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Overturning “Roe” Would Immediately Activate Abortion Penalties in 13 States

If SCOTUS overturns “Roe” without condemning trigger legislation, this could become the main strategy for conservatives.

Thousands of protesters are gathered at the Foley Square in New York City on May 3, 2022, after the leak of a draft majority opinion preparing for the court to overturn the landmark abortion decision in Roe v. Wade.

Fueling widespread anguish over this week’s revelation that Roe v. Wade will likely be overturned in the coming weeks is the reality that the end of Roe would immediately activate civil and criminal penalties for those who obtain abortions or assist people to obtain abortions in 13 states.

Roe v. Wade is the 1973 landmark case that provides persons with the capacity to become pregnant with a fundamental right to abortion access. Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization holds that because abortion is not a right “deeply rooted in history,” it is not an unenumerated right that warrants constitutional protection. If Roe is overturned, each state would determine its own rules regarding the legality of abortion. In this situation, states would be permitted to pass laws that ban abortions altogether, including outlawing exceptions for rape or incest. If the final opinion in Dobbs reflects Alito’s draft, it would be the first time in history that the Supreme Court takes away a fundamental right.

Quoting the late Justice Antonin Scalia’s dissent in Casey v. Planned Parenthood, a 1992 case that affirmed the fundamental right to abortion access in Roe, Alito writes, “The permissibility of abortion” is to be resolved “by citizens trying to persuade one another.” This glib reference to democratic deliberation grossly neglects the aftermath that awaits a post-Dobbs U.S. and how it would deprive persons with uteruses of a liberty protected by the Constitution. In reality, a resolution on abortion will not be worked out by citizens in the public domain or contested in the marketplace of ideas. Overruling Roe would immediately restrict abortion access in some states due to trigger legislation.

Trigger legislation is a law that contains both a substantive provision and a trigger provision. The substantive provision of the law outlines what the law would be if the court were to change any given precedent. In most states with anti-abortion legislation, the trigger provisions plainly state that abortion restrictions would take effect as soon as Roe is overruled. For example, Louisiana’s RS 40:1061, trigger legislation passed in 2006, bans all abortions without exception and reads, “… this Act shall become effective immediately upon, and to the extent permitted, by the occurrence of … any decision of the United States which reverses in whole or in part, Roe v. Wade … thereby restoring to the state of Louisiana the authority to prohibit abortion.” At present, many other states — Tennessee, Arkansas, Kentucky, North Dakota, Missouri, South Dakota and Utah — have passed anti-abortion trigger legislation that awaits and anticipates the U.S. Supreme Court overruling Roe v. Wade. To be sure, trigger legislation does not have to be as explicit as the 2006 Louisiana law. For example, in 2019 Georgia passed HB 481, which bans all abortions after six weeks; it also criminalizes all attempts to obtain an abortion after the six-week cutoff. These criminal statutes are currently unenforceable under Casey, but Alito’s draft makes clear that the court would be overruling both Roe and Casey. This means that, after a person endures a six-week pregnancy in the state of Georgia, self-termination of that pregnancy would be murder, traveling to a different state to obtain an abortion would be conspiracy to commit murder, and assisting someone with obtaining an abortion would be conspiracy to commit murder in a post-Dobbs world. This is because under Georgia law, a fetus is a legal human, or a resident of the state. If it is not yet clear that trigger legislation eschews the rule of law, it is worth noting that it poses a substantial threat to the legitimacy of our representative democracy.

Article III of the Constitution places trigger legislation beyond the reach of judicial authority. The article only permits the court to review cases or controversies that arise from enforceable law. Because trigger legislation lacks enforcement power until it is triggered, a plaintiff lacks standing to challenge its constitutionality. Texas’s SB8, which was passed in 2021, is “test case” legislation — a law that opposes case precedent and subjects its constitutionality to judicial review. Unlike trigger legislation, test cases provide the court with an opportunity to either affirm or overrule a previous opinion. Test cases often arise when private actors predict that they will have enough justices who will rule in favor of the legislation. While test cases and trigger legislation both challenge judicial supremacy, trigger legislation goes further by avoiding the rule of law because it cannot be struck down as unconstitutional. In effect, trigger legislation can never be unconstitutional because it only becomes law when the court agrees that the precedent it seeks to overturn should be overruled.

