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After Supreme Court Leak, Republican-led States Ready Legislation to Ban or Criminalize Abortion

10 minute read

Less than 48 hours after a leaked draft decision showing the Supreme Court set to overturn Roe v. Wade, Republicans in the Louisiana House of Representatives advanced a bill classifying abortion as homicide from “the moment of fertilization” and allowing prosecutors to charge both patients and providers with murder.

“We cannot wait on the Supreme Court,” State Rep. Danny McCormick, the bill’s sponsor, said during a committee hearing on Wednesday.

Louisiana already has a trigger law in place that would let the state immediately ban abortion if the final Supreme Court decision does in fact overturn Roe v. Wade. But Brian Gunter, a pastor who worked with McCormick on the bill, characterized the complete ban as “woefully insufficient.” Financial penalties for violating the law were not enough, he explained. “No compromises, no more waiting,” he said at the hearing. The bill passed out of the committee with a 7-2 vote.

While the Louisiana bill is more extreme than most other states’ proposed legislation, it exemplifies a larger trend sweeping Republican-led state legislatures nationwide. Emboldened by the leaked Supreme Court draft opinion, many states are scrambling to shore up their anti-abortion legislation or preparing to revive old laws that impose significant penalties. Consequences include lengthy prison sentences for providers, suspending physicians’ medical licenses, and sizable fines on people who perform abortions. Even as national Republicans emphasize that fears of prosecutions are overblown, state lawmakers are readying laws that will not just ban abortion, but criminalize it.

Louisiana State Representative Danny McCormick speaks to protesters in Baton Rouge as they gather outside the state capitol to rally against Louisiana's stay-at-home order and economic shutdown, April 25, 2020.Chris Graythen—Getty Images

“If the draft opinion that we saw earlier this week is anything close to the actual opinion, it’s going to give state legislatures carte blanche to restrict, ban abortion in all sorts of different ways,” says David S. Cohen, a law professor at Drexel University’s Kline School of Law. “It says ‘Get prepared with the most extreme bills possible. And when we give you the go ahead, hit the ground running.’”

Conservative state lawmakers’ eagerness to act aggressively stands in contrast to most Republican in the U.S. Congress, who largely avoided talking about the substance of the Supreme Court draft this week, in favor of focusing on the leak. Some Republican governors also pumped the brakes, saying they wanted to see how the Supreme Court ultimately rules before calling special legislative sessions.

But it’s clear that as soon as the Supreme Court hands down its final decision in Dobbs v. Jackson Women’s Health Organization, the case over a Mississippi abortion law challenging Roe, that anti-abortion state legislators will be ready. Conservative-led states had already introduced more than 500 abortion restrictions from Jan. 1 through April 15 of this year. If the Supreme Court does overturn Roe, about half of the states in the U.S. will likely quickly ban abortion. That includes 13 states that have trigger laws, which would make abortion illegal soon after the decision comes down. But some of these laws require different actions to make them take effect, and abortion opponents are using this time before the final decision to get their strategies and paperwork in place.

Anti-abortion state lawmakers seize the moment

Louisiana lawmakers and advocates who spoke in favor of the bill making abortion a homicide this week appeared emotional at the prospect of successfully implementing their goal. Critics said the bill was unconstitutional and warned about its unintended consequences. The way the bill is written, experts believe in vitro fertilization and emergency contraception pills could also trigger criminal charges. The Louisiana bill differs from other states’ proposed legislation because it appears to allow the prosecution of the pregnant person as well, not just abortion providers. That’s something abortion opponents have avoided in recent years, but last month a Texas woman, Lizelle Herrera, was arrested over an alleged self-induced abortion, and if Roe is overturned, experts predict more states will explore additional types of penalties.

In Arkansas, the state’s trigger ban will make abortion a felony except to save the life of the mother. To take effect, the state’s attorney general must certify that the Supreme Court has in fact overturned Roe.

Read More: The Battle Over the Future of the Anti-Abortion Movement if the Supreme Court Overturns Roe v. Wade

Arkansas State Sen. Jason Rapert, who introduced the trigger law, took to Facebook Live after the leaked draft this week to outline the plan. “As soon as that decision is released, we’ll end all abortion in Arkansas except to save the life of the mother,” he told his listeners. “What’s required as soon as that decision is, within minutes, the attorney general of the state of Arkansas should certify that the Roe decision is legitimate and that immediately we see that we’ll end abortion.”

