'We do not have any plans': The 13 states with abortion-ban 'trigger laws' are completely unprepared to enforce them
Tasos Katopodis/Getty Images; Jenny Chang-Rodriguez
- Trigger laws in 13 states will lead to abortion bans now that the Supreme Court has overturned Roe v. Wade.
- An Insider investigation found agencies in those states have no plans for how to implement the laws.
- Local DAs described starkly different approaches on whether they will prosecute medical providers.
This story is part of an investigative series from Insider examining the demise of abortion rights in so-called "trigger law" states. It was originally published on May 7, 48 days before the Supreme Court ruled in Dobbs v. Jackson Women's Health Organization that abortion is no longer a constitutionally protected right. Read all the stories from "The First 13" here.
Hours after a leaked draft opinion revealed that the Supreme Court is planning to overturn Roe v. Wade, a visibly shaken Sen. Elizabeth Warren spoke outside of the court as protesters gathered. "The Republicans," she said, "have been working toward this day for decades."
But that work did not extend to planning for what comes next. The 13 states in which abortion could soon become a crime are profoundly unprepared for how to go about implementing a ban, an Insider investigation has found.
These states — Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, Utah, Texas, Oklahoma, and Wyoming — have so-called "trigger laws" on the books that take effect once the court strikes down Roe. Some have been in place for as long as 17 years.
After submitting more than 100 records requests since March, and reaching out to nearly 80 state and local officials, Insider found only one state agency that could provide any written plans about how it will roll back a civil right that has existed for nearly half a century. Insider requested information from governors' offices, mayors' offices, state attorneys general, district attorneys, state legislative offices, and health departments in all 13 trigger-law states.
Many of the states have potentially complicated bans that include exemptions for cases of rape, incest, or health of the pregnant person — each of which would require fine-grained judgments by police, prosecutors, healthcare providers, and other officials involved in decisions about how to enforce and comply with the law. None of the states could produce any guidance provided to officials who will be responsible for making those judgments.
Abortion providers and reproductive-rights advocates have been bracing for the Supreme Court's ruling on Dobbs v. Jackson Women's Health since it agreed to hear the case last May. The central focus is a Mississippi law that bans abortion after 15 weeks of pregnancy, a frontal challenge to the standard set by Roe that bars states from prohibiting the procedure before viability — around 24 weeks. The decision is expected in June, but Politico published the leaked draft opinion on Monday.
Legal experts told Insider that they anticipate widespread uncertainty and confusion over what abortion care will look like across the country, as the 13 trigger laws take effect while emboldened lawmakers in around a dozen other states look to pursue additional bans and restrictions.
"It's really district by district, county by county, and the chilling effect is going to be the same regardless, because also prosecutors can change over time. So even if one declines to prosecute or enforce, the next one could," Jessica Arons, a senior advocacy and policy counsel for reproductive freedom at the ACLU, said. "Providers are really left in a situation of trying to suss out their risk level and whether it's safe for them to provide care to their patients or not, and it's a really untenable position for them to be in."
This ambiguity, the experts said, will likely hinder abortion access even in places where the procedure is still legal.
"The chaos and confusion that people are experiencing right now in this moment, even prior to a final decision being handed down, is exactly what we anticipate seeing when the final decision is rendered," Farah Diaz-Tello, a senior counsel and legal director at the reproductive-justice legal organization If/When/How, told Insider. "There are a lot of questions that people have about what is this going to mean, how is it going to be implemented."
"Ultimately, the confusion is a feature and not a bug," she added. "It is exactly part and parcel with the overall project of making abortion inaccessible and even a crime."
The complexities of enforcing of 'draconian laws'
An Insider review of the language in the 13 trigger laws, passed between 2005 and 2022, hints at the confusion to come. In four of the states, North Dakota, Utah, Idaho, and Wyoming, exemptions permit abortions if a person is pregnant as a result of rape or incest; Mississippi also has an exemption for rape. However, according to the statutes in three of those states — Idaho, Mississippi, and Utah — the rape must be reported to law enforcement prior to obtaining an abortion. Idaho and Utah also require reporting in cases of incest.
Yet Insider found that state agencies could not provide guidelines for victims of rape and incest or for the doctors and nurses who will treat them. None of the state attorneys general or county district attorneys that Insider contacted could answer detailed questions about whether they have a plan, or have even convened planning meetings, concerning protocols for law enforcement, child welfare officials, and health providers when these incidents arise.
More than two-thirds of rapes go unreported, according to a 2020 Department of Justice survey.
In all 13 states, the laws allow exemptions to protect the life of the pregnant woman in medical emergencies. (Idaho, Tennessee, Texas, and Wyoming specifically exclude life-threatening risks with a mental, psychological, or emotional cause.) No state agency contacted by Insider in those states could produce protocols for how a life-threatening risk to the pregnant patient would be defined.
