States Prepare 'Trigger Bills' To Outlaw Abortion If 'Roe' Overturned

May 19, 2019
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LULU GARCIA-NAVARRO, HOST:

There's been a wave of anti-abortion legislation this year in states led by Republicans this past week. Lawmakers in Alabama and Missouri passed some of the strictest laws regulating abortion in the country. Alabama's law is a near total ban on the procedure with no exception for cases of rape or incest. Almost as soon as these new laws pass, they're put on hold by the courts. But supporters expect that. Their goal is to have the Supreme Court weigh in and overturn Roe v. Wade. Jackie Fortier of StateImpact Oklahoma explains how some states are already preparing for a post-Roe world.

JACKIE FORTIER, BYLINE: If the Supreme Court ever overturned Roe v. Wade, abortion wouldn't simply go away, rather the power to legalize or outlaw abortion would devolve right back to each individual state. Many states aren't waiting around. Lawmakers in New York and Vermont, for example, have taken steps to ensure abortion will remain legal and accessible if Roe is struck down. And conservative-led states like Oklahoma are doing the opposite. Republican Greg Treat leads the Oklahoma State Senate.

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GREG TREAT: If Roe v. Wade ever gets overturned, we won't be prepared. That's the nexus of this bill.

FORTIER: He's talking about a trigger bill. The idea is that it would immediately criminalize abortion everywhere in Oklahoma on the day that Roe is overturned. That decision would be the trigger. Elizabeth Nash tracks state legislation for the Guttmacher Institute, a reproductive rights group.

ELIZABETH NASH: Those bills are called trigger laws because the effective date is delayed until that court case comes down from the Supreme Court that rolls back abortion rights.

FORTIER: Seven states already have them, and Texas is thinking about it. But the most conservative anti-abortion advocates don't like trigger bills because they're too hypothetical. They don't do anything to stop abortion now. Here's Oklahoma Republican State Senator Joseph Silk.

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JOSEPH SILK: It does absolutely nothing. And you can ask them, what does that do for the kids that are being killed today and this week and this year? Nothing.

FORTIER: Silk wants an immediate abortion ban with no exceptions for rape, incest or life of the mother. Supporters of the ban thronged the Capitol in Oklahoma City in February.

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UNIDENTIFIED PROTESTER: It calls the taking of an unborn child's life exactly what it is.

UNIDENTIFIED PROTESTERS: Murder.

FORTIER: That total ban on abortion failed, but the trigger bill kept moving forward. And those protesters kept targeting Treat and other Oklahoma Republicans, accusing them in billboards and flyers of not being anti-abortion enough. Here's Treat.

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TREAT: I've been called every name in the book these past few weeks. I've had my Christianity questioned. I've had a member of my own caucus hold a press conference and call me a hypocrite today.

FORTIER: To placate the far-right critics, Senate leader Treat is proposing something else, an amendment to the state constitution. It would make clear that nothing in Oklahoma law secures or protects the right to an abortion. On the floor of the state Senate, Treat said it would keep the state Supreme Court in check.

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TREAT: I ask you to protect us in the event that Roe ever does get turned over - that we're not stuck at another hurdle with the Oklahoma Supreme Court standing in our way.

FORTIER: Supporters of reproductive rights don't like constitutional amendments because they're so permanent. They effectively tie the hands of future state lawmakers on the abortion issue, even if the views of voters change over time. Democrats in Oklahoma oppose the amendment, but so did Republican lawmaker Joseph Silk. For him, it was just like the trigger bill. It didn't go far enough.

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SILK: It's going to add on to that legacy that we have of death and just status quo, pro-life policy that does nothing.

FORTIER: For now, Oklahoma Republican lawmakers have hit the pause button on the constitutional amendment bill, though it'll probably come up next legislative session. If it goes through then, it will still have to go before voters as a ballot question in 2020. For NPR News, I'm Jackie Fortier in Norman, Okla.

GARCIA-NAVARRO: This story is part of a partnership between NPR, StateImpact Oklahoma and Kaiser Health News. Transcript provided by NPR, Copyright NPR.