What you need to know about “trigger laws” and their role in abortion access

If Roe falls, “trigger laws” will go into effect. Here’s what that means.

NEW YORK, UNITED STATES - 2022/05/03: More than three (3) thousand people rally on Foley Square for ...
Pacific Press/LightRocket/Getty Images

Conservatives’ anti-abortion movement has relied on a number of strategies. While the overturn of Roe v. Wade is chief among them, trigger laws provide the backing to make such an event immediately concerning. As the Supreme Court prepares to deliver a decision that will likely overturn Roe, you’ve probably seen the phrase “trigger laws” come up a lot lately.

Trigger laws will play a key part in defining a post-Roe America. There’s a lot of talk about which states have them and what that means for abortion access in the future. If you’re still unclear about what trigger laws are, though, no worries. Let’s break it down.

What are trigger laws?

Trigger laws are laws that aren’t enforceable when they’re passed. It might seem pointless to pass these types of laws, but trigger laws bank on one key factor changing in the future that would make them enforceable.

In the case of abortion, trigger laws ban abortion access. Since Roe is still in place, making abortion access a federally protected right, these laws can’t be enforced right now. But as Donna Crane, an adjunct professor at San Jose State University, told The New York Times, trigger laws are “on the books and operative immediately in the future event that the Court ever removed the protections of Roe.”

In 2017, Daniela Kraiem, associate director of the women and the law program at the Washington College of Law at American University, told Mother Jones that trigger laws were once “largely symbolic.” It was a way for states to begrudgingly give people their constitutional rights while still showing, “If we can ever go back, we want to go back.’’

But after former President Donald Trump appointed three conservative justices to the Supreme Court, Roe’s overturn became a question of “when,” not “if.” Conservatives in statehouses across the country rushed to pass trigger laws as a means of getting ahead of the Court’s eventual abortion decision.

Which states have trigger laws?

There are 13 states with trigger laws in place to automatically ban abortion following Roe’s overturn: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

Each trigger laws goes into effect at different times following Roe’s overturn. In South Dakota, it’s basically immediate, while Mississippi’s statute takes 10 days after the state attorney general confirms in writing that the Court has overturned Roe.

But it’s important to note that trigger laws aren’t just about banning abortion access. As Jessica Arons, a senior advocacy counsel at the ACLU, told The Cut, “Every time you have a legislature pass either an actual ban or the threat of a ban, which is what a trigger law is, then it sends a message that abortion is either a crime today, or it will be in the very near future, and that it should be.”

Anti-abortion trigger laws’ criminalization of abortion includes punishments like prison time and huge fines. For example, Oklahoma’s trigger law carries a 10-year prison sentence and a maximum $100,000 fine for providers. Although only 13 states have clear trigger laws in place to ban abortion now, the Guttmacher Institute noted that 23 states have laws on the books to restrict abortion rights if Roe gets overturned.

Do trigger laws only apply to abortions?

In recent years, trigger laws have become synonymous with abortion bans. But again, the phrase “trigger law” is just used to describe laws that are unenforceable at the time of their passing.

While anti-abortion lawmakers have capitalized on trigger laws to advance their agendas, these laws can exist in other areas, too. For example, at least nine states, including Arizona, Indiana, and Washington, have trigger laws to end their participation in Medicaid expansion if federal funding falls below a specific level. It’s definitely possible that conservatives will similarly rely upon trigger laws to attack other rights in the future.