Fueling widespread anguish over this week’s revelation that Roe v. Wade In the coming weeks, it is likely that this reality will be overturned. Roe This would immediately trigger civil and criminal penalties for people who assist others to get abortions in 13 States.
Roe v. WadeThe 1971 landmark case that gives women the right to get abortion access and allows them to become pregnant. Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization holds that because abortion is not a right “deeply rooted in history,” it is not an unenumerated right that warrants constitutional protection. If RoeIf the decision is overturned, each state will determine its own rules regarding legal abortion. This situation would allow states to pass laws that ban abortions completely, including banning exceptions for rape and incest. If the final opinion is in Dobbs reflects Alito’s draft, it would be the first time in history that the Supreme Court takes away a fundamental right.
Quoting the late Justice Antonin Scalia’s dissent in Casey v. Planned Parenthood, a 1992 case which affirmed the fundamental rights to abortion access in Roe, Alito writes, “The permissibility of abortion” is to be resolved “by citizens trying to persuade one another.” This glib reference to democratic deliberation grossly neglects the aftermath that awaits a post-DobbsU.S., and how it would strip persons with uteruses the liberty guaranteed by the Constitution. In reality, citizens cannot reach a consensus on abortion. Overruling RoeTrigger legislation would allow abortion access to be immediately restricted in certain states.
Trigger legislation is a law containing both a substantive and a trigger clause. The substantive provision of a law describes what the law would look like if any precedent were changed. The trigger provisions in most states that have anti-abortion legislation clearly state that abortion restrictions will take effect as soon the law allows. RoeIt is overruled. For example, Louisiana’s RS 40:1061, trigger legislation passed in 2006, bans all abortions without exception and reads, “… this Act shall become effective immediately upon, and to the extent permitted, by the occurrence of … any decision of the United States which reverses in whole or in part, Roe v. Wade … thereby restoring to the state of Louisiana the authority to prohibit abortion.” At present, many other states — Tennessee, Arkansas, Kentucky, North Dakota, Missouri, South Dakota and Utah — have passed anti-abortion trigger legislation that awaits and anticipates the U.S. Supreme Court overruling Roe v. Wade. However, trigger legislation doesn’t have to be as clear as the 2006 Louisiana law. For example, Georgia passed 2019 trigger legislation HB 481,This bans all abortions within six weeks. It also criminalizes any attempts to obtain an abortion after the six-week deadline. These criminal statutes are currently not enforceable. Casey, but Alito’s draft makes clear that the court would be overruling both Roe Casey. This means that a person who has had a six-week-long pregnancy in Georgia would be considered murder. Traveling to another state to obtain an abortive decision would be conspiracy. Assisting someone to obtain an abortion would also be considered conspiracy to murder in a post-abortive situation.Dobbs world. Georgia law makes a fetus a legal person or a resident. It is important to remember that trigger legislation, if not already clear, eschews rule of law. This is a substantial threat for the legitimacy of our representative democracy.
Article III of Constitution exempts trigger legislation from judicial review. This article allows the court to review cases and controversies that arise out of enforceable law. Plaintiffs cannot challenge trigger legislation’s constitutionality because they lack the enforcement power to activate it. Texas’s SB8, which was passed in 2021, is “test case” legislation — a law that opposes case precedent and subjects its constitutionality to judicial review. Test cases, unlike trigger legislation, give the court the opportunity to affirm or overrule an earlier opinion. Test cases arise when private actors predict that enough justices will rule in favor. Test cases and trigger legislation challenge judicial supremacy. But trigger legislation is more dangerous because it avoids the rule, as it cannot be declared unconstitutional. Trigger legislation cannot be declared unconstitutional, as it becomes law only when the court agrees with the precedent it seeks.
Trigger legislation can be a direct threat of democratic legitimacy. Representative democracy requires that elected officials represent the interests and preferences in their constituents. While the legislative process may vary from one state to another, it is generally transparent. A state senator or representative usually drafts a bill and then sends it to the committee for consideration. The bill is then placed on the calendar for debate and voting. Elections serve as an accountability mechanism for voters who are dissatisfied about their representatives (i.e. officials can be removed from office in the following election cycle). This norm is broken by trigger legislation.
Trigger legislation is not enforceable. It operates provisionally and anticipates that the court will overturn undesirable precedents. In extreme situations, such as the Louisiana anti-abortion trigger law (2006), a law that has been unenforceable since 16 years can be made immediately binding on current Louisiana voters. This could create temporary legal instability and presents a notice problem for the public. A fair notice dictate is one of the court tenets that governs our democracy. It requires the government to inform its citizens in a timely manner about illegal activity. Trigger legislation doesn’t allow the government this opportunity. For example, North Dakota has no timeline for enforcing its abortion bans. In effect, once Roe ruled in favor of abortion, and these activities are immediately made illegal and punishable. These states have a post-natal care system.DobbsIt is a grim time in life: If they act within seconds of the termination, the doctor performing the abortion at the clinic or the person helping the pregnant person obtain an abortifaction would be considered a felony. Dobbs Court takes final decision.
Trigger laws can be made law even if they do not have the support of the majority. When there are other pressing political issues (e.g., voting rights in Georgia), citizens and interest groups are less likely to invest resources in repealing legislation that could be put into effect. Ineffectively avoiding mass dissent, the state legislatures can be inattentive and hopeful of a bench overruling precedent and triggering inactive law.
A post-Dobbs U.S. opens the door for other controversial trigger legislation that can bait the majority-conservative Supreme Court. If the court overturns RoeThis strategy could become the preferred strategy for conservatives who want to overrule settled law without condemning trigger legislation. To be clear, by Alito’s rationale, there are other unenumerated rights that the majority-conservative court would likely hold are not “deeply rooted in the Nation’s history” and thus do not warrant constitutional protection. These fundamental rights were created by landmark cases such as Brown v. Board of Education(A 1954 case that outlawed segregated public schools). Gideon v. Wainwright(A 1963 case that guaranteed legal counsel for anyone accused of a crime). Loving v. Virginia (A 1967 case that outlawed state legislation that prohibited interracial marriage). Lawrence v. Texas(A 2003 case that invalidated the sodomy laws which effectively criminalized intercourse with same-sex in 2003). Obergefell v. Hodges(A 2015 case that guarantees the right to marry an individual from the same sex). To offer an illustration of this strategy in effect, the Arkansas legislature can pass anti-interracial trigger legislation in its next legislative session that states: “Interracial marriage is prohibited in the state of Arkansas. This will go into effect if and until the Supreme Court overrules. Loving v. Virginia.” If the court subsequently finds that interracial marriage is not a fundamental right, then the substantive provision would become enforceable law in Arkansas.
The U.S. Supreme Court has been the venue for civil liberties debates that have led to greater democratic freedom. Landmark cases have been described as protecting the constitutional rights for all, but especially the rights of poor people, queer persons, people of colour, and people with the potential to become pregnant. If Alito’s leaked draft is indicative of how the court will rule in DobbsIt should be clear that the conservative majority of judges is not concerned about the legitimacy or constitutional precedent of the law. It doesn’t care about democratic deliberation or whether state legislatures will be the majority. It is, quite clearly, a coalition consisting of jurists that are members of an aggrieved bloc. They want to throw the U.S. democracy republic into more chaos, and trigger legislation only makes this process more efficient.