Analysis | US Supreme Court positioned to reverse abortion precedent, embolden states with trigger laws

An ​​initial draft majority opinion on the ongoing Dobbs v. Jackson Women’s Health Organization case was leaked to Politico two weeks ago, signaling the likelihood that the U.S. Supreme Court intends to authorize restrictions on women’s right to an abortion. Illustration by MORGAN SEIGLER, Illustrator

An ​​initial draft majority opinion on the ongoing Dobbs v. Jackson Women’s Health Organization case was leaked to Politico two weeks ago, signaling the likelihood that the U.S. Supreme Court intends to authorize restrictions on women’s right to an abortion. The decision would effectively undo the precedent of previous federal cases like Roe v. Wade and Planned Parenthood v. Casey.

“We hold that Roe and Casey (sic) must be overruled,” Justice Samuel Alito wrote in the opinion, which was delivered to the court system Feb. 10. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteeneth Amendment.”

Abortion Court Cases: Past to Present

Dobbs v. Jackson Women’s Health Organization disputes the constitutionality of a current law in Mississippi, dubbed the “Gestational Age Act,” which bans abortion after 15 weeks. The lawsuit was filed in federal district court by a doctor at Jackson Women’s Health Organization, which is the only licensed abortion clinic in the state. 

If the Supreme Court decides the law in Mississippi is constitutional, Roe v. Wade would be overturned and abortion rulings would be placed back into the hands of the states.

The 1973 court decision in Roe v. Wade distinguished abortion as a constitutional right in the United States. As a result, states were granted the autonomy to regulate abortion after the end of the first trimester or prohibit it entirely once a fetus reaches viability.

A woman named Norma McCorvey (Jane Roe) filed the lawsuit against former Texas General Attorney Henry Wade that would lead to the monumental case of the early 70s. The plaintiff argued the state’s ruling of abortion as illegal unless ordered by a doctor is unconstitutional.

In 1992, Roe v Wade was almost overturned with the decision of Casey v Planned Parenthood. In this case, Planned Parenthood led a lawsuit against former Pennsylvania Governor Bob Casey Sr., challenging a law known as the Pennsylvania Abortion Control Act. 

According to this law, individuals seeking an abortion were required to receive counseling sessions, after which they would be required to wait 24 hours before undergoing the procedure. Minors were also required to obtain parental consent, whereas adults were prompted for confirmation of spousal approval.

The court ruled to uphold all the restrictions imposed by the law from Pennsylvania — except for the requirement that patients acquire spousal approval — reaffirming Roe v. Wade’s decision that abortion is a constitutional right.

Trigger Laws

Currently, there are 13 states with “trigger laws” that would go into effect as soon as Roe v. Wade is overruled. States with trigger laws that would ban or severely limit abortion if Roe v Wade is overruled include Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Oklahoma, Texas, Tennessee, Utah and Wyoming. 

The trigger law in Arkansas would ban abortion in all cases with the exception of abortion to “save the life of the pregnant person in a medical emergency.” Performing or attempting to perform an abortion would be deemed an unclassified felony — meaning the perpetrator is punishable by up to $100,000, ten years in prison or both.

In Idaho, the trigger law would make abortion punishable by up to five years in prision, with exceptions allowed in order to prevent the death of the pregnant person or in cases of rape and incest. 

The trigger law in Kentucky, passed in 2019, defines pregnancy as starting with fertilization and would make abortion at any stage of pregnancy a felony. The only exception to this is when the pregnancy is deemed too much of a risk to the life of the pregnant person by a licensed physician.

Louisiana’s trigger law, known as the Human Life Protection Act, bans abortion except to prevent serious injury or death if a physician determines it to be necessary. The bill still permits contraceptive methods as long as they are administered before the pregnancy.

Mississippi's trigger law would go into effect after the state’s attorney general confirms the Supreme Court has overturned Roe v. Wade. 

The law defines abortion as using any substance or device to terminate a known pregnancy, unless it’s with the intention of increasing the probability of a healthy birth, to preserve the life or health of the child after birth or to remove a dead fetus. An exception to the ban on abortion is made in cases to save the mothers life or in case of rape, as long as a formal charge of rape has been officially filed.

The trigger law in Missouri would make anyone who performs an abortion guilty of a felony with the added possibility of losing their professional license. Permission to perform an abortion may be granted in the case of a medical emergency.

In the state of North Dakota, the trigger law would make abortions a felony but outlines multiple circumstances in which the practice may be permissible. These exemptions include cases of incest and sexual assault, the professional opinion of a doctor that the operation is necessary, to remove a dead fetus or to ensure a safe and healthy birth. 

Oklahoma’s trigger law makes abortions punishable by 10 years in prison or a $100,000 fine, except for in the case of a medical emergency or to save the life of a pregnant woman after a failed pregnancy.

The trigger law in South Dakota contends that abortion is punishable as a felony unless it’s deemed necessary by a medical professional to save the life of the pregnant person.

Tennessee has a trigger law, dubbed the Human Life Protection Act, which would go into effect 30 days after the Supreme Court overturns Roe v. Wade and ban all abortions in the state. Exceptions would persist to prevent death or risk of “substantial and irreversible impairment of major bodily function” to the pregnant person.

The trigger law in Texas would also go into effect 30 days after the Supreme Court ruling, effectively banning all abortions unless in the instance that it is deemed necessary to save the life of or prevent substantial injury to the pregnant person. This law defines pregnancy as starting from the moment of fertilization.

Utah’s trigger law would ban abortions with exceptions for cases of incest, to save the life of the pregnant person, to remove a dead fetus or a fetus with a diagnosable lethal defect, to remove an ectopic pregnancy or in case of rape — as long as it has been reported to law enforcement. 

The trigger law in the state of Wyoming would ban abortion from the moment the embryo or fetus has become viable except in cases of rape and incest or if the life of the pregnant person is in danger.