Conservative Lawmakers Are Preparing for a Future Without Roe v. Wade

In the past week, multiple states have introduced or passed laws that would immediately ban abortion in the event of Supreme Court justices overturning Roe v. Wade.

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Feb 20 2019, 9:03pm

Conservative legislators are ramping up efforts to undermine abortion rights on the state level in anticipation of a near future without Roe v. Wade.

Over the last week, multiple states have introduced or passed so-called "trigger laws," or laws that would automatically ban abortion throughout the state if the Supreme Court overturns abortion rights on the federal level. Currently, just four states have trigger laws on the books—Louisiana, Mississippi, North Dakota, and South Dakota—and each went into effect in the early 2000s. Now, for the first time in more than 20 years, anti-choice state legislators are pushing for new trigger laws, this time with an eye on a newly conservative-tilting Supreme Court poised to overturn Roe.

"We've very rarely seen trigger laws introduced and now they're not just being introduced, but being seriously considered," Elizabeth Nash, the senior state issues manager at Guttmacher Institute, tells Broadly. "It's very nerve-wracking."

On Wednesday, Arkansas Governor Asa Hutchinson signed trigger law legislation, which would only consider endangerment of the life of the woman grounds for legal abortion if Roe v. Wade is overturned—there are no exceptions for rape, incest, or life-threatening fetal anomalies, according to ThinkProgress. "Sometimes those babies will make it," state Representative Mary Bentley, a Republican, told the site. "I can tell you, it's much easier for the mother to grieve if she knows she's done everything she can."

In Kentucky, a bill seeking to implement a trigger law made its way to the state Senate on Friday, after passing 69-20 in the House. And in Iowa, conservative lawmakers have decided not to pursue a legal battle surrounding a recent "fetal heartbeat" law, which was deemed unconstitutional, to focus on much more ambitious efforts to undo abortion protections with a constitutional amendment.

Alabama and West Virginia both found success in this approach in November, when voters in both states approved ballot initiatives that would put explicit anti-abortion language in their respective constitutions. Both include lines that read, "Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion," according to Pacific Standard.

Nash says there are political calculations informing both strategies: Trying to pass an anti-abortion ballot initiative can be an easy way to get large numbers of conservatives to the polls, she says; on the other hand, passing trigger laws can be an easier way to avoid lengthy and costly legal battles in the courts.

But whichever method anti-choice lawmakers choose, reproductive rights advocates say the message they're sending is clear: "They're signaling that they know the Supreme Court is going to overturn Roe," Robin Marty, the author of Handbook for a Post-Roe America, tells Broadly. "This is no longer something that might happen—they've been told it's going to happen."

Marty, who says she's been called the "doomsday prepper" of abortion, says lawmakers' renewed efforts to undermine abortion rights on the state level help create a portrait of what a post-Roe United States will look like, and give pro-choice activists an opportunity to prepare for what she frames as its eventuality.

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In addition to the growing number of states with trigger laws in effect, there are some two dozen states in total that would see an almost immediate ban on abortion if Roe were to be overturned, and another 11 the Center for Reproductive Rights has termed "at-risk," amounting to large swaths of the country turning into abortion deserts.

Other states, meanwhile, have taken steps to protect Roe since Supreme Court Justice Brett Kavanaugh's confirmation, like New York, which codified abortion rights into state law last month, and Illinois, whose Democratic lawmakers introduced legislation on Tuesday that could help turn the state into the "Midwest's abortion care oasis" in the absence of federally guaranteed abortion rights.

"Without Roe, we'll be seeing increased restrictions in states that have already been looking to eliminate legal abortion and stronger protections in states that have expressed wanting to provide abortion services," Nash says. "It will exacerbate existing fault lines."