkansas the authority to prohibit abortion; or (2) An amendment to the United States Constitution is adopted that, in whole or in part, restores to the State of Arkansas the authority to prohibit abortion.”

Idaho: Section 14 of S.L. 1973, ch. 197, provides: “In the event that the states are again permitted to safeguard the lives of unborn infants before the twenty-fifth week of pregnancy as a result of the Supreme Court of the United States overruling the decisions announced on January 22, 1973, in the cases of Doe et al v. Bolton et al No. 70-40, and Roe et al v. Wade No. 70-18, or an amendment to the United States Constitution overruling these decisions, the governor shall, upon his determination that such an event has occurred, make a proclamation declaring said event to have happened and the date of such event, and sections 1 through 10 of this act shall be and are then repealed and sections 11, 12, 13, 14, 15 and 16 of this act shall be in full force and effect on and after said date.”

Kentucky: KY ST § 311.772(2): “The provisions of this section shall become effective immediately upon, and to the extent permitted, by the occurrence of any of the following circumstances: (a) Any decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade, 410 U.S. 113 (1973), thereby restoring to the Commonwealth of Kentucky the authority to prohibit abortion; or (b) Adoption of an amendment to the United States Constitution which, in whole or in part, restores to the Commonwealth of Kentucky the authority to prohibit abortion.”

Louisiana: LSA-R.S. 40 § 1061(A): “The provisions of this Act shall become effective immediately upon, and to the extent permitted, by the occurrence of any of the following circumstances: (1) Any decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973), thereby, restoring to the state of Louisiana the authority to prohibit abortion. (2) Adoption of an amendment to the United States Constitution which, in whole or in part, restores to the state of Louisiana the authority to prohibit abortion.”

Mississippi: 2007 Miss. Laws Ch. 441 (S.B. 2391): “Section 2 of this act [prohibiting medically unnecessary abortions except in cases of rape] shall take effect and be in force from and after ten (10) days following the date of publication by the Attorney General of Mississippi in the administrative bulletin published by the Secretary of State as provided in Section 25–43–2.101, Mississippi Code of 1972, that the Attorney General has determined that the United States Supreme Court has overruled the decision of Roe v. Wade, 410 U.S. 113 (1973), and that it is reasonably probable that Section 2 of this act would be upheld by the court as constitutional.”

Missouri: Right to Life of the Unborn Child Act § 188.017: “The enactment of this section shall only become effective upon notification to the revisor of statutes by an opinion by the attorney general of Missouri, a proclamation by the governor of Missouri, or the adoption of a concurrent resolution by the Missouri general assembly that: (1) The United States Supreme Court has overruled, in whole or in part, Roe v. Wade, 410 U.S. 113 (1973), restoring or granting to the state of Missouri the authority to regulate abortion to the extent set forth in this section, and that as a result, it is reasonably probable that this section would be upheld by the court as constitutional; (2) An amendment to the Constitution of the United States has been adopted that has the effect of restoring or granting to the state of Missouri the authority to regulate abortion to the extent set forth in this section; or (3) The United States Congress has enacted a law that has the effect of restoring or granting to the state of Missouri the authority to regulate abortion to the extent set forth in this section.”

North Dakota: 2019 North Dakota Laws Ch. 126 (H.B. 1546): Ban on dismemberment abortion “becomes effective on the thirtieth day after the adoption of an amendment to the United States Constitution which, in whole or in part, restores to the states the authority to prohibit abortion, or on the thirtieth day after the attorney general certifies to the legislative council: 1. The issuance of the judgment in any decision of the United States Supreme Court or the United States Court of Appeals for the Eighth Circuit which would allow enforcement of section 1 of this Act [prohibiting dismemberment abortions]; or 2. The issuance of the judgment in any decision of the United States Supreme Court which, in whole or in part, restores to the states authority to prohibit abortion.”

Oklahoma: Section 18 of Laws 2021, c. 308, provides: “SECTION 18. This act shall become effective on and after the certification of the Attorney General that: 1. The United States Supreme Court overrules the central holding of Roe v. Wade, 410 U.S. 113 (1973), reaffirmed by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), thereby restoring to the State of Oklahoma the authority to prohibit abortion; or 2. An amendment to the United States Constitution is adopted that restores to the State of Oklahoma the authority to prohibit abortion.”

South Dakota: 2005 South Dakota Laws Ch. 188 (HB 1266), amending this prior act: “This Act is effective on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy.”

Tennessee: Text of abortion law “effective on the thirtieth day after issuance of a judgment overruling, in whole or part, Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), thereby restoring state authority to prohibit abortion, or on the thirtieth day after the adoption of an amendment to the United States Constitution restoring, in whole or part, state authority to prohibit abortion.”

Texas: Human Life Protection Act of 2021 “takes effect, to the extent permitted, on the 30th day after: (1) the issuance of a United States Supreme Court judgment in a decision overruling, wholly or partly, Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992), thereby allowing the states of the United States to prohibit abortion; (2) the issuance of any other United States Supreme Court judgment in a decision that recognizes, wholly or partly, the authority of the states to prohibit abortion; or (3) adoption of an amendment to the United States Constitution that, wholly or partly, restores to the states the authority to prohibit abortion.”

Utah: “The provisions of this bill take effect on the date that the legislative general counsel certifies to the Legislative Management Committee that a court of binding authority has held that a state may prohibit the abortion of an unborn child at any time during the gestational period, subject to the exceptions enumerated in this bill.” (A “court of binding authority” is defined to include the U.S. Supreme Court.)