LA leaked draft of the Supreme Court’s decision that showed it was about to be overturned by the Supreme Court took less than 48 hours. Roe v. Wade, Republicans in the Louisiana House of Representatives advanced a bill classifying abortion as homicide from “the moment of fertilization” and allowing prosecutors to charge both patients and providers with murder.
“We cannot wait on the Supreme Court,” State Rep. Danny McCormick, the bill’s sponsor, said during a committee hearing on Wednesday.
Louisiana has an abortion trigger law that allows the state to ban abortion immediately if it is overturned by the Supreme Court. Roe V. Wade But Brian Gunter, a pastor who worked with McCormick on the bill, characterized the complete ban as “woefully insufficient.” Financial penalties for violating the law were not enough, he explained. “No compromises, no more waiting,” he said at the hearing. The committee approved the bill with 7-2 votes.
While the Louisiana bill is more extreme than most other states’ proposed legislation, it exemplifies a larger trend sweeping Republican-led state legislatures nationwide. Numerous states have been encouraged by the Supreme Court draft opinion and are now trying to strengthen their anti-abortion legislation. Consequences include lengthy prison sentences for providers, suspending physicians’ medical licenses, and sizable fines on people who perform abortions. While national Republicans insist that the fear of prosecutions is exaggerated, state legislators have been working on laws that not only ban but also criminalize abortion.
Louisiana State Representative Danny McCormick addresses protesters in Baton Rouge, as they gather to oppose Louisiana’s economic shut down and stay-at-home orders.
Chris Graythen—Getty Images
“If the draft opinion that we saw earlier this week is anything close to the actual opinion, it’s going to give state legislatures carte blanche to restrict, ban abortion in all sorts of different ways,” says David S. Cohen, a law professor at Drexel University’s Kline School of Law. “It says ‘Get prepared with the most extreme bills possible. And when we give you the go ahead, hit the ground running.’”
Conservative state lawmakers’ eagerness to act aggressively stands in contrast to most Republican in the U.S. Congress, who largely avoided talking about the substance of the Supreme Court draft this week, in favor of focusing on the leak. Some Republican governors also took the initiative to slow down, saying that they wanted to wait and see what the Supreme Court decides before calling for special legislative sessions.
But it’s clear that as soon as the Supreme Court hands down its final decision in Dobbs v. Jackson Women’s Health OrganizationThe case over the Mississippi abortion law is challenging RoeThat means that the anti-abortion state legislatures will be prepared. From Jan. 1, through April 15, this year, more than 500 restrictions on abortion were passed by conservative-led states. If the Supreme Court overturns Roe, About half the U.S. states will ban abortions within a short time. This is a good thing. There are 13 states where trigger laws have been passed, making abortion illegal within a few days of the decision being made. Some laws are not immediately effective, so opponents to abortion use the time left before finalization to put together their plans and paperwork.
The moment is now for anti-abortion lawmakers
Advocates and lawmakers from Louisiana who voted in support of making abortion a crime this week seemed emotional about the possibility of achieving their goal. Critics criticized the bill and warned of its potential unintended consequences. Experts think that the bill could lead to criminal charges for emergency contraceptives as well as in vitro fertilation. The Louisiana bill differs from other states’ proposed legislation because it appears to allow the prosecution of the pregnant person as well, not just abortion providers. That’s something abortion opponents have avoided in recent years, but last month a Texas woman, Lizelle Herrera, was arrested over an alleged self-induced abortion, and if Roe Experts predict that more states will seek additional penalties after the original was overturned.
In Arkansas, the state’s trigger ban will make abortion a felony except to save the life of the mother. To take effect, the state’s attorney general must certify that the Supreme Court has in fact overturned Roe.
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Arkansas State Sen. Jason Rapert was the one who presented the trigger law. This week, he took to Facebook Live to describe the plan after receiving the leaked draft. “As soon as that decision is released, we’ll end all abortion in Arkansas except to save the life of the mother,” he told his listeners. “What’s required as soon as that decision is, within minutes, the attorney general of the state of Arkansas should certify that the Roe decision is legitimate and that immediately we see that we’ll end abortion.”
