Trigger Laws

The impending end of a nationwide right to abortion in the United States has been dominating American media coverage and political conversations since May 2, when Politico published a leaked draft opinion from the U.S. Supreme Court that would strike down Roe v. Wade, the ruling that established the right in 1973. Abortion-rights activists have been demonstrating in front of the Court in Washington, D.C.—and, to some controversy, in front of the homes of the Court’s conservative justices. Activist groups are planning nationwide rallies and urging donations to abortion funds that give money and other assistance to women seeking the procedure. Leaders in the Democratic Party are meanwhile taking up the issue publicly as they prepare to leverage it for November's congressional midterm elections. Yet anyone who’s been paying attention to the Court has been expecting the overturn of Roe—and so, a return of the abortion issue to state governments—for years. In fact, there are already “trigger laws” on the books in 13 states, which would ban all or nearly all abortions after a final decision comes down from the Court. What’s happening in the states?

Joshua C. Wilson is the chair of the political science department at the University of Denver, who's researched and written extensively on the politics of abortion in America. As Wilson explains, competing networks of activists—of the kind recently discussed here by Philip Rocco—have been working to shape law and policy on the issue of abortion in U.S. states for decades. Anti-abortion activists, Wilson says, have tended to be more effective, in part since they’ve been on the offensive—trying to impose whatever restrictions they could, despite the broad guarantee established by Roe. With that guarantee gone, Wilson believes the state politics of abortion will change dramatically: Progressive activists will be thinking about how to harness a surge in energy around this issue, while conservative activists will have to decide how to navigate their moment of triumph.

Graham Vyse: What do the politics of abortion look like in America’s state governments right now?

Joshua C. Wilson: In Republican-controlled states, legislatures have put “trigger laws” on the books, which automatically ban abortion whenever Roe should be struck down. These are distinct from older anti-abortion state laws, which Roe invalidated, though some of those may still be on the books and could come back into effect.

There’s nothing really comparable in Democratic-controlled states, though since the beginning of the Trump administration in more progressive states—like Colorado, New York, and California—we’ve started to see efforts to enshrine abortion access in state law. Progressive states are also looking at how they can be destinations for women from other states who are seeking abortions—and what they can do to protect those women and abortion providers.

The trigger laws have been enacted largely in the South and the Midwest. They’re part of a larger process in which more conservative states have been responding to abortion as a political issue that matters to conservative voters. The laws are kind of convenient politically, because they allow conservative state legislators to say, Look, we’ve done what we can do. we’ve said we’ll ban abortion in our state as soon as we can, but the Supreme Court is standing in the way. These lawmakers can say they’re doing something without risking a lot of blowback. After all, until now, what they’ve done won’t have had any real effect.

Vyse: We know that political activist networks have played a major role in developing the conflicting, even explicitly opposing, sets of laws governing Democratic- and Republican-controlled states. How have those networks shaped abortion laws in particular?

Wilson: You can’t talk about the politics of abortion without talking about these activist networks.  They’re in conflict with one another—competing over the issue in different states—but they’re all responding to political parameters set by the Court. Roe and subsequent abortion cases reset what’s possible for activists on both sides. Conservatives have arguably been in the better position most of the time, because they’ve been on the offensive. They’re the ones trying to come up with creative ways to pursue their agenda within the constraints of the Court’s rulings, so they’ve been the engine for a lot of abortion politics. Another advantage has been their ability to speak to their constituents from the position of being, as they see it, under assault.