A trio of conservative states with so-called “trigger bans” on the books have moved closer to enacting a new set of abortion restrictions as a result of the circuitous domino effect that began with the Supreme Court’s decision to strike down Roe v. Wade.
In Texas, Tennessee and Idaho, the justices’ decision was not the relevant event springing the new limits to life. Rather, the landmark ruling was only the first falling domino, followed by the court’s issuance Tuesday of its formal judgment in the case, followed next by a 30-day period before the laws take effect.
The elaborate procedural circuitry has added an additional layer of complexity to the already confusing patchwork of state laws — and lawsuits — that emerged soon after the court upended the nearly 50-year constitutional right to terminate an unwanted pregnancy.
“Right now, there’s a lot of confusion,” said David Cohen, a law professor at Drexel University. “It may all shake out in the very near future to a stable landscape of some states with bans, other states with restrictions, and other states very permissive. But, it also may continue to have lots of uncertainty.”
“The more uncertainty, the more difficult it is for patients to navigate the process and get the care they need.”
Abortion is now banned in at least eight states, following the Supreme Court’s decision last month to overturn Roe and hand states virtually free rein to regulate the procedure.
Thirteen states had trigger bans on the books, three of which were set to take effect immediately upon Roe’s toppling. Trigger laws in seven other states required some additional action by officials before the bans kicked in. And three states — Texas, Tennessee and Idaho — had laws with a 30-day clock that started upon the Supreme Court’s formal judgment being issued.
Idaho’s trigger law is one such example, with the law set to kick in on Aug. 25. The new rule will make nearly all abortion illegal, with exceptions for rape, incest and to protect the life of the mother.
Several Idaho abortion restrictions are tied up in legal challenges. Planned Parenthood has sued over the abortion ban, saying it violates the Idaho Constitution. The group has a separate pending lawsuit that takes aim at Idaho’s Texas-like civil enforcement abortion ban.
Given the flood of litigation across the states, experts cautioned that these new trigger bans — once they take effect — could still get hung up in court fights.
“Even where bans have gone into effect, they could get challenged in court, they have to be interpreted with regulation, in some places,” said Rachel Rebouché, a professor at the Temple University School of Law. “Even when a ban goes into effect, I think we still can expect to see a lot of confusion.”
In mid-August, Tennessee’s trigger ban, known as the Human Life Protection Act, is set to take effect.
When it does, it will take precedence over a statewide abortion ban that kicks in around six weeks, when fetal cardiac activity can typically be detected. Tennessee’s new trigger ban will go even further, outlawing abortion at the time of fertilization, with only narrow exemptions.
In Texas, the state legislature in 2021 passed two major bills limiting abortion. The first law, known as Senate Bill 8, gained national attention for its novel enforcement mechanism that lets private citizens bring lawsuits for $10,000 or more for violations of the six-week abortion ban.
The state also passed a trigger ban during last year’s legislative session, which is set to kick in 30 days after the Supreme Court’s formal judgment issued. Under this trigger ban, abortions would be generally outlawed.
The Texas law imposes criminal and civil penalties, as well as professional discipline on abortion providers who violate the law. Those who run afoul of the trigger ban face second-degree felony charges, as well as a fine of at least $100,000.
In his majority opinion overturning Roe v. Wade last month, Justice Samuel Alito said that the five-decade abortion law framework under Roe and related cases had become unworkable. He suggested in the decision, Dobbs v. Jackson Women’s Health Organization, that handing control over to states would ultimately calm the fiery debate that has raged over abortion access in America for decades.
But the complicated state of the law surrounding abortion that has begun to emerge tells a different story, some court watchers say.
“We’re seeing that post-Roe and Casey, nothing could be further from the truth than to say this is a more workable system — and the trigger laws are a good example,” said Rebouché.
The shifting landscape creates uncertainty not only for people seeking to terminate an unwanted pregnancy, but also for medical providers and even those on the periphery of the medical decision.
“It creates confusion for anyone seeking an abortion, friends and family members of those seeking an abortion, and health care professionals seeking guidance on what kind of treatment they can provide —not just for abortion care — but for reproductive health care more generally,” said Naomi Cahn, a professor at the University of Virginia Law School.