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If Roe v. Wade is overturned, many states may limit access to abortion immediately


If the Supreme Court overturns Roe v. Wade, many states can end or curtail access to abortion almost immediately because of what are known as trigger bans. The Guttmacher Institute is an abortion rights advocacy group that tracks legislative efforts nationwide. Its principal policy associate for state issues, Elizabeth Nash, joins us now. Elizabeth, is it fair to define trigger laws as the name of a law that's unenforceable but might become enforceable if things change, if key circumstances change?

ELIZABETH NASH: Exactly. What we're talking about are abortion bans that were signed into law and only go into effect if Roe v. Wade is overturned. So they don't have a normal effective date like, say, July 1.

MARTÍNEZ: OK. So based on that, then, explain how states are already set to restrict access to abortions if Roe is reversed.

NASH: So what we have are 13 states that have these so-called trigger bans, right? They go into effect if Roe is overturned. And then you have sort of some nuance in when they go into effect, because there are three of them that go into effect immediately, another seven that go into effect upon AG - the attorney general's certification and then another three that go into effect 30 days after the Supreme Court issues its decision. But in all told, all 13 of these would be in effect within the month.

MARTÍNEZ: So now that we've all seen this draft, do you think more states will urgently enact some sort of trigger law now that we've seen it?

NASH: Well, we have to take into account that some states already have adjourned their legislative sessions and may not be coming back in for a special session. But we might be seeing at least a couple. There's one moving in Ohio right now. It's already had a hearing. So we're waiting to see what might happen there in particular.

MARTÍNEZ: What about states, Elizabeth, where abortion is not addressed at all in the state constitution? What might they do?

NASH: Well, it depends, really, on the political tenor of the state, you know? Right now we have these - right? - already, a quarter of the states, 13 of them, have these trigger bans. And then you have another set of states that have pre-Roe bans or, you know, bans that were in effect before Roe and never repealed. Those states could move to have - to enforce those. And then you have some states like Georgia, where they passed a six-week abortion ban. That ban is not in effect because of the courts. So the attorney general in that state, once we hear from the Supreme Court, may ask the judges to dismiss that case, to allow that six-week ban to go into effect. So there's a series of things that can happen. But I want to stress that this would happen fairly quickly. We're not talking months and years. We're really talking around days and weeks.

MARTÍNEZ: And there are some states that say their constitution doesn't protect abortion rights. So they're going to go with maybe liberty clauses, privacy clauses, equal protection clauses?

NASH: Well, yeah. So in states that are - where the Constitution hasn't been interpreted to protect abortion rights and they do not - and they don't have a constitutional amendment that says there are no protections for abortion rights, yes, there are places that - where we could be looking at liberty protections or equal protections or privacy protections to fight back against abortion bans.

MARTÍNEZ: And Louisiana, Tennessee are two of those states like that. Elizabeth, if Roe is overturned, what kind of court challenges can we anticipate?

NASH: Well, we are going to be - our litigators in the movement are looking at what kinds of constitutional protections there could be based on those various types of clauses because, as you know, abortion is necessary. And it's part of health care. And we need to defend it to the fullest extent.

MARTÍNEZ: What opportunities to abortion rights advocates have for seeking constitutional protections on a state-by-state basis? I know California mentioned - or Gavin Newsom, governor of California, mentioned maybe putting it in the state constitution a couple of days ago.

NASH: Right. So you know, right now from Vermont, we have the very first ballot measure that if approved by the voters will put into the constitution an amendment that says this constitution protects abortion rights. And we have an effort in Michigan, where they're in the signature collection phase. So it's a citizen's petition. And they are looking to protect abortion rights in the - you know, at the November ballot as well. And now we've got California.

MARTÍNEZ: And one more thing really quick, what about states that have abortion bans still on the books from before Roe v. Wade? What happens with those zombie laws?

NASH: Those potentially could be enforced. But some of them, in places like Wisconsin and Michigan, have attorneys general and governors who support abortion rights. So they'll - they are not interested in enforcing them. But places like Arizona and West Virginia, we may see those attorneys general and governor trying to enforce them.

MARTÍNEZ: OK. Elizabeth Nash with the Guttmacher Institute. Elizabeth, thanks.

NASH: Thank you. Transcript provided by NPR, Copyright NPR.