‘Trigger bans’ and anti-abortion laws will eliminate access in nearly half the US without Roe

The US Supreme Court appears likely to overturn key rulings enshrining abortion rights across the country, leaving states to determine whether to ban the procedure and force women to carry pregnancies to term, in a stark reversal of precedent upending bodily autonomy protections in America, according to a draft opinion leaked from the court on 2 May.

Roe v Wade and Planned Parenthood v Casey, a subsequent case that reaffirmed the landmark 1973 ruling, remain the law of the land until a ruling from the Supreme Court is formally reached, despite restrictive laws in place in several states that have severely limited access in the Roe era.

A draft opinion written by conservative Justice Samuel Alito suggests the court will “return the issue of abortion” to state governments, eliminating overarching federal protections and creating a patchwork of care with Republican-dominated states that have outlawed the procedure and Democratic-led states that allow access.

Without Roe, roughly half of US states could immediately or quickly outlaw abortion, including 13 states with so-called “trigger” bans in place – laws designed to take effect without Roe.

Nine states have laws in place that banned abortions before the Roe ruling but have never been removed from the books; those laws are expected to go back into effect if the Supreme Court overturns it.

Several states have moved to outlaw abortions at six weeks of pregnancy, before many women know they are pregnant, though many of those measures have been blocked by the courts. Other state-level measures to eliminate access include extreme limits on care that will force providers to close, or amendments to state constitutions that explicitly prohibit the right to an abortion.

At least four other states are likely to ban abortion in the wake of the Mississippi case, based on their recent legislative history and willingness among Republican officials to eliminate access, according to an analysis from the Guttmacher Institute.

In 2022, a wave of anti-abortion legislation in Republican-led states, emboldened by the Supreme Court’s forthcoming decision, has proposed eliminating abortion access in most cases and criminalising abortion care by making it a felony for providers to see abortion patients.

Within the first few months of the year, nearly 40 states introduced more than 200 bills to restrict access to abortion.

Meanwhile, four states and Washington DC have codified the right to abortion protections, while 12 states explicitly permit abortion care, according to the Guttmacher Institute.

The case of Dobbs v Jackson Women’s Health Organization marks the first major abortion rights challenge in front of the new conservative majority on the Supreme Court, which heard oral arguments in the case on 1 December.

Roe affirmed a constitutional right to abortion access under the 14th Amendment without excessive government intervention, effectively overruling many state laws that banned abortion, and prohibiting states from banning the procedure before fetal viability at roughly 23 weeks of pregnancy.

Casey upheld the “essential holding” in the Roe ruling and prohibited legal constrictions that constitute an “undue burden” on abortion access.

Nancy Northup, president of the Center for Reproductive Rights, which represents Jackson Women’s Health Organization, said in a statement to The Independent that “if the Supreme Court overturns Roe v Wade it will be an unjustified, unprecedented stripping away of a guaranteed right that has been in place for nearly five decades.”

“It would represent the most damaging setback to the rights of women in the history of our country,” she said. “It’s important to remember that the Court has not yet issued a decision and abortion remains legal in the United States.”

These are the 13 states where “trigger” bans could immediately take effect without Roe:

Arkansas

A trigger law in Arkansas prohits abortions in nearly all cases execpt in the event of a life-threatening medical emergency. Providers could face up to 10 years in prison and a fine of up to $10,000 if convicted.

Idaho

Abortion care providers could face up to five years in prison under Idaho’s trigger ban. The law makes exceptions if the procedure is to prevent the death of the mother or in the case of rape or incest.

The state was also the first to approve an abortion ban mirroring the Texas law, though the state’s Supreme Court temporarily blocked the law following a legal challenge from Planned Parenthood. Both Idaho’s governor and the state’s attorney general have suggested that the ban is unconstitutional.

Kentucky

A 2019 trigger law outlaws nearly all abortions and makes provider care a felony offense.

A federal judge also temporarily blocked a recently passed, sweeping anti-abortion law with myriad restrictions that effectively forced the state’s remaining clinics to close, even with Roe protections in place.

Louisiana

The state’s trigger law bans providers from performing an abortion or providing abortion medication in all cases, provided that the physician makes “reasonable medical efforts” to save the life of the mother and the fetus.

Mississippi

Within 10 days of the state’s attorney general confirming a ruling in Roe, abortions are illegal in the state except in cases of rape or when the procedure could save the mother’s life under Mississippi’s trigger ban.

The state’s law banning abortions at 15 weeks of pregnancy is at the centre of the current Supreme Court case to determine whether to overrule the Roe precedent.

Missouri

A 2019 state law makes abortion care a felony except in cases of medical emergencies.

North Dakota

A 2007 state law makes abortion care a felony except in cases where the procedure could save the mother’s life.

Oklahoma

A recently passed state law makes abortion care a felony punishable up to 10 years in prison with a fine of up to $100,000. It does not make exceptions for abortions from rape or incest but only to protect the mother’s life.

A separate measure banning abortion at six weeks of pregnancy will take effect immediately once it is signed into law by Republican Governor Kevin Stitt, who has pledged to “outlaw abortion” in the state.

South Dakota

The state’s 2005 trigger law makes it illegal for providers to perform an abortion except in life-threatening medical emergencies. The measures immediately goes into effect “on the date states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy.”

Tennessee

The state law making abortion care a felony for abortions in nearly all cases takes affect within 30 days after Roe is overturned.

Texas

The state’s 2021 trigger ban for abortions in nearly all cases goes into effect 30 days after Roe is overturned.

In January, the Supreme Court declined to intervene in a legal challenge involving the state’s law banning the procedure at six weeks, including in cases of rape or incest.

Utah

The state’s 2020 trigger ban makes abortion care a second-degree felony and outlaws all abortions except in cases of rape or incest, detection of severe birth defects, or to prevent the mother’s death or serious injury.

Wyoming

A recent Wymong trigger ban makes it illegal to perform an abortion, outlaws in nearly all cases except in cases of rape or incest or to prevent the death or severe injury of the mother.