Rapert told TIME he was initially concerned about whether the state’s leadership would act because Arkansas earlier this year rejected a Texas-style bill that would allow private citizens to file lawsuits to enforce an abortion ban. So he wrote to the attorney general’s office this week to remind them of the responsibility added on the Facebook video that he would personally make sure his state followed through. “If we have anybody within the state of Arkansas, just like they had at the U.S. Supreme Court, that would try to interfere, that would try to disrupt the enforcement of Act 180, I will call for the legislature to convene and to impeach any such official immediately,” he said.

Arkansas Attorney General Leslie Rutledge, a fellow Republican, indicated she is ready to certify the trigger law too. “It will be my honor and a privilege of my lifetime to do just that,” she told reporters this week.

In Missouri, which also has a trigger ban in place, the state’s attorney general said he would also be prepared “immediately” to issue the opinion to put the state’s law into effect. South Dakota Governor Kristi Noem said she would call for a special legislative session, and lawmakers in Nebraska and Indiana have called on their governors to do so too. Oklahoma has a trigger ban and its state also moved ahead with additional legislation this week. Oklahoma Gov. Kevin Stitt signed a Texas-style abortion ban on Tuesday that prohibits abortions after about six weeks of pregnancy and allows private citizens to sue abortion providers. “I want Oklahoma to be the most pro-life state in the country,” Stitt tweeted upon signing the legislation. The ban took effect immediately, and the Oklahoma Supreme Court denied an emergency request to stop the bill.

Read More: Democrats Vow to Protect Reproductive Rights But Can’t Actually Do Much

In Ohio, where the state legislature remains in session, state legislators are still considering two trigger ban bills that they could move before the Supreme Court rules. In the meantime, Republican Gov. Mike DeWine said on Tuesday he would have the state’s attorney general seek to revive a 2019 state law that bans abortions after fetal cardiac activity is detected, which happens as early as six weeks into pregnancy, before many people know they are pregnant. The law has been blocked by courts since soon after DeWine signed it.

“I’m asking him to immediately go into court and ask the federal court to lift the stay that is on the bill that I have already signed,” DeWine said Tuesday after he won his primary race.

Idaho, which has a trigger law set to take effect 30 days after the Supreme Court issues its ruling, is also still pursuing a new law the state recently passed that allows Texas-style civil lawsuits against abortion providers. The state Supreme Court had blocked the law while a legal challenge against it proceeds, but last week the Idaho attorney asked the court to lift the stay and let the law take effect.

Resurrecting pre-Roe abortion bans

Some states already have abortion bans on the books that were passed before the 1973 Roe v. Wade decision established the constitutional right to abortion. In those cases, some states may be able to simply begin enforcing those laws again immediately. If a judge has ruled them unconstitutional, officials would need to ask a court to allow them to go into effect.

That’s the case in West Virginia, where the state’s trigger law dates back to the mid-1800s and makes abortion a felony punishable with three to 10 years in prison. That old law was never formally repealed; a 1975 court ruling merely blocked the law on the grounds that it was unconstitutional under the precedent established by Roe v. Wade. So if the Supreme Court overturns Roe, state officials would just have to request that the state supreme court lift the injunction.

Read More: Republican States Crack Down on Access to Abortion Pills as Supreme Court Decision Looms

That could happen extremely quickly, says Anne Lofaso, a law professor at West Virginia University’s Supreme Court Clinic. “The attorney general would immediately go to court and ask them to lift the injunction junction,” she says. “They could do it in days. It could be a day.”

Abortion rights supporters could challenge that move in court, Lofaso adds. But even in that case, West Virginia’s Republican-led legislature could pass new legislation fairly quickly.

Other states have passed abortion restrictions more recently that have been blocked by courts but which they will try to bring back in the absence of Roe. Georgia does not have a trigger law, but in 2019 it passed a law that would ban nearly all abortions after about six weeks. That law was challenged and is on hold at the 11th Circuit Court of Appeals pending the Supreme Court decision. State Rep. Ed Setzler, who sponsored the law, told TIME he is confident the law is “exactly where it needs to be” to go into effect. “As soon as Dobbs comes out, I think one can expect that the 11th will issue their opinion on the Life Act in Georgia, based on the Dobbs holding,” he says.

The law also provides “full legal recognition” to fetuses after cardiac activity by allowing parents to claim the fetus as a dependent on their state taxes and saying fetuses will be included in “population based determinations” for the state. Setzler would ideally like to prohibit abortions beginning at conception, but sees putting his law into effect as a good next step.

“As people become more aware and come face to face with the value of life in utero, perhaps we can get where we need to be, which is that we protect all life in the womb,” he says.

This is where many abortion opponents would like to go, and where experts say states are likely to eventually head if there is no federal protection for the right to abortion.

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Write to Abigail Abrams at abigail.abrams@time.com