A Woman’s Right to Choose is Under Fire: What is an Anti-Abortion Trigger Law?

Like bullets in a loaded gun, certain laws are already written and waiting to go into effect as soon as circumstances change; these are known as trigger laws.[1] In the United States, twenty states have laws written that will “ban or severely restrict abortion if Roe v. Wade is overturned.”[2] The Arkansas chapter of the American Civil Liberties Union referred to Arkansas’s trigger laws as “an extreme and unnecessary attack on women and their health.”[3] But what do these trigger laws actually say, and why were they created? This post will cover both of those issues.

While forty percent of states have laws that would ban or severely restrict abortion access if Roe is ever overturned, not all the laws are the same. Some states have pre-Roe abortion bans that could become enforceable again if Roe is overturned.[4] Other states that may not have had laws to ban abortions before Roe created post-Roe laws that will either severely restrict or outright ban abortions if Roe is overturned.[5] The most recent discourse surrounding anti-abortion trigger laws and abortion rights, in general, is arising from Mississippi, so this state will be evaluated first.

On December 1, 2021, the Supreme Court heard oral arguments in the case of Dobbs v. Jackson Women’s Health Organization.[6] In that case, the Respondent was challenging a Mississippi law called the Gestational Age Act,[7] which prohibits all abortions after fifteen weeks of pregnancy.[8] Based on the passage of the Gestational Age Act, it is no surprise that Mississippi also has a trigger law that will ban all abortions should Roe be overturned.[9] The trigger law,[10] passed in 2007, will permit abortions only when the mother’s life is at risk[11] or the pregnancy resulted from a rape properly reported to the police.[12]

The Mississippi law opens with:

From and after ten days following the publication by the Attorney General of Mississippi that the Attorney General has determined that the United States Supreme Court has overruled the decision of Roe v. Wade, and that is it reasonably probable that this section will be upheld by the Court as constitutional, this section will read as follows.[13]

This declaration creates a trigger law. It sets a time when the law will become effective and creates a provision that must be fulfilled for the law to become effective. Under this law, the triggering event is the overturning of Roe and the time frame for effectiveness is ten days after the triggering event.[14]

Meanwhile, Arkansas has been named “the most pro-life state” in the country,[15] and it also has a trigger law that would ban abortions if Roe is overturned.[16] Created in 2019, this law has a contingent effective date section with language similar to the Mississippi trigger law.[17] It explains that the act will become effective when the Attorney General determines that the central holding in Roe has been overturned or the U.S. Constitution is amended to restore “to the State of Arkansas the authority to prohibit abortion.”[18] There is no exact time frame given, so the ban could seemingly go into effect the same day Roe is overturned. The abortion ban in the Arkansas law is even stricter than that of Mississippi. The Arkansas ban only allows for abortions if the mother’s life is in jeopardy; there are no exceptions made for pregnancies that result from rape or incest.[19] In addition to this 2019 trigger law, Arkansas lawmakers also introduced the Arkansas Unborn Child Protection Act,[20] which would have imposed a fine of up to $100,000 and jail time if an abortion was performed.[21] This law was blocked by a federal judge in July of 2021.[22]

The language in both of the Arkansas anti-abortion laws offers insight as to why these trigger laws are being enacted by states. The 2019 Arkansas trigger law explains that “new scientific advances have demonstrated . . .  that life begins at the moment of conception and the child in a woman’s womb is a human being[.]”[23] Although this view may be shared by other lawmakers, there are still debates in the scientific community about what constitutes a human life prior to birth.[24] Arkansas also offers the justification that “scientific evidence and personal testimonies document the massive harm that abortion causes to women[.]”[25] This argument is contested by abortion providers such as Planned Parenthood.[26] Arkansas goes on to claim that: public attitudes favor adoption over abortion; the State of Arkansas has a duty to protect the lives of unborn children; and public funds should not be used for abortions.[27] In general, attitudes about the legality of abortions vary based mostly on religious affiliation.[28] Around seventy-seven percent of white evangelical Protestants believe abortion should be illegal in all or most cases, whereas sixty-three percent of white Protestants who are not evangelical believe abortion should be legal in all or most cases.[29]

Regardless of the intentions of lawmakers, anti-abortion trigger laws are already written and waiting to go into effect as soon as Roe is overturned. These trigger laws threaten the rights of people all around the country who may need to utilize safe abortion procedures after the possible overturning of Roe. As of right now, the central holding in Roe is still good law, but that holding is in jeopardy.[30] Supreme Court Justice Amy Coney Barrett has not been explicit about her views on abortion, but she was appointed after former President Trump publicly announced he was only nominating pro-life justices.[31] The shift to a conservative majority on the Supreme Court makes the overturning of Roe a greater possibility than in the past.[32] The trigger could be pulled on Roe as early as this year[33] leading to the enforcement of abortion bans across the country. When polled, nearly two-thirds of Americans did not realize that steps were being made to overturn Roe,[34] but a woman’s right to choose is under fire whether we know it or not.

[1] Matt Berns, Trigger Laws, 97 Geo. L. R. 1639, 1640-41 (2009) (“substantive provisions will not take effect until a change in constitutional law would allow them to be upheld by the courts”).

[2] Sarah McCammon, ‘Trigger laws’ are abortion bans ready to go if ‘Roe v. Wade’ is overturned, NPR (Dec. 6, 2021), www.npr.org/2021/12/06/1061896291/trigger-laws-are-abortion-bans-ready-to-go-if-roe-v-wade-is-overturned [perma.cc/L7C6-62ME].

