Roe v. Wade Is under Threat: What Will We Do About It?

Roe is going down,” declared Marjorie Dannenfelser, president of the pro-life Susan B. Anthony List, at last week’s Conservative Political Action Conference (CPAC). The threat of a post-Roe world has been ever more real since President Trump nominated Justice Neil Gorsuch to the Supreme Court, followed by last year’s confirmation of Justice Brett Kavanaugh.

If (or when) the landmark 1973 Roe v. Wade decision is overturned, the responsibility to regulate abortion care will fall to the states. And many states are already taking action in anticipation of that reversal. Last month Arkansas became the most recent state to pass a “trigger law”—a bill that automatically outlaws most abortions the moment Roe v. Wade is overturned. The bill, SB 149, passed the state House of Representatives 72 to 20.

Trigger laws generally have two parts. The first specifically bans abortions. These laws, if brought before a current court, would be found unconstitutional, as they directly violate the existing precedent. These sections rely on the second, and equally dangerous, piece of the trigger law. The trigger provision states that the meat of the law, the substantive section that outlaws a key piece of women’s healthcare, will not take effect until a change in the federal law allows that problematic piece to be upheld. While this trigger provision could technically be used in any case on unconstitutional legislation, it is far and away most utilized on issues of abortion care.

Four other states in addition to Arkansas have enacted these dangerous provisions: Mississippi, Louisiana, North Dakota, and South Dakota. These trigger laws, all passed since 2005, clearly define the legal and literal landscape of women’s healthcare in an increasingly likely post-Roe world. South Dakota passed its trigger law immediately following the history-making decision, then repealed it as states were allowed to introduce restrictive legislation, before reintroducing and again passing the statute.

Some states, in an effort to be slightly more democratic, have introduced and passed what are known as intent statements. These statutes declare a legislative body’s intent to pass laws that are currently prohibited under the Supreme Court precedent, but they do not include substantive policy sections immediately banning abortion care. These codifications of intent are slightly more popular than trigger laws. Arkansas, Kansas, Kentucky, Louisiana, Missouri, North Dakota, and Ohio have all passed legislation of this type. Like Arkansas, Louisiana, and North Dakota, Missouri, is well on its way to passing a trigger law too, joining its brethren in infamy and disregard for women’s healthcare.

From this breadth of legislative action, it would be fair to assume that Roe v. Wade is an unpopular decision, nationally. In fact, the popularity of the Supreme Court’s ruling is at an all-time high, according to a recent Kaiser Family Foundation poll. Some states have taken steps to recognize and protect this popularity and a woman’s right to choose. Just this January, New York State enacted new protections for abortion rights, including permitting late-term abortions when the mother’s life is at risk. Nine other states have also passed protections for abortion care, ensuring that a post-Roe landscape isn’t quite so desolate.

So, what can you do to create a better environment for anyone in need of abortion care? For one, be sure to vote in every election, especially the local ones. State legislative bodies will be the first line of defense if the landmark decision is overturned, so it’s critical to elect pro-choice legislators. Donate to groups like NARAL, Planned Parenthood, and the National Abortion Federation. Get out there and be a voice for this cause. Read stories on tags like #ShoutYourAbortion and #OneInFour. Attend local or regional protests. Make it clear we won’t go back without a fight.