- Thirteen states have abortion trigger laws that will ban abortions when the Supreme Court overturns Rowe v. Wade.
- An Insider investigation found that agencies in those states have no plans on how to enforce the law.
- Local district prosecutors said they would take very different approaches on whether to prosecute medical service providers.
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Hours after the leaked draft opinion revealed that the Supreme Court was planning to overturn Rowe against Wade, a visibly shaken Senator Elizabeth Warren spoke to the court as protesters gathered. “Republicans,” she said, “have been working on this day for decades.”
But this work does not extend to planning what follows. The 13 states where abortion may soon become a crime are deeply unprepared for how to enforce the 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” in the books that come into force after the coup. down Roe. Some of them have been in place for 17 years.
After submitting more than 100 applications for records since March and contacting nearly 80 state and local officials, Insider has found only one government agency that could provide any written plans on how to repeal existing civil law. half a century. Insider requested information from governor’s offices, town halls, attorneys general, district attorneys, state legislatures and health departments in all 13 states of the enacted law.
Many states have potentially complex bans that include exceptions for rape, incest, or a pregnant woman’s health – each of which will require detailed sentences from police, prosecutors, health care providers and other officials involved in deciding how to we enforce and abide by the law. None of the states can give guidance to the officials who will be responsible for making these decisions.
Abortion providers and reproductive rights advocates have been preparing for the Supreme Court’s Dobbs v. Jackson Women’s Health ruling since it agreed to hear the case last May. The central focus is the Mississippi Act, which bans abortion after 15 weeks of pregnancy, a frontal challenge to the standard set by Roe, which bans states from banning the procedure before viability – about 24 weeks. The decision is expected in June, but Politico released the expired draft opinion on Monday.
Legal experts told Insider that they expect widespread uncertainty and confusion about what abortion care will look like across the country as the 13 enacting laws come into force, while promoted lawmakers in about a dozen other countries seek to pursue additional bans. and restrictions.
“It really is a county by county, county by county, and the chilling effect will be the same, because prosecutors can change over time. So even if one refuses to persecute or impose, the next can, “said Jessica Arons, a senior advocate and political adviser on reproductive freedom at the ACLU. “Providers are really left in a situation to try to determine the level of risk and whether it is safe for them to provide care to their patients or not, and this is a really untenable position for them.”
This ambiguity, experts said, is likely to prevent access to abortion even in places where the procedure is actually still legal.
“The chaos and confusion that people are experiencing right now, even before the final decision is made, is exactly what we expect to see when the final decision is made,” said Farah Diaz-Telo, senior adviser and legal director. Reproductive Justice Organization If / When / How, told the Insider. “There are a lot of questions that people have about what this will mean, how it will be implemented.”
“Ultimately, confusion is a characteristic, not a mistake,” she added. “It’s exactly an integral part of the whole project to make abortion inaccessible and even a crime.”
The complexity of enforcing “dragon laws”
An internal review of the language in the 13 trigger laws passed between 2005 and 2022 hints at impending confusion. In four of the states, North Dakota, Utah, Idaho and Wyoming, the exceptions allow abortion if a person is pregnant as a result of rape or incest; Mississippi also has an exception for rape. However, according to the statutes of three of these states – Idaho, Mississippi and Utah – rape must be reported to law enforcement before an abortion can be performed. Idaho and Utah also require reporting incest.
However, Insider found that government agencies could not provide guidance to victims of rape and incest or to the doctors and nurses who would treat them. None of the Attorneys General or District Attorneys contacted by Insider could answer detailed questions about whether they had a plan or even convened planning meetings on protocols for law enforcement, child protection officials, and health care providers when these incidents occur.
More than two-thirds of rapes remain undeclared, according to a 2020 study by the Ministry of Justice.
In 12 states – all except Oklahoma – laws allow exceptions to protect a pregnant woman’s life in an emergency. (Idaho, Tennessee, Texas, and Wyoming explicitly rule out life-threatening mental, psychological, or emotional risks.) No government agency contacted by Insider in those states could draw up protocols on how life-threatening the risk to a pregnant patient would be. be defined.
The agencies also could not provide guidance on what doctors are expected to do when faced with life or death situations. No agency in Oklahoma, where the trigger law contains any exceptions, has provided guidance to doctors who will have to face the prospect of leaving a pregnant patient to die when an abortion could save their lives.
Legal experts have described other potential scenarios that indicate the complexity of implementation. For example, Diaz-Telo noted that before Rowe, people who had abortions were sometimes forced to testify about who performed their procedure and were accused of disrespect if they refused. Carol Sanger, a law professor at Columbia University, said law enforcement investigations could come into direct conflict with the federal privacy law, which protects medical records.
“It is one thing to introduce and adopt unconstitutional laws that you know your state will not be allowed to enforce. You can stand up for them, you can accept them, you can make a lot of statements, and that can potentially get your attention and votes, “Elizabeth Smith, director of public policy and advocacy at the Center for Reproductive Rights, told Insider. “We are now at a stage where the Supreme Court is issuing a ruling that will allow states to actually apply some of these draconian laws for the first time since 1973.”
“There’s no point in doing anything.”
In the last two months, Insider has sent 116 requests for public records to state and local agencies in each state with a trigger law. Forty-three of these agencies said they had no responsible records, and more than a dozen rejected the request. The other agencies did not provide records at the time of publication.
Only 13 agencies responded to Insider’s request with records of all kinds. Of these, only the Texas Department of Health and Human Services responded with planning documents for the trigger law. The department provided two “implementation boards” listing several stages that will have to be completed, including updating the rules for medical licensing, drafting guidelines for suppliers and training of licensing staff, without deadlines.
State election activists in Austin, Texas. Gov. Greg Abbott signed a state trigger law in June 2021. Photo by Robert Daemmrich Photography Inc / Corbis via Getty Images
Twenty-four state, county and city agencies categorically acknowledged that they had no plans for the law to take effect when asked for comment by Insider. Dozens of agencies declined to comment or did not respond to Insider’s inquiries.
“There’s no point in doing anything, thinking about anything, implementing anything, or planning to implement anything,” Reginald Rodgers, an Arkansas Department of Health attorney, said in a telephone interview. March “We have other items, we are still in the pandemic, so … we are not …
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