[3] ACLU Arkansas Statement on Abortion Ban Passed By General Assembly, ACLU (Feb. 14, 2019), www.acluarkansas.org/en/press-releases/aclu-arkansas-statement-abortion-ban-passed-general-assembly [perma.cc/GU7W-6LDQ].

[4] Casey Parks, Twelve States have abortion ‘trigger laws.’ What are they?, Wash. Post (Dec. 7, 2021), www.washingtonpost.com/dc-md-va/2021/12/07/what-is-an-abortion-trigger-law/ [perma.cc/G6Q3-Y2KA]. Those states include Arizona, Michigan, West Virginia, and Wisconsin. Id.

[5] Id. Within this category there are two types of laws: “post-Roe laws that will ban or restrict some or all abortions” and trigger laws that “would ban nearly all abortions.” Id. The states with laws that would restrict or ban some or all abortions include Georgia, Idaho, Iowa, Kentucky, Louisiana, Missouri, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, and Utah. Id. The states with trigger laws that would ban all abortions include Alabama, Arkansas, Mississippi, Oklahoma, and Texas. Id.

[6] Dobbs v. Jackson Women’s Health Organization, No. 19-132 (U.S. filed June 15, 2020).

[7] Miss. Code Ann. § 41-41-191 (2018).

[8] Id.

[9] See Parks, supra note 4 (showing that Mississippi has a trigger law that will ban all abortions if Roe is overturned).

[10] Miss. Code Ann. § 41-41-45 (2007).

[11] Bobby Harrison, Key Democrats helped pass 2007 law to ban abortions if Roe is overturned, Miss. Today (Dec. 8, 2021), www.mississippitoday.org/2021/12/08/mississippi-abortion-trigger-law-supreme-court-roe-v-wade/ [perma.cc/ZMW7-HB2L].

[12] Abortion Rights, ACLU, www.aclu-ms.org/en/know-your-rights/abortion-rights [perma.cc/4E5T-FEZJ] (last visited Jan. 21, 2022).

[13] Miss. Code Ann., supra note 10.

[14] Id.

[15] Katie Glenn, Arkansas Ranked ‘Most Pro-Life State’ for Second Straight Year in Americans United for Life’s ‘Life List 2022,’ Am. United for Life (Nov. 15, 2021), www.aul.org/2021/11/15/arkansas-ranked-most-pro-life-state-for-second-straight-year-in-americans-united-for-lifes-life-list-2022/ [perma.cc/6E4A-DWH7].

[16] Ark. Code Ann. §5-61-301 (West 2019).

[17] Id.

[18] Id.

[19] Id.

[20] S.B. 6, 93rd Gen. Assemb., Reg. Sess. (Ark. 2021).

[21] Id.

[22] Worth Sparkman, What SCOTUS’ docket means for Arkansas, Axios (Dec. 2, 2021), www.axios.com/local/nw-arkansas/2021/12/02/scotus-abortion-docket-means-arkansas [perma.cc/MB2D-82XU].

[23] Ark. Code Ann. §5-61-301 (West 2019).

[24] Asim Kurjak & Ana Tripalo, The Facts and Doubts About Beginning of the Human Life and Personality, Nat’l Ctr. for Biotech. Info. (Feb. 2004), www.ncbi.nlm.nih.gov/pmc/articles/PMC7245522/ [perma.cc/5YJX-MTKL] (“Proper answer to the question ‘How to define human life?’ is complicated”).

[25] Ark. Code Ann. §5-61-301 (West 2019).

[26] What facts about abortion do I need to know?, Planned Parenthood, www.plannedparenthood.org/learn/abortion/considering-abortion/what-facts-about-abortion-do-i-need-know [perma.cc/Z3L2-9RRW] (last visited Jan. 23, 2022) (“In fact, abortion is one of the safest medical procedures out there. Overall, about [one] in [four] women in the U.S. will have an abortion by the time they [are forty-five] years old”).

[27] Ark. Code Ann. §5-61-301 (West 2019).

[28] Carrie Blazina, et. al., Key facts about the abortion debate in America, Pew Rsch. Ctr. (June 17, 2021), www.pewresearch.org/fact-tank/2021/06/17/key-facts-about-the-abortion-debate-in-america/ [perma.cc/8VD5-CSCV].

[29] Id.

[30] Steve Benen, With Roe precedent in jeopardy, most don’t recognize the threat, MSNBC (Dec. 8, 2021), www.msnbc.com/rachel-maddow-show/roe-precedent-jeopardy-most-don-t-recognize-threat-n1285605 [perma.cc/8ZJK-GHUB](“[I]t’s obvious that reproductive rights in the United States are facing the prospect of a dramatic change”).

[31] Sarah McCammon, A Look At Amy Coney Barrett’s Record On Abortion Rights, NPR (Sep. 28, 2020), www.npr.org/2020/09/28/917827735/a-look-at-amy-coney-barretts-record-on-abortion-rights [perma.cc/5YPY-G8EN].

[32] Julie Rovner, Conservative Judges Seem Poised to Overturn Roe’s Abortion Rights, Kaiser Health News (Dec. 1, 2021), www.khn.org/news/article/supreme-court-conservative-justices-seem-poised-to-overturn-roe-v-wade-abortion-rights/ [perma.cc/6TX3-MXG3].

[33] See Joseph Fawbush, Why the Dobbs v. Jackson Women’s Health Organization Abortion Case is Different, FindLaw (Dec. 1, 2021), www.findlaw.com/legalblogs/supreme-court/why-the-dobbs-v-jackson-womens-health-organization-abortion-case-is-different/ [perma.cc/4MML-MDXD] (explaining that the decision in Dobbs v. Jackson Women’s Health will come out during the spring 2022 Supreme Court term).

[34] Benen, supra note 30.