The agencies also couldn't produce guidance on what physicians will be expected to do when confronted with life-or-death situations.
Legal experts described other potential scenarios that point to the complexities of enforcement. For example, Diaz-Tello noted, prior to Roe, people who had abortions were sometimes compelled to testify about who performed their procedure and faced contempt charges if they refused. Carol Sanger, a law professor at Columbia University, said that law-enforcement investigations could come into direct conflict with federal privacy law protecting medical records.
"It's one thing to introduce and enact unconstitutional laws that you know your state won't be allowed to enforce. You can advocate for them, you can pass them, you can make lots of statements, and that potentially can win you attention and votes," Elisabeth Smith, the director of state policy and advocacy at the Center for Reproductive Rights, told Insider. "We are now moving into a stage where the Supreme Court, they issue a decision that will allow states to actually enforce for the first time since 1973 some of these draconian laws."
'It makes no sense to do anything'
Over the course of the past two months, Insider sent 116 public records requests to state and local agencies in every trigger-law state. Forty-three of these agencies said they had no responsive records, and more than a dozen denied the request. The remaining agencies did not provide records by publication time.
Just 13 agencies responded to Insider's request with records of any kind. Of these, only the Texas Department of Health and Human Services responded with trigger-law-planning documents. The department provided two "implementation dashboards" listing a few milestones it would have to complete, including updating medical licensing rules, producing provider guidance, and training licensing staff, without any deadlines attached.
Photo by Robert Daemmrich Photography Inc/Corbis via Getty Images
Twenty-four state, county, and city agencies said that they did not have plans for the law going into effect when reached for comment by Insider. Dozens of agencies declined to comment or did not respond to Insider queries.
"It makes no sense to do anything, think about anything, implement anything, or plan to implement anything," Reginald Rogers, the department attorney for the Arkansas Department of Health, said in a March phone call. "We have other items, we're still in the pandemic, so we're not sitting on our hands waiting for something."
A department spokesperson said in late April that the agency "will not engage in planning or implementation of SB 149" — referring to Arkansas' trigger law — "until it comes into effect, and we cannot speculate about how it will be implemented at this time."
A spokesperson for the municipal government of Oklahoma City told Insider that "there has been no discussion" within city government about preparing for the state trigger law to go into effect. Similarly, a spokesperson for the Wyoming Department of Health responded "no" to all of Insider's questions about whether the department has made any plans, produced any documents, or had any discussions about how to implement the state's trigger law.
Asked to explain how the statute would impact Wyoming healthcare providers, the spokesperson said, "Presumably it will make performing an abortion illegal."
Some agencies objected to Insider's questions. "The Shelby County District Attorney's office does not deal in hypothetical situations," Amy Weirich, the district attorney for the Tennessee county, told Insider in an email. "We deal in facts and truth. Any statement on unknown variables is irresponsible and political grandstanding." Tennessee's trigger law was signed into law in 2019.
Most agencies did not provide anything in response to Insider's requests for comment. Others, such as the departments of health of Idaho, North Dakota, Mississippi, and Wyoming, said their agencies aren't involved with enforcement. A Mississippi State Department of Health spokesperson said her agency, which handles inspection and licensing, "will be prepared to move forward appropriately when a decision is issued."
The local government of Kansas City, Missouri, which straddles the state's border with Kansas, claimed the state's trigger law will have no financial impact, according to a record obtained by Insider — meaning that no additional labor by public employees will be required to implement the laws. The city provided Insider with a June 2019 document that stated it was simply "not possible" to determine the fiscal impact of Missouri's trigger law on the city "because pregnant women can cross state lines and obtain abortion services on the Kansas side."
Several state legislatures required fiscal-impact statements when considering their trigger bans, and a few states — Idaho, Oklahoma, and Wyoming — determined that the laws would incur no costs.
Dustin Curtis, the executive director of Students for Life, an anti-abortion organization, said his group campaigned for both Texas and Wyoming's trigger laws. He told Insider that the organization hasn't weighed in on how these states should implement their new laws.
"We really hadn't really given the AGs specific advice," Curtis said. "Our biggest thing for us is just making sure that we do have the AGs who will enforce the law."
A splintered enforcement landscape
There are several hundred counties in the trigger-law states — more than 250 in Texas alone. And there are already indications that district attorneys in some states will approach enforcing abortion bans in starkly different ways. A spokesperson for Idaho's attorney general, for example, said their office lacks the authority to enforce his state's abortion ban. That authority, he said, lies with Idaho's 44 counties.
Some district attorneys who spoke to Insider expressed no hesitation about enforcing their state's trigger law. In Idaho, Twin Falls County's prosecuting attorney, Grant Loebs, said if the trigger law took effect in Idaho, and a law-enforcement agency were to refer an illegal abortion to his office, his next step would be to consider filing charges against the provider.