Rapert told TIME he was initially concerned about whether the state’s leadership would act because Arkansas earlier this year rejected a Texas-style bill that would allow private citizens to file lawsuits to enforce an abortion ban. So he wrote to the attorney general’s office this week to remind them of the responsibility added on the Facebook video that he would personally make sure his state followed through. “If we have anybody within the state of Arkansas, just like they had at the U.S. Supreme Court, that would try to interfere, that would try to disrupt the enforcement of Act 180, I will call for the legislature to convene and to impeach any such official immediately,” he said.
Arkansas Attorney General Leslie Rutledge is a Republican and indicated that she’s ready to sign off on the trigger law. “It will be my honor and a privilege of my lifetime to do just that,” she told reporters this week.
In Missouri, which also has a trigger ban in place, the state’s attorney general said he would also be prepared “immediately” to issue the opinion to put the state’s law into effect. Kristi Noem is the Governor of North Dakota saidShe would request a special session of the legislature, which lawmakers in Nebraska (and Indiana) have urged their governors. Oklahoma is currently implementing a trigger ban. The state has also adopted additional legislation this week. Oklahoma Gov. Kevin Stitt, Oklahoma Governor, signed Tuesday’s Texas-style abortion ban. This ban prohibits abortions in the first six weeks of pregnancy. Private citizens can also sue abortion providers. “I want Oklahoma to be the most pro-life state in the country,” Stitt tweeted upon signing the legislation. The law was immediately in effect and an emergency stop request by Oklahoma Supreme Court was rejected.
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Ohio’s state legislature is still in session. However, the legislators continue to consider two trigger ban legislations that could be brought before the Supreme Court. The Republican governor. Mike DeWine said on Tuesday he would have the state’s attorney general seek to revive a 2019 state law that bans abortions after fetal cardiac activity is detected, which happens as early as six weeks into pregnancy, before many people know they are pregnant. Courts have blocked the law since shortly after DeWine signed.
“I’m asking him to immediately go into court and ask the federal court to lift the stay that is on the bill that I have already signed,” DeWine said Tuesday after he won his primary race.
The Idaho Supreme Court has issued a trigger law which will take effect in 30 days. A new Idaho law, however, that permits civil lawsuits of Texas style against abortion providers, was also passed. While the legal battle against the law was progressing, the Idaho Supreme Court blocked the law. However, last week the Idaho attorney asked for the court’s permission to lift the stop and allow it to go into effect.
The resurrection of pre-Roe Abortion bans
State laws in some states prohibit abortions, even though they were not passed until 1973. Roe v. WadeSupreme Court decision recognized the Constitution’s right to choose. There are some cases where states can simply reenforce the laws immediately. Officials would have to request a court for permission to put them into effect if a judge declares them illegal.
That’s the case in West Virginia, where the state’s trigger law dates back to the mid-1800s and makes abortion a felony punishable with three to 10 years in prison. The law that was in effect was not repealed. A 1975 court decision merely stopped the law from being implemented because it violated the established precedents. Roe v. Wade. Also, if the Supreme Court rules in favor of the plaintiffs RoeState officials could request the lifting of the injunction by contacting the state supreme Court.
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That could happen extremely quickly, says Anne Lofaso, a law professor at West Virginia University’s Supreme Court Clinic. “The attorney general would immediately go to court and ask them to lift the injunction junction,” she says. “They could do it in days. It could be a day.”
Lofaso states that abortion rights advocates could bring a lawsuit against the move. But even in that case, West Virginia’s Republican-led legislature could pass new legislation fairly quickly.
Others have also passed restrictions on abortion that were blocked by the courts in recent years. They will attempt to reinstate them in their absence. Roe. Georgia has no trigger law. However, it passed in 2019 a law banning almost all abortions for six weeks. The Supreme Court has halted the 11th Circuit Court of Appeals from implementing the law, as it was challenged. State Rep. Ed Setzler, who sponsored the law, told TIME he is confident the law is “exactly where it needs to be” to go into effect. “As soon as Dobbs comes out, I think one can expect that the 11th will issue their opinion on the Life Act in Georgia, based on the Dobbs holding,” he says.
The law also provides “full legal recognition” to fetuses after cardiac activity by allowing parents to claim the fetus as a dependent on their state taxes and saying fetuses will be included in “population based determinations” for the state. Setzler hopes to prevent abortions starting at conception. However, he sees the implementation of his law as an important next step.
“As people become more aware and come face to face with the value of life in utero, perhaps we can get where we need to be, which is that we protect all life in the womb,” he says.
Many abortion advocates would prefer to travel to this area, but experts warn that states could end up there if they don’t have federal protection.
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