Trigger legislation poses a direct threat to democratic legitimacy. In a representative democracy, elected officials should represent the interests and preferences of their constituencies. While the legislative process varies across states, it is usually transparent and open to public engagement. Typically, a state senator or state representative drafts a bill, introduces the bill, sends it to committee for study, and places it on the calendar to be debated and voted on. If voters are dissatisfied with their representatives, elections serve as an accountability mechanism (i.e., officials can be voted out of office in the subsequent election cycle). But trigger legislation upends this norm.

Unlike enforceable law, trigger legislation operates provisionally, anticipating the court overturning undesirable precedents. This means that in extreme scenarios such as the 2006 Louisiana anti-abortion trigger legislation, a law which has been unenforceable for 16 years can become immediately binding on the current voters of Louisiana. This also presents a notice issue for the public and could cause temporary legal instability. One of the court tenets of our democracy is a fair notice dictate that requires the government to adequately inform its citizens of conduct that constitutes illegal activity. Trigger legislation does not afford the government this opportunity. For example, North Dakota, Arkansas and Idaho have no timeline for the enforcement of their abortion bans. In effect, once Roe is overruled, abortion activities in these states are immediately criminalized and carry punishable offenses. In these states, post-Dobbs life is bleak: the pregnant person self-terminating at home, the physician performing an abortion at the clinic, or the individual assisting the pregnant person obtain an abortion would have effectively committed a felony if their actions occur seconds after the Dobbs decision comes down from the court.

Additionally, trigger laws have the potential to become law without contemporary majority support. Citizens and interest groups have less of an incentive to put resources into repealing legislation that could possibly take effect, when there are other urgent political issues that are under active threat (i.e., voting rights in Georgia). Effectively steering clear of mass dissent until the next election, the state legislatures can be inattentive to the needs of present constituents and hopeful of a bench that overrules precedent and triggers inactive law.

A post-Dobbs U.S. opens the door for other controversial trigger legislation that can bait the majority-conservative Supreme Court. If the court overturns Roe without condemning the trigger legislation, this could become the go-to strategy for conservatives who aim to overrule settled law. To be clear, by Alito’s rationale, there are other unenumerated rights that the majority-conservative court would likely hold are not “deeply rooted in the Nation’s history” and thus do not warrant constitutional protection. These fundamental rights were created in landmark cases such as Brown v. Board of Education (a 1954 case outlawing segregated public schools), Gideon v. Wainwright (a 1963 case guaranteeing legal counsel to anyone accused of a crime), Loving v. Virginia (a 1967 case outlawing state legislation that banned interracial marriage), Lawrence v. Texas (a 2003 case invalidating sodomy laws that effectively criminalized same-sex intercourse), and Obergefell v. Hodges (a 2015 case guaranteeing the right to marry an individual of the same sex), among others. To offer an illustration of this strategy in effect, the Arkansas legislature can pass anti-interracial trigger legislation in its next legislative session that states: “Interracial marriage is prohibited in the state of Arkansas. This will take effect if and when the Supreme Court overrules Loving v. Virginia.” If the court subsequently finds that interracial marriage is not a fundamental right, then the substantive provision would become enforceable law in Arkansas.

The U.S. Supreme Court has been a venue where debates about civil liberties have ultimately resulted in expansion of democratic freedom. Landmark cases have been heralded as protecting the constitutional rights of all, but especially poor people, queer people, people of color and people with the capacity to become pregnant. If Alito’s leaked draft is indicative of how the court will rule in Dobbs, it should be clear to us all that the conservative majority of the court is not concerned with constitutional precedent or the legitimacy of the law. It is not concerned with democratic deliberation and whether state legislatures represent majority will. It is, quite plainly, a coalition of jurists who are members of an aggrieved political bloc. They seek to do nothing more than throw the U.S. democratic republic into further disarray, and trigger legislation only makes that process more expedient.

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