"We would have to look at that independently and say, 'Oh wow, looks like you do have expert medical testimony that this would have caused the danger to the life of the mother,' and we might agree then and dismiss the case," Loebs said. Or his office might disagree with the healthcare provider, determine that "this is just an excuse you're making up after the fact," and prosecute.
"We don't have the resources to put a doctor on staff to second guess every doctor's decision," he said. "But case-by-case we would look at that kind of evidence in any individual case that came up."
AP Photo/Mark Humphrey, File
Glenn Funk, the Democratic attorney general of Tennessee's 20th judicial district in Nashville, has staked out a strikingly different approach. In September 2020, he declined to defend another Tennessee anti-abortion law and received blowback from the state's Republican governor, Bill Lee. Funk declared then that criminal law should not be used by the state to exercise control over a woman's body and told Insider he stands by that today.
"As long as I am the elected district attorney for the 20th judicial district, I will not prosecute any woman who chooses to have a medical procedure to terminate a pregnancy or any medical doctor who performs this procedure at the request of their patient," Funk said.
In Missouri, a St. Louis alderwoman, Megan Ellyia Green, said her strategy is just that — to encourage local prosecutors not to enforce the statewide ban.
"Even if it becomes criminalized, prosecutorial discretion still exists and so how do we put pressure on prosecutors to agree to not prosecute people," Green told Insider. "That is how we can act locally, and we have to ensure that these draconian laws are not actually enforced against our constituents."
When asked about his plans for enforcing Missouri's trigger law, St. Louis' prosecuting attorney, Wesley Bell, told Insider in a statement, "We do not have any plans in place currently, but we are monitoring this unfortunate infringement on the fundamental rights of women, along with everyone else."
There may be other forms of resistance from Democratic cities in trigger-law states governed by mayors who support abortion rights. In Idaho, Boise's mayor, Lauren McLean, for example, released a statement Tuesday saying, "I'm deeply saddened, and very concerned, by the news from the Supreme Court. … No one should have to flee their state to access safe abortion care. I remain steadfast in my support for all people who need access to abortion care and stand with them in fighting for privacy in health care decisions."
Mayor Sylvester Turner of Houston also spoke out this week against the "elimination of a woman's right to choose." Several emails from the city government of Houston, obtained via a public-record request, illustrate frustration and disgust with state abortion laws, including SB 8, a 2021 statute banning abortions after six weeks of pregnancy.
"As long as Roe is still the law, this thing isn't just unconstitutional, it is crazy," Houston's director of government relations wrote in a December 2021 email to coworkers. "Our Supremes are awful."
Clinics have 'a number of contingency plans'
Although state and local governments haven't prepared for trigger laws to take effect, abortion clinics have. Tammi Kromenaker — the clinic director for Red River Women's Clinic, the only abortion clinic in North Dakota — told Insider the clinic has been preparing "a number of contingency plans" since the Supreme Court agreed to hear Dobbs v. Jackson Women's Health.
Kromenaker said the clinic is considering relocating to northwest Minnesota, a few minutes' drive from its current location in Fargo. Depending on the state attorney general's interpretation of the Supreme Court decision, the clinic may challenge the state in court.
"We certainly have never considered closing down completely," Kromenaker said. "That's just something I can't stomach. I literally cannot even fathom closing our doors and saying, 'OK, patients we've been serving for the past 24 years, you're on your own. Try to go to Minneapolis, because that's the next closest provider.'"
Minneapolis is about a four-hour drive from Fargo. Kromenaker said that many of the clinic's patients — who come from North and South Dakota and parts of Minnesota — already have to drive three to five hours to get to Fargo.
Bonyen Lee-Gilmore, the vice president of strategy and communications for Planned Parenthood of the St. Louis Region and Southwest Missouri, pointed out that regardless of what happens with Roe, abortion is already extremely difficult to obtain in the state due to a slew of previous anti-abortion measures. Only around a dozen patients each month access abortion services at the state's last clinic in St. Louis, she said, with far more Missourians going out of state for care.
Photo by Neeta Satam for The Washington Post via Getty Images
"We are absorbing 100% of the costs of travel [and] lodging. We're connecting patients with abortion funds from all 50 states depending on what they need and who they qualify with. We help them kind of piece together all the pieces that are required to get abortion care now in this country," Lee-Gilmore said. "We won't be deterred from doing the work."
She has yet to hear anything from the state of Missouri or any of its agencies about how they plan to enforce the state's trigger law, which would take effect immediately after the court overturns Roe.
Matt Drange, Esther Kaplan, and Oma Seddiq contributed reporting.
Clarification: An earlier version of this story stated that Oklahoma's trigger statute had no exemptions. While the text of the law does not include any exemptions, legal experts say the statute preserves a pre-Roe abortion ban with an exemption to save the pregnant woman's life.
Contributer : Business Insider https://ift.tt/9Nga4dv
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