A slate of restrictive state abortion laws, including so-called trigger laws, are set to take effect this week, putting access to abortion further out of reach for millions of women as Republican-led states rush to limit the procedure since the Supreme Court’s reversal of Roe v. Wade.
Trigger laws in three states – Idaho, Tennessee and Texas – will take effect Thursday, banning abortions in their respective states with few exceptions, though litigation continues around certain aspects of some of those states’ bans. These laws were designed to take effect 30 days following the US Supreme Court’s transmission of its judgment overturning Roe v. Wade – a procedural step by the court that occurred on July 26.
On Saturday, an Oklahoma law enacting higher criminal penalties for performing illegal abortions takes effect, adding to the state’s already tough laws prohibiting the procedure.
For about 9.9 million women of reproductive age (15-49) in these five states, access to abortion will be impacted by these laws, according to the Guttmacher Institute, a research and policy organization focused on sexual and reproductive health that supports abortion rights. With these laws in place, nearly one-third of US states will have restrictions or a near-total ban on abortion, according to abortion rights groups.
Before Thursday, abortion was already effectively banned in Texas, with clinics ceasing abortions as result of two Texas laws that could open them up to civil suits.
Texas’ trigger law, passed in 2021, makes abortions illegal unless the pregnant woman is at risk of death or “substantial impairment of a major bodily function.” It does not provide exceptions in cases of rape or incest.
Abortions up to six weeks of pregnancy had been available in Tennessee, but the law going into effect on Thursday bans abortions at all stages of pregnancy, except when necessary to prevent the pregnant woman’s death or serious risk of “substantial and irreversible impairment” of a bodily function. Like Texas, Tennessee would also not allow for abortions in cases of rape or incest.
Idaho had also recently outlawed abortions after fetal cardiac activity is detected, which can occur around six weeks into pregnancy. Idaho’s trigger law prohibits performing abortions unless necessary to prevent the death of the pregnant woman, or in situations of rape or incest that have been reported to law enforcement. A federal judge issued a preliminary order Wednesday blocking enforcement of Idaho’s ban in certain medical emergencies, granting a request from the Biden administration, which had argued that Idaho’s ban opened doctors up to prosecution for abortion care they were obligated to offer under federal law.
The Idaho decision came a day after a dueling decision in a Texas case that concerned how that state’s abortion ban interacted with federal law setting standards for emergency room care.
The Biden administration has argued that the federal law – known as the Emergency Medical Treatment and Active Labor Act or EMTALA – obligates doctors to offer abortion care to patients who are facing the threat of death or other serious health risks because of a pregnancy. A federal judge in Texas late Tuesday pushed back on that interpretation, granting a request from Texas and a national organization that the judge block the administration from using the law to require that providers offer abortion care for emergency patients in the face of a state ban on the procedure. In Idaho, the judge agreed with the Justice Department arguments that EMTALA preempted state abortion bans when those bans would criminalize procedures for medical emergencies contemplated by the federal law.
Both cases could be appealed, setting up the possibility that the Supreme Court may be asked in the coming weeks to weigh in on the reach of the federal law and whether it preempts state abortion bans in emergency care situations.
Additionally, organizations that offer financial and logistical assistance to people seeking abortions filed a federal lawsuit this week in Texas asking for the court to block the enforcement of its trigger ban and other bans on abortion for conduct that happens out of state.
North Dakota’s trigger law that bans abortions in most circumstances was set to take effect on Friday, but a state judge on Thursday issued a preliminary injunction, blocking the ban.
Judge Bruce Romanick, of the South Central Judicial District in Burleigh County, said he was issuing the preliminary injunction to maintain the status quo in the state, while the challenge to the law brought by Red River Women’s Clinic, the state’s sole abortion clinic, unfolded in court.
The state currently allows abortion up until 20 weeks or more post-fertilization.
North Dakota’s abortion ban, approved in 2007, would make it a felony to perform an abortion in the state with exceptions for the life of the mother or in cases of rape or incest.
This story has been updated with additional developments.