Two months after the Dobbs ruling, new abortion bans are taking hold

Sarah McCammon

August 23, 2022 / 11:42 am

caption: Abortion rights activists chant slogans as the Indiana Senate debates during a special session in Indianapolis before voting to ban abortions.

WASHINGTON, D.C. — This week marks two months since the U.S. Supreme Court's Dobbs v. Jackson Women's Health Organization decision reversed decades of precedent guaranteeing abortion rights, and the effects of the decision are continuing to unfold as abortion bans take effect around the country.

Well before the opinion was issued on June 24, more than a dozen states had so-called "trigger bans" in place – laws written to prohibit abortion as soon as Roe v. Wade, the 1973 decision that had legalized the procedure for nearly 50 years, was overturned.

Some took effect almost immediately; at least eight states have implemented total or near-total abortion bans, according to the Center for Reproductive Rights.

Others were at least temporarily delayed by litigation, or by brief waiting periods written into the laws. This week, a new round of bans — in Tennessee, Texas, Idaho, and North Dakota – is set to take effect, barring intervention from the courts.

A cascade of "trigger bans" around the country

To a large degree, the impact of these laws already is a reality – even before they're officially implemented – due to multiple layers of restrictions.

In Texas, where abortion has been prohibited after about six weeks of pregnancy since last September under a law that allowed private citizens to sue abortion providers, the shift was already well under way before the Dobbs decision. The state's trigger ban – which prohibits the procedure almost entirely – takes effect this week. But already, there are no clinics providing abortions in Texas, and some have made plans to move out of state to places like New Mexico.

Idaho, too, has an abortion ban in place that relies on civil enforcement, where individuals can sue people accused of illegally providing abortions after about six weeks. The U.S. Department of Justice has sued in an effort to block another, even more restrictive law — Idaho's trigger ban, which is set to take effect Aug. 25.

North Dakota's only remaining clinic has – at least for now – moved its abortion services to Minnesota, where abortion remains legal. Lawyers for the clinic have asked a judge to block the law from taking effect on Friday.

In Tennessee, which already has very limited abortion access because of a ban on abortion after about six weeks of pregnancy, the law scheduled to take effect this week goes even farther, essentially banning all abortions, with no exceptions for rape or incest. The law also lacks explicit exceptions for medical emergencies, although it includes a provision that would allow doctors to mount a defense against felony abortion charges by arguing they intervened to save a pregnant woman's life or avoid the "serious risk of substantial and irreversible impairment of a major bodily function."

Battles continue in state, federal courts

Abortion rights groups have been trying to argue that many state constitutions offer protections for abortion rights.

For groups opposed to abortion rights, like Alliance Defending Freedom, efforts are under way to push states to enforce abortion restrictions.

Erin Hawley, the group's senior counsel, said she hopes to see courts in Wyoming, Arizona, and elsewhere allow abortion bans to take effect.

"I think we'll see in a number of other states, that these laws will come online -– that intermediate courts of appeals and the state supreme courts will hopefully find that there is no state constitutional right to abortion," Hawley said.

There are also federal court challenges. A federal judge is expected to take action this week in response to the Department of Justice suit, which challenges Idaho's trigger ban under a federal labor law.

Post-Roe, state lawmakers consider new abortion laws

The Dobbs decision has prompted some Republican state officials to look at passing new laws. In early August, Indiana lawmakers approved a near-total abortion ban, which takes effect in mid-September.

Elisabeth Smith, state policy and advocacy director with the Center for Reproductive Rights, notes that some abortion rights opponents have proposed legislation designed to prevent people from seeking abortions in other states.

"I think it's important to talk about the fact that we will also likely see novel criminal penalties for abortion providers and helpers, and some states trying to prevent people from crossing state lines," Smith said.

That said, abortion rights advocates are encouraged by the results of a ballot initiative in Kansas earlier this month, in which voters strongly rejected a constitutional amendment that would have opened the door to allow state lawmakers to ban abortion. Smith notes that ballot questions related to abortion are slated to go before voters in several states — among them California, Vermont, Kentucky, and Michigan – in November.

Jennifer Driver is senior director of reproductive rights for the State Innovation Exchange, a group that works with lawmakers trying to increase abortion access, even in a post-Roe environment.

As new restrictions continue to take effect, Driver said more patients who have the means will rely on out-of-state travel or use abortion pills at home. She says doctors and other healthcare providers in many states will continue to face dilemmas when helping patients through medical crises.